The Real Apprehension in Transferring Cases II

My Lord, Independent of the provisions contained in the Codes of Civil and Criminal Procedure is there a source of power which the Supreme Court can invoke for directing transfer of a case from or to the State of Jammu and Kashmir?

Yes.

The fact that there is no such enabling provision for transfer from or to the State of Jammu and Kashmir does not detract from the power of a Superior Court to direct such transfer, if it is of the opinion that such a direction is essential to subserve the interest of justice. In other words, even if the provision empowering Courts to direct transfer from one Court to other were to stand deleted from the statute, the Superior Courts would still be competent to direct such transfer in appropriate cases so long as such Courts are satisfied that denial of such a transfer would result in violation of the ‘right to access to justice’ to a litigant in a given fact situation…  There is no prohibition against use of power under Article 142 to direct transfer of cases from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa… The provisions of Articles 32, 136 and 142 are wide enough to empower this Court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empowers this Court to transfer cases.”

Hon’ble CJI T.S. Thakur, Anita Kushwaha v. Pushap Sudan, [Transfer Petition (Civil) No. 1343 of 2008].

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