Introduction

This commentary examines a significant order of the Madras High Court addressing transfers of criminal cases under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The case arose from a private complaint under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (NI Act), alleging dishonour of cheques issued to discharge election-related debts. The petitioner (complainant) sought transfer of the summary trial case (S.T.C. No. 796 of 2024) from the Court of the Judicial Magistrate No. I, Villupuram, to Puducherry or any other competent court outside Villupuram District, invoking Section 528 BNSS (the High Court’s transfer power).

The principal contention was that the respondent—an elected MLA and District Secretary of the ruling party in Villupuram—wielded political influence capable of imperilling a fair trial. Additional complaints concerned an alleged procedural irregularity regarding withdrawal of a discharge petition without notice, and pending complaints against the Magistrate and court staff.

The High Court dismissed the transfer petition, reaffirming foundational principles—long settled under the Code of Criminal Procedure, 1973 (CrPC)—now operating without disruption under BNSS: that transfers are exceptional and require a “reasonable apprehension” of bias grounded in concrete facts, not conjecture, status, or generalised allegations.

Summary of the Judgment

• Statutory basis: Section 528 BNSS (power of High Court to transfer criminal cases) invoked to move a pending NI Act prosecution from Villupuram to Puducherry/elsewhere.
• Grounds urged: Respondent’s political stature and alleged local influence; complaint of a discharge petition being allowed to be withdrawn without notice; administrative complaints lodged against the Magistrate and staff; and an asserted threat to life and liberty.
• Court’s core findings:
  • No order or act by the Magistrate disclosed bias or unfairness; complaints are under inquiry and not determinative.
  • Mere political position of a party does not, by itself, justify transfer.
  • Alleged “procedural irregularity” about withdrawal of a discharge application (even if assumed) is remediable before the same court and is not a transfer ground.
  • Transfers are extraordinary and must be grounded in a real, reasonable apprehension of miscarriage of justice—vague or subjective fears do not suffice.
  • Convenience factors weighed against transfer: the parties, witnesses, and transaction are local to Villupuram; moving the case would cause delay and inconvenience.
• Disposition: Transfer petition dismissed. The trial court directed to proceed strictly in law and to conclude the trial expeditiously, preferably within six months.

Analysis

A. Statutory Framework and Continuity Under BNSS

The petition was filed under Section 528 BNSS, which substantially carries forward the High Court’s power to transfer criminal cases and appeals historically exercised under Section 407 of the CrPC. The judgment is notable for illustrating how pre‑BNSS jurisprudence on transfers—especially the “reasonable apprehension” test—continues to apply unaltered. The Court thus underscores legal continuity: the renumbering and codal transition effected by BNSS do not dilute the high threshold for invoking transfer jurisdiction.

B. Precedents Cited and Their Influence

The Court anchored its decision in three leading Supreme Court authorities, mapping the field in a way that leaves little room for expansive or routine transfers.

1) Gurcharan Dass Chadha v. State of Rajasthan, AIR 1966 SC 1418

This classic decision supplies the bedrock test: a transfer may be ordered where a party reasonably apprehends that justice will not be done. The Supreme Court made clear that:

• The apprehension must be objectively reasonable; subjective fear is insufficient.
• Justice must not only be done but be seen to be done, but that maxim cannot be reduced to a formula that converts every allegation into a transfer right.

The High Court in the present case faithfully applied this ratio, asking whether the apprehension was not only entertained by the petitioner but also appeared reasonable to the Court. It found it did not.

2) Captain Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260

This decision restated and sharpened the Gurcharan Dass standard. The Supreme Court emphasised:

• Assurance of a fair trial is the first imperative of criminal justice and a component of Article 21.
• Public confidence in the fairness of proceedings matters; where it is seriously undermined, transfers can be justified.
• But apprehensions must be reasonable and not speculative; mere allegations do not suffice.

By citing this authority, the High Court reaffirmed that fairness concerns are paramount—but must be established by credible, case‑specific material. Political status alone is not such material.

3) Usmangani Adambhai Vahora v. State Of Gujarat, (2016) 3 SCC 370

Here, the Supreme Court cautioned that transfer “at the drop of a hat” is inconceivable; the power is exceptional, to be exercised to preserve the credibility of the trial when there exists a real apprehension of miscarriage of justice. This caution speaks directly to the risk of forum shopping and delay—concerns the High Court found palpable in the petitioner’s request to move a local NI Act case to an out‑of‑district forum absent concrete proof of bias.

C. The Court’s Legal Reasoning

1. No demonstrable judicial bias or unfairness. The Court noted the absence of any order or conduct by the Presiding Magistrate evincing bias. Pending administrative complaints against the Presiding Officer and staff, by themselves, cannot serve as proof of bias, especially when no decision on those complaints has been taken.
2. Political influence is not an automatic transfer ground. The respondent’s status as an MLA and local party leader was treated as legally irrelevant unless tied to specific acts or circumstances that would reasonably undermine a fair trial. Without such linkage, status remains a neutral fact.
3. Procedural grievance is remediable, not a transfer trigger. Even assuming, arguendo, that a discharge petition was permitted to be withdrawn without notice, the Court viewed it as a procedural issue that can be addressed in the trial court itself (by appropriate application) or through regular procedural remedies. Allowing transfers for such contested procedural disputes would open floodgates and impede case management.
4. Convenience factors and case nexus favor retention. With the transaction, parties, and witnesses local to Villupuram, transfer would entail avoidable delay and hardship, cutting against the objective of speedy disposal—especially in NI Act cases, which are meant to be summary and expeditious.
5. High threshold for transfer under Section 528 BNSS is intact. By explicitly invoking and applying the Supreme Court’s jurisprudence, the Court re‑affirmed that the BNSS has not altered the substantive standard: a reasonable, fact‑based apprehension is indispensable; vague suspicions and general assertions do not move the needle.

D. Treatment of Each Allegation

• Political Influence: Rejected as a standalone ground. Absent specific, verifiable instances showing that the Magistrate’s impartiality was compromised, political stature remains legally insufficient.
• Withdrawal of Discharge Petition Without Notice: The Court considered this a procedural matter correctable within the judicial process, not a credible basis for transfer.
• Administrative Complaint Against Magistrate and Staff: The Court rightly separated ongoing administrative inquiry from judicial determination. Unless such inquiry culminates in findings that bear on impartiality, it cannot be treated as proof of bias.
• Threats to Life and Liberty: While such allegations are serious, the record did not show how they translated into an unfair trial risk in the particular court. The appropriate recourse is police protection and specific applications to the trial court for security or related directions, not transfer by default.

E. Impact and Significance

This order is important on several fronts:

• BNSS Continuity: It confirms that the transition from CrPC to BNSS has not diluted the restrictive approach to transfers. Section 528 BNSS will be construed in line with the established CrPC jurisprudence on Section 407.
• Guarding Against Forum Shopping: The Court’s refusal to move a local NI Act case absent concrete grounds will deter tactical transfer petitions aimed at delay or inconvenience to the other side and witnesses.
• NI Act Case Management: With a direction to complete trial within six months, the order underscores judicial emphasis on expeditious disposal in cheque dishonour matters, syncing with legislative and judicial policy to enhance financial discipline and reduce pendency.
• Clarity on “Bias” Standard: The Court reinforces the objective test of “reasonable apprehension,” preserving public confidence while avoiding a slippery slope that could paralyse local courts in politically sensitive districts.

Complex Concepts Simplified

• BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023): India’s new procedural criminal code replacing the CrPC. Section 528 BNSS corresponds, in substance, to the CrPC’s High Court transfer power (earlier Section 407), maintaining the same high threshold for transfers.
• Section 528 BNSS (High Court’s Transfer Power): Allows the High Court to transfer criminal cases in exceptional situations to ensure fairness. The applicant must establish a reasonable, fact‑based apprehension of bias or likelihood of failure of justice; mere allegations or status‑based claims are insufficient.
• “Reasonable Apprehension” of Bias: Not the party’s subjective fear, but an objectively justifiable concern that would lead a reasonable observer to doubt a fair trial in the circumstances. The judiciary must be, and be seen to be, impartial—but transfers are not granted on speculative or generalized anxieties.
• Section 138 NI Act (Cheque Dishonour): Criminalizes dishonour of cheques for insufficiency of funds or because payment is stopped by the drawer, subject to statutory conditions (notice, opportunity to pay, etc.). The present case is an NI Act prosecution; transfer pleas cannot be used to stall such summary proceedings.
• “STC” (Summary Trial Case): A docket category indicating summary procedures to quicken disposal. NI Act cases are generally tried summarily to achieve speed and efficiency.
• Administrative vs. Judicial Issues: Complaints against court officers are handled administratively. Unless substantiated and culminating in findings bearing on impartiality, they do not, by themselves, justify judicial relief like transfer.
• Forum Shopping: The strategic attempt to move litigation to a forum perceived as more favorable or more inconvenient to the opponent. Courts are vigilant to prevent it, especially via unjustified transfer motions.

Practical Guidance and Litigation Strategy

When Will Transfer Likely Be Considered?

• Concrete instances showing judicial partiality (e.g., extraneous comments on merits, ex parte communications, orders indicating prejudgment).
• Local circumstances that truly imperil security or impartiality (e.g., sustained, evidenced intimidation in or around the court affecting witnesses or parties).
• Credible evidence that public confidence will be seriously undermined if the same court continues, backed by verifiable facts and not merely stature-based assertions.

What Should a Transfer Petition Include?

• A detailed affidavit setting out precise facts, dates, orders, and incidents; attach documentary proof (certified copies, recordings, protection orders, police reports).
• A clear causal link between the identified facts and the apprehension of injustice—demonstrating why the concern is reasonable to an objective observer.
• Consideration of convenience, costs, and delay; propose a realistic alternative forum within the High Court’s jurisdiction when appropriate.

Alternative Remedies Short of Transfer

• Seek certified copies and move appropriate applications before the trial court to correct procedural lapses (recall, rectification, or directions for notice).
• Apply for witness or party protection if threats are alleged; pursue police assistance and court‑ordered safeguards.
• If necessary, move superior courts in revision or supervisory jurisdiction against specific orders, instead of seeking wholesale transfer.

Noteworthy Nuances in This Order

• Political Office vs. Fair Trial: The Court draws a clear line: holding public office does not automatically cast a shadow on the trial court’s ability to be fair. Without corroborative facts, status is neutral.
• Procedural Irregularity Allegation: The grievance that a discharge petition was allowed to be withdrawn on an advance hearing application without notice was treated as a fixable procedural concern, not proof of bias. Importantly, withdrawal of a defense application rarely prejudices the complainant; if anything, it removes a defense layer—another reason the Court found no prejudice justifying transfer.
• Date Incongruity: The order notes a complaint allegedly filed on 10.02.2014 against the Magistrate and staff. This appears chronologically incongruent with the case timeline and is likely a typographical slip; however, the Court’s reasoning does not hinge on this date and treats the complaint as pending inquiry, which is the relevant point.
• Expedition Direction: By urging disposal within six months, the Court reinforced the policy of swift resolution of NI Act prosecutions, balancing the refusal to transfer with a positive direction to ensure timely justice.

Conclusion: Key Takeaways

• Threshold under BNSS Section 528 remains high: Transfer is an extraordinary remedy reserved for situations demonstrating a reasonable, objective apprehension of failure of justice. The BNSS has not altered this substantive standard.
• Status is not substance: Political or social standing of a litigant cannot, by itself, ground a transfer; there must be fact-specific material showing actual risk to a fair trial.
• Procedural disputes are to be cured procedurally: Alleged irregularities (such as notice issues) should be addressed by appropriate applications or supervisory remedies—not by moving the entire case out of the district.
• Convenience and expedition matter: Where parties, witnesses, and transactions are local, and absent concrete bias, transfer will be refused to prevent delay and inconvenience and to preserve the efficiency of summary proceedings.
• Judicial continuity across codes: The judgment exemplifies doctrinal continuity from CrPC to BNSS, particularly around the “justice must be seen to be done” principle as harmonized with the “reasonable apprehension” test.

In sum, the Madras High Court’s decision is a careful recommitment to first principles. It preserves the credibility of the transfer jurisdiction by insulating it from generalized fears, political optics, and tactical maneuvering, while ensuring that genuine cases of risk to fair trial—when properly substantiated—remain well within the protective reach of Section 528 BNSS.