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TRANSFER OF CASES


Sections 78 – 81 of the CPC makes provisions for transfer of cases from one court to another – these powers are exercised by the High Court or magistrate of 1st class jurisdiction.  Section 79 provides that a magistrate of 1st class may transfer a case of which he has taken cognizance to any magistrate holding a subordinate court empowered to try that case within the local limits of the first class subordinate courts jurisdiction and may direct or empower a magistrate holding a subordinate court of second class who has taken cognizance of a case and whether evidence been taken in that case or not, to transfer it for trial to  himself or to any other magistrate within the local limits of his jurisdiction who is competent to try the accused and the magistrate shall dispose of the case accordingly.

Section 80 makes provisions for the transfer of part heard cases, where from the evidence it appears to warrant a presumption that the case is one which should be tried by another magistrate, he shall stay the proceedings submit the case with a brief report to a 1st Class magistrate empowered in direct transfer.

Section 81 deals with transfer by HC  - that a fair an impartial trial cannot be had in any criminal court subordinate thereto; fairness and impartiality is at the heart of criminal trials and it is therefore provided that an accused is entitled to trial before an impartial tribunal; therefore any question of bias or its likelihood is taken seriously.

A judicial officer is therefore expected to disqualify themselves where they know of any conflict that might arise either by reason of their intimate knowledge of facts or relation to the parties.  Where a magistrates fails to disclose such interest, any party seized of such knowledge may apply for the disqualification of the judicial officer.  John Brown Shilenje v R CR Appeal 180 of 1980 the test of reasonable apprehension was stated by Trevelyan – “reasonable apprehension  in the applicants or any right thinking persons mind that a fair trial might not be heard before the magistrate mere allegations will not suffice the re must be reasonable grounds for the allegations”.

The HC may transfer a case where there is
(a)       some question of law of unusual difficulty is likely to arise; this does not amount an appeal but is a mechanism to enable the most competent court to determine a legal question at the earliest opportunity possible.  That a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or that an order under this section will tend to the general convenience of the parties or witnesses; or that such an order is expedient for the ends of  justice or is required by any provision of this code.

Section 200 of CPC
There are provisions for cases that are part-heard by magistrates who subsequently cease to have jurisdiction through whatever means a magistrate succeeding such a magistrate may
(a)              Deliver judgment that has been written and signed but no delivered by his predecessor;
(b)              Where judgment has not been written and signed by his predecessor, on the evidence recorded by that predecessor, or re=summon the witnesses and recommence trial

Subsection 2 makes provisions where judgment has been delivered, the succeeding magistrate is empowered to sentence or give any other or  subsection 3 makes provisions for the accused to demand that any witnesses be re-summoned where part of the evidence was recorded by another magistrate.

Subsection 4 enables the HC to set aside convictions and order a new trial where it arises from evidence that it was not wholly recorded and the convicted court and where in the opinion of the High Court that material prejudice has been occasioned to the accused thereby.

 
 
 

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