S. 447 BNSS| High Court Can Be Directly Approached To Transfer Case From One Special Court To Another: Kerala High Court

The Kerala High Court, in a recent decision, held that a person seeking to transfer a case from one Special Court to another Special Court can directly approach the High Court without first approaching the Sessions Court.Justice A. Badharudeen held:“it is not safe to say that, when a person wants to transfer a case pending before the Special Court under the PC [Prevention of Corruption ]Act to the Special Court under the PML [Prevention of Money Laundering] Act, before approaching the High Court under Section 447 of BNSS the said person shall approach the Sessions Court first and get a rejection order there from, since Special Courts created by special statute exercising exclusive jurisdiction in relation to the offences under the special statute could not be roped into within the ambit of proviso to Section 447 of BNSS. In such view of the matter, a party who wants to transfer a case from one Special Court to another Special Court can directly approach the High Court without approaching a Sessions Court, and such a course of action is legally permissible in terms of Section 447 of BNSS… there is no bar for the High Court to consider the transfer in the interest of justice, provided that, the court where from the case pertaining to the scheduled offence is sought to be transferred also should be a court duly notified to try offences under the PC Act.”The Court was considering a plea by an accused to transfer his case pending before the Special CBI Court-I, Ernakulam to Special CBI Court-II, Ernakulam. In one of the courts, the case where he is accused of PC Act offences is pending whereas in the other court, the case where he is accused of PML Act offences is pending.The petitioner pointed out that allegations in the final reports in both these cases are almost same and interconnected, and the witnesses to be examined and documents to be marked are same. He sought for trial of both these cases by the same court to protect his interest as an accused.The CBI's counsel opposed the plea and pointed out that as per Section 44(1) of the PML Act, only the authorized authority can apply before the Special Court to take cognizance of the scheduled offence if the scheduled offence was taken cognizance by any other court. He thus, contended that the petitioner/accused has no right to seek a transfer.The Special Public Prosecutor for CBI also urged that Section 447 BNSS mandates a person to approach the Sessions Court first before approaching the High Court in order to transfer a case from one criminal court to another criminal court in the same sessions division.The Enforcement Directorate's Standing Counsel took the stand that there is no absolute bar under the BNSS for an accused to transfer a case based on valid grounds.The Court proceeded to examine Sections 44 and 65 PML Act and Section 447 BNSS after hearing the parties. Section 44 PML Act lays down the offences triable by Special Court whereas Section 65 deals with the applicability of the Code of Criminal Procedure. Section 447 BNSS is with regard to the power of the High Court to transfer cases.It then noted that the position is that CrPC/BNSS would apply in PMLA cases insofar as they are not inconsistent with PML Act provisions. Further, it was noted that Section 44 does not exclude the right of an aggrieved person, other than the authorized authority, to file a transfer petition by invoking the provisions of BNSS.“this Court is of the view that, for valid reasons, the person other than the authority who filed a complaint under the PML Act also can seek transfer of a case involving scheduled offences, to the PML Act court, when the court where the complaint alleging commission of PML Act offence is pending also is notified under the PC Act as well as under the PML Act. Therefore, the contention raised by the learned Special Public Prosecutor for the CBI that, the petitioner, who is the accused in both cases, has no right to file a transfer petition by invoking the provisions of BNSS, could not be accepted,” the Court added.The Court next went to examine whether there is a need to approach the Sessions Court before coming before the High Court. Though the Court agreed that Sessions Court is to be approached first when transferring a case from one criminal court to another in the same Sessions division, it was of the view that Special Courts are not having the same status as criminal courts.It thus articulated its view:“In this context, it is necessary to consider the status of a Special Court created by a Statute. As far as the Special Court under the PML Act is concerned, the same is the creation of Section 43 of the PML Act and same is at the helm of the Central Government in consultation with the Chief Justice of the High Court. Similarly, the Special Court constituted under Section 4 of the PC Act also is the creation of the statute and the power to appoint a Special Judge under the PC Act is vested in the State Government or the Central Government for a...

S. 447 BNSS| High Court Can Be Directly Approached To Transfer Case From One Special Court To Another: Kerala High Court

K. Salma Jennath

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S. 447 BNSS| High Court Can Be Directly Approached To Transfer Case From One Special Court To Another: Kerala High Court

K. Salma Jennath

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