What is the current provision for criminal transfer petitions in the Supreme Court?

For matters governed by the Bharatiya Nagarik Suraksha Sanhita, 2023, the current Supreme Court transfer provision is Section 446 BNSS. Section 406 CrPC remains relevant to proceedings saved under the repeal-and-savings framework.

What is Section 25 CPC used for?

Section 25 of the Code of Civil Procedure, 1908 empowers the Supreme Court, where expedient for the ends of justice, to transfer a suit, appeal or other civil proceeding from a High Court or Civil Court in one State to a High Court or Civil Court in another State.

What is Article 139A used for?

Article 139A(1) permits withdrawal to the Supreme Court of cases involving the same or substantially the same substantial questions of general importance, while Article 139A(2) permits transfer of a case, appeal or other proceeding from one High Court to another High Court when expedient for the ends of justice.

Supreme Court Procedure

Transfer Petition in the Supreme Court: Article 139A, Section 25 CPC and Section 446 BNSS

Updated for the Bharatiya Nagarik Suraksha Sanhita, 2023 and current Supreme Court Rules

Overview: Transfer petitions in the Supreme Court arise under different constitutional and statutory provisions. Article 139A deals with transfer or withdrawal of cases involving High Courts, Section 25 CPC governs inter-State transfer of civil proceedings, and Section 446 BNSS is now the current criminal-transfer provision corresponding to former Section 406 CrPC.

Four principal transfer routes

Article 139A(1)	Withdrawal to the Supreme Court of cases involving the same or substantially the same substantial questions of law of general importance pending before the Supreme Court and one or more High Courts, or before two or more High Courts.
Article 139A(2)	Transfer of a case, appeal or other proceeding from one High Court to another High Court when the Supreme Court considers transfer expedient for the ends of justice.
Section 25 CPC	Transfer of a suit, appeal or other civil proceeding from a High Court or Civil Court in one State to a High Court or Civil Court in another State.
Section 446 BNSS	Transfer of a criminal case or appeal from one High Court to another High Court, or from a criminal court subordinate to one High Court to a criminal court of equal or superior jurisdiction subordinate to another High Court.

Article 139A(1): cases involving common substantial questions of law

Article 139A(1) applies where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts, or before two or more High Courts, and those questions are substantial questions of general importance.

The Supreme Court may act on its own motion, on an application by the Attorney-General of India, or on an application by a party to one of the cases. The Court may withdraw the High Court case or cases and decide them itself.

After deciding the common question of law, the Supreme Court may return a withdrawn case to the High Court with a copy of its judgment, and the High Court must then dispose of the case in conformity with that judgment.

Current procedural reference: Recent Supreme Court records identify petitions under Article 139A(1) as filed with Order XL Rule 1 of the Supreme Court Rules, 2013.

Article 139A(2): transfer from one High Court to another

Article 139A(2) authorises the Supreme Court, where it considers transfer expedient for the ends of justice, to transfer any case, appeal or other proceeding pending before one High Court to another High Court.

This constitutional power is distinct from Section 25 CPC. Article 139A(2) is specifically concerned with transfer between High Courts, while Section 25 CPC also covers transfer between Civil Courts in different States.

Order XLI of the Supreme Court Rules

Order XLI governs petitions under Article 139A(2) and Section 25 CPC. A transfer petition must clearly state the relevant facts, identify the High Court or Civil Court where the proceeding is pending, set out the grounds for transfer, and be supported by an affidavit.

The petition is ordinarily placed before the Court for preliminary consideration and directions regarding notice.

Section 25 CPC: Supreme Court power to transfer civil cases

Section 25 of the Code of Civil Procedure, 1908 empowers the Supreme Court, on the application of a party and after notice and hearing, to transfer a suit, appeal or other civil proceeding from a High Court or Civil Court in one State to a High Court or Civil Court in another State if transfer is expedient for the ends of justice.

India Code - Code of Civil Procedure, 1908

Important features of Section 25 CPC

The application must be made by a party.
The transfer request may be considered at any stage of the proceeding.
The application is made by motion and must be supported by an affidavit.
The transferee court may retry the matter or continue from the stage at which it was transferred, subject to the Supreme Court's directions.
If an application is frivolous or vexatious, the statutory provision permits an order for compensation.
The substantive law applicable remains the law that the original court ought to have applied.

Common grounds in civil transfer petitions

The statute does not provide an exhaustive list of grounds. In practice, the Supreme Court examines whether transfer is required for the ends of justice. Depending on the case, relevant factors may include:

Serious difficulty in attending proceedings at the existing forum.
Distance, financial hardship and practical access to justice.
Care of minor children or dependent family members.
Connected proceedings pending in another State.
Medical or personal circumstances supported by material.
Convenience of parties and witnesses, weighed against prejudice to the opposite party.
The possibility of consolidating related disputes where legally appropriate.

No automatic transfer: Convenience alone does not create an absolute right to transfer. The Supreme Court balances the facts of both sides and the ends of justice in the particular proceeding.

Criminal transfer: Section 406 CrPC and Section 446 BNSS

The original version of this article referred to Section 406 of the Code of Criminal Procedure, 1973. That was the governing provision before commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023.

For matters governed by the BNSS, the corresponding current provision is Section 446 BNSS, titled "Power of Supreme Court to transfer cases and appeals." The Supreme Court's current case-category list expressly describes criminal transfer petitions as proceedings under "Section 406 CrPC / Section 446 BNSS."

India Code - Bharatiya Nagarik Suraksha Sanhita, 2023

Section 446 BNSS: definition and scope

Section 446(1) authorises the Supreme Court, where transfer is expedient for the ends of justice, to transfer a particular criminal case or appeal from one High Court to another, or from a criminal court subordinate to one High Court to a criminal court of equal or superior jurisdiction subordinate to another High Court.

Under Section 446(2), the Supreme Court may exercise this power on the application of the Attorney-General of India or a party interested. The application must be made by motion and, except where the applicant is the Attorney-General of India or the Advocate-General of a State, must be supported by affidavit or affirmation.

Section 446(3) permits the Supreme Court, where a dismissed transfer application was frivolous or vexatious, to award appropriate compensation to a person who opposed it.

What about pending CrPC proceedings?

The BNSS contains repeal-and-savings provisions. Accordingly, Section 406 CrPC may remain relevant to proceedings saved under the statutory transition framework, while Section 446 BNSS applies to matters governed by the new Sanhita.

The Supreme Court's present classification deliberately refers to both provisions, which reflects this transitional position.

Order XXXIX and criminal transfer petitions

Order XXXIX of the Supreme Court Rules, 2013 historically regulates applications for transfer of criminal proceedings under Section 406 CrPC. For current filing under Section 446 BNSS, practitioners should check the latest Supreme Court Rules, amendments, case classification and Registry filing requirements.

The Supreme Court Rules and latest amendments are available at Supreme Court of India - Supreme Court Rules.

Procedure after filing a transfer petition

The petition is filed with the facts, grounds, affidavit and required annexures.
Any application for interim stay may be filed where necessary.
The Registry scrutinises the petition for compliance with the Supreme Court Rules.
The matter is listed for preliminary hearing.
The Court may dismiss the petition at the threshold or issue notice where a prima facie case is made out.
After hearing the parties, the Court may allow or dismiss the transfer request and issue consequential directions.

Stay of proceedings during transfer petition

Filing a transfer petition does not automatically stay the proceeding sought to be transferred. Where interim protection is necessary, a specific stay application should be filed and the Court may pass an interim order in its discretion.

Quick comparison

Article 139A(1)	Common substantial questions of general importance; withdrawal of High Court cases to Supreme Court.
Article 139A(2)	Transfer of a case, appeal or other proceeding from one High Court to another High Court.
Section 25 CPC	Inter-State transfer of civil suits, appeals and proceedings between High Courts or Civil Courts.
Section 446 BNSS	Inter-State transfer of criminal cases and appeals between High Courts or criminal courts under different High Courts.
Section 406 CrPC	Historical corresponding criminal-transfer provision, still relevant where saved by transitional law.

Official references

India Code - Constitution of India, Article 139A

India Code - Code of Civil Procedure, 1908, Section 25

India Code - BNSS, 2023, Section 446

Supreme Court - Current case categories

This article is a general procedural guide. Transfer jurisdiction depends on the nature of the pending case, the court in which it is pending, the governing procedural law, transitional provisions and the latest Supreme Court Rules and Registry requirements.