Accused Can Directly Approach High Court under Section 447 BNSS

Source: Kerala High Court

Why in News? 

A Single Bench of the Kerala High Court, comprising Justice A. Badharudeen, in Sabu K.S. v. Central Bureau of Investigation and Anr. (2026), allowed a transfer petition filed by the accused under Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), directing transfer of C.C. No. 3/2014 pending before the Special CBI Court-I, Ernakulam, to the Special CBI Court-II, Ernakulam, where the predicate offence case under the Prevention of Corruption Act, 1988 (PC Act) was pending. 

• The Court held that an accused is entitled to invoke Section 447 of BNSS to seek transfer of a case involving scheduled offences to a PML Act court, and that Special Courts constituted under special statutes are not governed by the proviso to Section 447 BNSS, which ordinarily requires prior approach to the Sessions Judge before filing a transfer petition before the High Court.

What was the Background of Sabu K.S. v. Central Bureau of Investigation and Anr. (2026) Case? 

• The petitioner, Sabu K.S., was the accused in two separate cases — C.C. No. 3/2014 pending before the Special CBI Court-I, Ernakulam, involving offences under the Prevention of Money Laundering Act, 2002 (PML Act), and S.C. No. 329/2017 pending before the Special CBI Court-II, Ernakulam, involving offences under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (PC Act, 1988), which constituted the predicate offences. 
• The petitioner filed a transfer petition under Section 447 of BNSS before the Kerala High Court, praying that C.C. No. 3/2014 be transferred from Special CBI Court-I to Special CBI Court-II, so that both cases could be considered simultaneously by the same Judge. 
• The CBI opposed the transfer on two grounds — first, that Section 44(1)(c) of the PML Act exclusively empowers the authorised authority (and not the accused) to seek committal of a scheduled offence case to the PML Act court; and second, that under the proviso to Section 447(2) of BNSS, the petitioner was required to first approach the Sessions Judge and obtain a rejection before approaching the High Court. Both contentions were rejected by the Court.

What were the Court's Observations? 

• On the Right of the Accused to File a Transfer Petition: The Court held that Section 44(1)(c) of the PML Act is an enabling provision that empowers the authorised authority to seek committal of a case involving a scheduled offence to the PML Act court. However, this provision does not exclude the right of any other aggrieved person to invoke the transfer jurisdiction of the High Court under Section 447 of BNSS. The Court held that, for valid reasons, even a person other than the authority who filed a complaint under the PML Act can seek such transfer, provided the destination court is also notified under the PC Act and the PML Act. 
• On the Proviso to Section 447(2) of BNSS: The Court noted that the proviso to Section 447(2) of BNSS, which is pari materia to the proviso to Section 407 of the Code of Criminal Procedure, 1973, bars a direct application to the High Court for transfer of a case from one criminal court to another within the same sessions division, unless an application for such transfer has been first made to the Sessions Judge and rejected. However, the Court held that this proviso cannot apply to Special Courts constituted under special statutes such as the PML Act or the PC Act. Such courts exercise exclusive jurisdiction over specific statutory offences and are constituted by the Central or State Government, not within the ordinary sessions court hierarchy. Therefore, a party seeking transfer between such Special Courts can directly approach the High Court. 
• On Joint Trial of Scheduled Offence and PML Act Offences: The Court affirmed that joint trial of a case involving a scheduled offence and PML Act offences is an outright impossibility. A finding of guilt in the scheduled offence case is a prerequisite before trial for PML Act offences can proceed. The PML Act court's jurisdiction during investigation, inquiry, or trial is independent of orders passed in respect of the scheduled offence, and simultaneous trial by the same court does not amount to a joint trial. 
• On Allowing the Transfer: The Court noted that both CBI Court-I and CBI Court-II, Ernakulam, are Special Courts notified under both the PC Act and the PML Act. Accordingly, since both courts possess the requisite jurisdiction, permitting the same Judge to consider both cases simultaneously serves the interest of justice.

What is Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023? 

Section 447 BNSS — Power of High Court to Transfer Cases and Appeals: 

Grounds for Transfer (Sub-section 1): 

The High Court may order transfer when: 

• Fair and impartial trial is not possible in the subordinate court; or 
• A question of law of unusual difficulty is likely to arise; or 
• Transfer is required by any provision of BNSS, or is convenient for parties/witnesses, or expedient for ends of justice.

Orders the High Court May Pass: 

• Direct any offence to be tried by a court not qualified under Sections 197–205 but otherwise competent. 
• Transfer any case/appeal from a subordinate criminal court to another court of equal or superior jurisdiction. 
• Commit any case for trial to a Court of Session. 
• Transfer any case/appeal to be tried before itself.

How the High Court Can Act (Sub-section 2): 

• On report of the lower court; or 
• On application of an interested party; or 
• On its own initiative.

Proviso: No application lies directly to the High Court for transfer between two criminal courts in the same sessions division unless the Sessions Judge has first rejected such an application. 

Procedural Requirements: 

• Application must be made by motion, supported by affidavit or affirmation (except when filed by the Advocate-General). 
• When filed by the accused, the High Court may direct execution of a bond/bail bond for potential compensation. 
• The accused must give written notice to the Public Prosecutor along with grounds; no order on merits shall be passed unless 24 hours have elapsed after such notice.

Stay of Proceedings (Sub-section 6): 

• Pending disposal of the transfer application, the High Court may stay proceedings in the subordinate court in the interest of justice. 
• Such stay does not affect the subordinate court's power of remand under Section 346. 

Dismissal and Compensation (Sub-section 7): 

• If the transfer application is dismissed and found to be frivolous or vexatious, the High Court may order the applicant to pay compensation to the opposing party.

Procedure on Self-Transfer (Sub-section 8): 

• When the High Court transfers a case to try it before itself, it shall follow the same procedure that the original court would have followed.

Saving Clause (Sub-section 9): 

• Nothing in this section affects any order of the Government under Section 218 of BNSS.