Section 448 BNSS: Power of Sessions Judge to Transfer Cases and Appeals
Section 448 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Sessions Judge to transfer a particular criminal case from one Criminal Court to another Criminal Court within the same sessions division when such transfer is expedient for the ends of justice.
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. Its provisions came into force on 1 July 2024, subject to the limited exception stated in the Central Government notification concerning the First Schedule entry relating to section 106(2) of the Bharatiya Nyaya Sanhita, 2023. Section 448 is in force.
Text of Section 448 BNSS
448. Power of Sessions Judge to transfer cases and appeals.
(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.
(3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 447 apply to an application before the Sessions Judge in the same manner as they apply to a transfer application before the High Court, except that the compensation contemplated by section 447(7), as applied to Section 448, cannot exceed Rs. 10,000.
Meaning and scope of Section 448
The provision gives the Sessions Judge a supervisory transfer power over criminal cases pending before Criminal Courts within the same sessions division. The controlling test is whether a transfer order is expedient for the ends of justice. The power is therefore judicial and must be exercised on relevant grounds connected with fair administration of criminal justice.
| Who may exercise the power? | The Sessions Judge. |
|---|---|
| What may be transferred? | A particular criminal case. |
| Geographical limit | The transfer must be from one Criminal Court to another Criminal Court within the Sessions Judge's own sessions division. |
| How can the power be invoked? | On a lower Court's report, on an application by an interested party, or by the Sessions Judge on his own initiative. |
| Governing standard | The transfer must be expedient for the ends of justice. |
Procedure for a transfer application
Because Section 448(3) incorporates specified parts of Section 447 BNSS, the following procedural requirements are relevant to an application before the Sessions Judge:
- The application is to be made by motion and, except where the statutory exception applies, supported by affidavit or affirmation.
- Where the accused makes the application, the Court may require a bond or bail bond regarding any compensation that may be awarded if the application is found frivolous or vexatious.
- An accused applicant must give written notice to the Public Prosecutor together with a copy of the grounds, and ordinarily at least 24 hours must elapse between notice and hearing on merits.
- The Sessions Judge may stay proceedings in the subordinate Court while the transfer application is pending if a stay is necessary in the interests of justice. Such stay does not affect the subordinate Court's remand power referred to in Section 447(6).
- If the application is dismissed as frivolous or vexatious, compensation may be ordered, subject to the Section 448 ceiling of Rs. 10,000.
- The application does not affect a Government order under the provision referred to in Section 447(9).
When may transfer be justified?
Section 448 does not give an exhaustive list of factual situations. The statutory expression "ends of justice" requires the Sessions Judge to consider whether transfer is genuinely necessary for fair and proper administration of the case. Depending on the facts, relevant considerations may include a reasonable and substantiated concern about fairness, practical difficulty affecting the conduct of proceedings, or another circumstance showing that transfer within the sessions division would advance justice.
Important: A transfer application should set out concrete facts and the legal basis for transfer. Mere dissatisfaction with an order, the normal inconvenience of litigation, or unsupported allegations are not by themselves a substitute for showing why transfer is necessary for the ends of justice.
Relationship with Section 447 BNSS
Section 447 BNSS deals with the High Court's wider power to transfer criminal cases and appeals. It also provides that an application to the High Court for transfer from one Criminal Court to another Criminal Court in the same sessions division is not maintainable unless the applicant first approached the Sessions Judge and that application was rejected. This makes the remedy before the Sessions Judge the first statutory forum for an intra-sessions-division transfer request.
Reasons must be recorded
Section 452 BNSS requires a Sessions Judge or Magistrate making an order under Section 448, 449, 450 or 451 to record reasons for the order. A Section 448 transfer order should therefore disclose the basis on which the statutory power has been exercised.
Corresponding provision under the Code of Criminal Procedure, 1973
Section 448 BNSS broadly corresponds to Section 408 of the Code of Criminal Procedure, 1973. The central structure of the Sessions Judge's transfer power remains similar, but the BNSS text applies the compensation provision with a higher ceiling of Rs. 10,000 for a frivolous or vexatious transfer application.
Related BNSS provisions
- Section 446 - Power of Supreme Court to transfer cases and appeals
- Section 447 - Power of High Court to transfer cases and appeals
- Section 449 - Withdrawal of cases and appeals by Sessions Judges
- Section 450 - Withdrawal of cases by Judicial Magistrates
- Section 452 - Reasons to be recorded
Official sources
For the authoritative text and commencement information, refer to the India Code page for the Bharatiya Nagarik Suraksha Sanhita, 2023, the Ministry of Home Affairs - New Criminal Laws page, and the Gazette commencement notification dated 23 February 2024.
Note: This page is a general legal information resource. The proper forum, grounds, supporting affidavit, notice requirements and strategy in a transfer application depend on the facts and procedural stage of the particular criminal case.