Bharatiya Nagarik Suraksha Sanhita, 2023
Section 211
Transfer on application of accused
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 210, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
Why this exists
This provision exists to protect the principle that no one should be a judge in their own cause. When a Magistrate initiates a case purely on their own knowledge or suspicion (rather than through a formal complaint or police investigation), there's a risk that the same person acting as both the initiator and the trial judge could be, or appear to be, biased. The law addresses this by giving the accused a chance to have a neutral, uninvolved Magistrate hear the case instead, preserving public confidence in a fair trial.
How courts read it
Under the older, identically worded Section 191 of the Code of Criminal Procedure, 1973, courts held that informing the accused of this right is mandatory, not optional, and that failure to do so before evidence is recorded can vitiate the trial. Courts have treated this as a safeguard rooted in natural justice, ensuring the accused's objection is heard and acted upon by transferring the case to another Magistrate designated by the Chief Judicial Magistrate.
Common misconceptions
- Myth: This rule applies to every criminal case where a Magistrate takes cognizance.
Fact: It applies only to cases where the Magistrate takes cognizance under Section 210(1)(c), meaning based on their own knowledge or suspicion, not cases begun by a complaint or police report. - Myth: The accused's objection is just a suggestion the Magistrate can ignore.
Fact: Courts have treated informing the accused of this right, and honoring a valid objection, as a mandatory procedural safeguard, not a discretionary courtesy.