Constitution of Pakistan and other statute have conferred jurisdiction upon High court. Jurisdiction of High court can be classified into extra-ordinary jurisdiction, original and appellate jurisdiction, and supervisory jurisdiction. It is through supervisory jurisdiction that High Court can transfer some criminal case from one court to another court.
2. Relevant Provision
Following are the relevant provision of Cr.P.C regarding the topic transfer of criminal cases of High Court
i. Section 526 Cr.P.C
ii. Cross Reference
Section 527 & 528 Cr.P.C
3. Types of transfer of criminal case
A criminal case may be transfer by the following authorities:
i. High Court u/s 526
ii. Provincial Govt. u/s 527
iii. Session Judge u/s 528
Grounds for transfer of criminal case
Following are grounds upon which criminal cases can be transferred
i. Fair & impartial inquiry or trail
Criminal case can be transferred when it appears that a fair and impartial inquiry or trial cannot be held in any subordinate criminal court.
ii. Unseal difficulty
That some questions of law unusual difficulty is likely to arise.
iii. View of scene of occurrence
That a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same.
iv. Question of Law
Criminal case can be transferred when it appears that some question of law of unusual difficulty is likely to arise.
v. View of Place
Criminal case can be transferred when it appears that a view of place in or near which any offence has been committed is required either for satisfactory inquiry into such offence or for satisfactory trial of such offence.
vi. General convenience
That an order under this section will tend to the general convenience of the parties or witnesses.
vii. Ends of Justice
Criminal case can be transferred when it appears that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice.
vi. Order under provision of criminal procedure code
Criminal case can be transferred when it appears an order about such transfer is required by any provision of criminal procedure code.
5. Good grounds for a transfer are made out
If good grounds for a transfer are made out, the court ought not to refuse it merely because the case has reached an advanced stage or because the transfer may entail expense and trouble to all concerned.
The High Court, on receiving the application for transfer of case, may order the applicant to execute a bond for the costs of the opponent; and if the application is frivolous and vexatious, the costs of the opponent may be ordered to be paid by the applicant.
The application for transfer should be supported by an affidavit; and the public prosecutor is entitled to have notice of it at least twenty-four hours ahead.
To conclude, it can be stated that transfer of criminal cases cannot be claimed as a matter of routine or at wish of any of parties. Transfer of criminal cases can only be allowed on basis of sufficient grounds, which criminal procedure code has provided. Another settled principle is that criminal cases can be transferred through sou motu action of High Court or through application of state, accused, complainant or witnesses.