Code:
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
STATE AMENDMENT
Assam
In Section 191 of the Code, the reference to Chief Judicial Magistrate Shall, in relation to an offence taken cognizance of by an Executive Magistrate, be construed as a reference to the District Magistrate.
[Vide Assam Act 3 of 1984, s. 3(3) and the Schedule.]
Manipur
In section 191 of the In Section 191 of the Code, the reference to “Chief Judicial Magistrate” Shall, in relation to an offence taken cognizance of by an Specified Executive Magistrate, be construed as a reference to the District Magistrate.
[Vide Manipur 3 of 1985, s. 4(2) and the Schedule]
Explanation:
This section empowers a High Court to transfer a criminal case pending before a subordinate court to another subordinate court within the same state, or from one state to another, if the accused believes that they cannot receive a fair trial in the original court due to:
- Local prejudice against the accused: This refers to situations where the accused fears that the local population or the court’s environment harbors prejudice against them, potentially affecting the fairness of the trial.
- Personal bias of the presiding officer: This refers to instances where the accused believes that the judge or magistrate presiding over the case is biased against them, potentially hindering the possibility of a fair hearing.
- The convenience of the witnesses and the accused: If the accused and their witnesses reside far from the original court, transferring the case to a more convenient location could facilitate their participation and reduce inconvenience.
- Other sufficient reasons: This clause allows the High Court to consider other relevant factors that might warrant a transfer, even if they are not explicitly mentioned in the previous clauses.
Illustration:
Imagine a situation where a prominent politician is facing charges in a small town where there is a strong public opinion against him. He believes that he cannot get a fair trial there due to local prejudice. He can file an application in the High Court under Section 191 seeking the transfer of the case to a different city or state. The High Court, after examining the application and considering relevant factors, can order the transfer of the case if it deems it necessary for ensuring a fair trial.
Common Questions and Answers:
Q: Who can file an application under Section 191?
A: Only the accused person can file an application under Section 191.
Q: What are the grounds for transferring a case under Section 191?
A: The grounds are outlined in the section itself, including local prejudice, personal bias, convenience of witnesses, and other sufficient reasons.
Q: What are the factors considered by the High Court while deciding on a transfer application?
A: The High Court considers the merits of the application, the nature of the charges, the potential for prejudice, the convenience of witnesses, and other relevant factors.
Q: Can the prosecution oppose a transfer application?
A: Yes, the prosecution can oppose the transfer application and present their arguments against it.
