Bharatiya Nagarik Suraksha Sanhita, 2023
Section 447 BNSS - Power of High Court to Transfer Cases and Appeals
Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives the High Court power to transfer criminal cases and appeals when a fair and impartial proceeding cannot be secured, an unusually difficult question of law is likely to arise, transfer is required by the BNSS, the convenience of parties or witnesses calls for it, or transfer is expedient for the ends of justice.
What Section 447 BNSS means
Section 447 is the High Court's principal transfer provision for criminal cases and appeals within its subordinate criminal courts. It enables the High Court to move a proceeding to another competent criminal court, commit a matter to a Court of Session, or in an appropriate case transfer the matter to itself.
The provision is not limited to an application by an accused. The High Court may act on a report from a lower court, on the application of an interested party, or on its own initiative. However, where transfer is sought from one criminal court to another criminal court within the same sessions division, the applicant must first approach the Sessions Judge and have that request rejected before moving the High Court.
Main grounds for transfer under Section 447
- A fair and impartial inquiry or trial cannot be had in the subordinate criminal court.
- A question of law of unusual difficulty is likely to arise.
- A transfer order is required by another provision of the BNSS.
- Transfer would serve the general convenience of the parties or witnesses.
- Transfer is expedient for the ends of justice.
Orders the High Court may pass
| Power | Effect |
|---|---|
| Transfer for inquiry or trial | The High Court may direct an offence to be inquired into or tried by another court that is otherwise competent, even where the ordinary territorial qualification under Sections 197 to 205 is not met. |
| Transfer between subordinate criminal courts | A particular case or appeal, or a class of cases or appeals, may be transferred to another criminal court of equal or superior jurisdiction. |
| Commitment to Court of Session | The High Court may order that a particular case be committed for trial to a Court of Session. |
| Transfer to the High Court itself | A particular case or appeal may be transferred to the High Court and tried or heard before it. |
Procedure for an application under Section 447
An application under Section 447(1) is made by motion. Except where the applicant is the Advocate-General of the State, it must be supported by an affidavit or affirmation.
If an accused makes the application, the High Court may direct execution of a bond or bail bond for payment of any compensation that may later be awarded if the application is found to be frivolous or vexatious.
An accused applicant must give written notice of the application to the Public Prosecutor together with a copy of the grounds. The High Court cannot decide the application on merits until at least twenty-four hours have elapsed between service of that notice and the hearing.
Stay of proceedings pending a transfer application
Where transfer of a case or appeal from a subordinate court is sought, the High Court may stay proceedings in that court if a stay is necessary in the interest of justice. The High Court may impose suitable terms. Such a stay does not affect the subordinate court's power of remand under Section 346 BNSS.
Frivolous or vexatious transfer applications
If an application under Section 447(1) is dismissed and the High Court considers it frivolous or vexatious, it may direct the applicant to pay compensation to a person who opposed the application. Section 447 itself does not prescribe a fixed monetary ceiling for such compensation.
Section 447 BNSS and the earlier CrPC provision
Section 447 BNSS corresponds to Section 407 of the Code of Criminal Procedure, 1973, which dealt with the High Court's power to transfer cases and appeals. The CrPC has been repealed by Section 531 BNSS, but the savings clause preserves the old Code for proceedings that were pending immediately before the BNSS came into force.
Section 447 BNSS - Bare Act text
447. Power of High Court to transfer cases and appeals.
(1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that an order under this section is required by any provision of this Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,
it may order-
(i) that any offence be inquired into or tried by any Court not qualified under sections 197 to 205 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond or bail bond for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interest of justice, order that, pending the disposal of the application the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section 346.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of the Government under section 218.
Legal note
This page is intended for general legal information and statutory reference. The applicable procedure may depend on the date and status of the proceeding, the relevant High Court Rules, and the facts of the case. For filing or litigation strategy, the current statute, rules and binding judicial decisions should be checked.