Kerala High Court Highlights Importance of Notice in Case Transfer: Accused and Sureties Must Be Notified

The Kerala High Court recently delivered a landmark ruling on the transfer of cases between courts. In the case of Muhammed Abdulla Sha v. State of Kerala, a single bench of Justice Bechu Kurian Thomas held that when a court transfers a case to another court, the transferor court must issue notice to the accused and sureties without which bail bonds cannot be cancelled.

The Petitioners in this case were accused no. 2, 5, and 6 in a case pending before the Additional Sessions Court-I (Special Court), Pathanamthitta. They had been booked for offences sections 304 and 308 read with Section 34 of the Indian Penal Code. Initially, the said case was pending before the Sessions Court, Pathanamthitta from where it was made over to the Additional Sessions Court-I and then to the Additional Sessions Court-IV. 

The sessions judge suo motu advanced the case and transferred it to Additional Sessions Court-I, Pathanamthitta posting it on very the same day.

The Petitioners argued that their counsel was not aware of the transfer of the case. He was waiting before the Additional Sessions Court-IV for the case to be called and as it wasn’t called he checked the court proceedings and found out that the case was transferred to the Additional Sessions Court-I. The Additional Sessions Court-I forfeited the bail bond of the petitioners due to non-appearance of the counsel and non-bailable warrant was issued. Notice was also issued to the sureties.

The petitioners filed an application before the Additional Sessions Court-I for cancelling the forfeiture of bail bond and continuance of the sureties as per the bond that was already executed. However, the court below dismissed the application. The court below was of the view that the counsel for accused 1 and 3 appeared before the transferee court and hence the counsel for accused 2,5 and 6 cannot contend that he was not aware of the transfer.

Adv. V Sethunath appearing for the petitioners argued that not issuing notice of the transfer to the parties concerned is legally improper. Public Prosecutor Sreeja V contended that the counsel could not claim to be unaware of the transfer as the counsel for accused 1 and 3 were present in the transferred court.

The Court referred to Form No.37 of the Kerala Criminal Rules of Practice which states that the transferor court must inform the accused and the sureties when a case has been transferred. The court observed that when it comes to the accused, notice to the counsel would be sufficient. But notice must be issued to sureties before bail bonds are forfeited and warrants are issued after the transfer of a case.

The Court observed that in the said case no notice of transfer was issued to the accused, the sureties or the counsel. The Court accordingly set aside the order of the lower court forfeiting the bail bond and issuing non-bailable warrants against the petitioners. The Court also quashed the proceedings against the petitioners and the sureties terming it “an abuse of the process of the court.”

The finding of the Kerala High Court is an important one that will have implications for cases that are transferred between courts. 

The Court held that when a case is transferred, it is imperative that the transferor court issues notice or intimates the transfer to the accused and the sureties. In the absence of such a notice, the bail bonds cannot be cancelled. If after transfer the accused fails to turn up, proceedings to forfeit the bond of the sureties ought to be resorted to only if notice had been served on the surety.(alert-success)