Writs & Supreme Court

Transfer Petition Criminal Under Section 446 BNSS

A Transfer Petition (Criminal) is a petition filed before the Supreme Court of India seeking to withdraw a pending criminal trial, complaint, or session case from one court and transfer it to another court. The petition is filed under the Supreme Court's original criminal jurisdiction and is the primary mechanism to move a criminal case between courts in different States, or between courts within the same State, when a fair trial is imperilled.

This petition is filed under Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Order XXXIX of the Supreme Court Rules, 2013. For matters where the offence pre-dates 1 July 2024, the petition body may also note the corresponding provision under Section 406 of the Code of Criminal Procedure, 1973, for transitional clarity.

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Governing law
Bharatiya Nagarik Suraksha Sanhita 2023 s.446 (formerly CrPC s.406); Supreme Court Rules 2013 Order XXXIX
Sections
s. Section 446 BNSS 2023s. Section 406 CrPC 1973s. Order XXXIX SC Rules 2013
Filed before
Supreme Court of India (Criminal Original Jurisdiction)

When this is the right filing

  • When a pending criminal trial, complaint, or session case must be moved from a court in one State to a court in another State to secure a fair trial.
  • When a transfer is required between courts within the same State, where the Supreme Court's power is invoked due to the nature of the threat to a fair trial.
  • When there is a reasonable apprehension of bias, a surcharged local atmosphere, or a credible threat of witness influence that makes a fair trial impossible at the current court.
  • When the interest of justice and balance of convenience strongly favour a transfer, based on concrete material facts and not mere inconvenience to a party.
  • Do not use this petition to challenge the merits of the underlying criminal case or to argue the guilt or innocence of the accused.

What the court looks for

  • Concrete, specific material facts demonstrating why a fair trial is impossible at the transferor court, not bald assertions.
  • A clear pleading on the twin pillars of (i) reasonable apprehension of bias or impossibility of a fair trial, and (ii) the interest of justice and balance of convenience.
  • A demonstration that the grounds for transfer are anchored to the integrity of the judicial process and not based on mere inconvenience to the petitioner.
  • A clear identification of the parties, the case, the current forum, the stage of proceedings, and the competency of the proposed transferee court.
  • A non-filing declaration confirming that no other similar petition has been filed before any other court.

The structure the court expects

The components of the filed format, in the order they appear. LexPilot fills every one of them from your facts and papers.

  1. 1Index
  2. 2Proforma for first listing
  3. 3Synopsis and list of dates
  4. 4List of dates & events
  5. 5Facts
  6. 6Question of law
  7. 7Grounds
  8. 8Main prayer
  9. 9Prayer for stay of proceedings
  10. 10Certificate
  11. 11Affidavit
  12. 12Memo of parties (position of the parties)
How it opens
1. That the Petitioner [petitioner description] in [case type] No. [case no] titled [case title] (hereinafter the "Subject Case") pending before [from court full] (hereinafter the "Transferor Court"), arising out of [case origin], under [sections charged].

Bracketed items are filled from your case.

Frequently asked questions

What is the governing provision for a criminal transfer petition in the Supreme Court after July 2024?

The governing provision is Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Order XXXIX of the Supreme Court Rules, 2013. For matters where the FIR or offence pre-dates 1 July 2024, the petition body should also note the corresponding provision under Section 406 of the Code of Criminal Procedure, 1973, for transitional clarity, but the cause-title bracket cites Section 446 BNSS.

Can I file this petition to argue that the accused is innocent?

No. A transfer petition is not a challenge to the merits of the underlying case. The only question before the Supreme Court is whether a fair trial is possible at the current court. Arguments on guilt or innocence are not relevant and should not be pleaded in this petition.

Is the inconvenience of travelling to another State a sufficient ground for a transfer?

No. Mere inconvenience to a party is an insufficient ground for transfer. The petition must establish that the transfer is necessary for a fair trial, based on grounds such as a reasonable apprehension of bias, a surcharged local atmosphere, or a threat to the integrity of the proceedings.

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