As per Section 25 of the Code of Civil Procedure, the Supreme Court has the power to transfer any suit, appeal or other proceedings from a High Court or civil court in one state to a High court or other civil court in any other State. This power may be exercised by the Supreme Court if it is satisfied that an order under this Section is "expedient for the ends of Justice". Thus very wide powers are given to the Supreme Court to order a transfer if it feels that the ends of Justice so require.
The provision of transfer has been most often invoked in matrimonial matters, and usually at the instance of the wife. When the husband and wife are living separately and the husband files a petition for divorce or institutes other proceedings under the law relating to marriage and divorce at the place where he is residing, which is usually the the place where the parties last resided together, the wife, who has often returned to her parental home, moves for transfer on the ground that she cannot afford to travel or that she cannot leave her child behind or that she faces threats when she goes to defend the proceedings. The court invariably takes a sympathetic view towards the wife's peal for transfer, but this not always the case.
Many problems have arisen in the context of power of the Court to order transfer under Section 25 of CPC. Often the court has felt that the parties would be well advised to dissolve their marriage by mutual consent, and some times the parties themselves have to come to such an understanding. In such situation, the court has often permitted the parties to file a petition for divorce by mutual consent in the Supreme Court itself. However some benches have taken the view that this cannot be done and that such a petition can only be filed in the trial court.
In State of Jammu and Kashmir the Code of Civil Procedure does not apply, therefore the provisions of Section 25 of CPC also does not apply.
As per Section 406 of CrPC, the Supreme Court has power to transfer criminal cases and appeals pending in one High Court to another High Court or, from a criminal court subordinate to High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. The Supreme Court can act under the section only on the application of the Attorney General or of a party interested. Where an application under section 406 CrPC is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious order the applicant to pay by was of compensation to the respondent such sum not exceeding Rs. 1000.
In case of Maneka Gandhi v. Miss Rani Jethmalani (1979) 4 SCC 167, the Supreme Court pointed out as to when the Court can exercise the power of transfer. The court observed as follows:
"Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mine-grievances. Something more substantial, more compelling, more imperiling from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is cardinal principle although the circumstances may be myriad and vary from case to case".
In Abdul Madani V. State of Tamil Nadu (2000) 6 SCC 204, the Court disallowed the plea for transfer. The petitioner prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged criminal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of a case was possible and the accused persons need not have any cause of apprehension. The Court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the society.