Section 446 BNSS: Power of Supreme Court to transfer cases and appeals (Formerly Section 406 CrPC)

Section 446 of Bharatiya Nagarik Suraksha Sanhita, 2023: Power of Supreme Court to transfer cases and appeals

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme 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 appropriate in the circumstances of the case.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 446

Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 406 of the CrPC, 1973) empowers the Supreme Court to transfer cases and appeals from one High Court to another High Court, or from a criminal court subordinate to one High Court to a criminal court subordinate to another High Court, whenever expedient for the ends of justice.

Supreme Court's Plenary Transfer Power: Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct transfer of any particular case or appeal.
Interstate Transfer Competence: Covers transfer from one High Court to another, or from a subordinate court in one State to a subordinate court in another State.
Applicant Standing: The Supreme Court may act on application of the Attorney-General of India or of any party interested.
Costs for Frivolous Transfer: The Supreme Court may order compensatory costs up to fifty thousand rupees if the transfer petition is dismissive or vexatious.

Key Landmark Precedents:

G.X. Francis v. Banke Bihari Singh, AIR 1958 SC 309: The Constitution Bench established that transfer under Section 406 CrPC (Section 446 BNSS) is warranted when there is a reasonable apprehension that justice will not be done, such as widespread public prejudice or hostility paralyzing a fair trial.
Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167: The Supreme Court held that assurance of a fair trial is the first imperative of the dispensation of justice; communal tension, political victimization, or physical threats to the accused or witnesses justify interstate transfer.
Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204: Affirmed that apprehension of not getting a fair trial must be reasonable and substantiated by credible materials, not fanciful or hyper-sensitive.

Courtroom Practice & Strategic Litigation Guidance:

When seeking an interstate transfer before the Supreme Court under Section 446, annex certified copies of police complaint receipts, transcripts of public threats, and affidavits demonstrating that local atmosphere completely compromises safety and fair trial.