Supreme Court: The present appeal arose from the order passed by the Allahabad High Court (‘the High Court’) whereby the appellant’s application to cancel the bail of the accused person was dismissed on the ground that with the appellant’s remedy was under the Witness Protection Scheme, 2018 (‘Witness Protection Scheme’) and thus, declined to cancel the bail.
The Division Bench of J.B. Pardiwala and Sandeep Mehta, JJ., stated that the existence of a Witness Protection Scheme could by no stretch be a consideration to decline to cancel the bail, even when there is prima-facie material indicating that the accused administered threats or intimidated witnesses. The Court stated that to substitute one for the other was to denude the court of its authority and render the provisions of bail cancellation otiose and thereby make a mockery of the conditions imposed while granting bail. Thus, the Court set aside the impugned order passed by the High Court and remanded the matter back to the High Court with a direction to rehear the application for cancellation of bail on its own merits.
Background
In the present case, the appellant was the original first informant who filed the FIR against the accused persons for the offence punishable under Sections 302, 201, 364, 120-B read with 34 of the Penal Code, 1860. The accused persons were arrested and thereafter, were ordered to be released on bail by the High Court, subject to certain terms and conditions.
The appellant contended that after the release, one of the accused persons had started administering threats to the witnesses. Thus, the appellant filed an application before the High Court under Section 439(2) of CrPC seeking cancellation of bail on the ground that the accused had violated the conditions imposed at the time of his release on bail. The High Court stated that the remedy with the appellant as an being the original first informant was under the Witness Protection Scheme and declined to cancel the bail.
Analysis, Law, and Decision
The Court noted that the High Court, while ordering the release of the accused person, had itself observed that in the event of violation or breach of any of the conditions, the trial court would be at liberty to cancel the bail of the accused.
The Court stated that the present case was an outright case of breach of the conditions of the bail order, and when the appellant was able to prima facie demonstrate in what manner the accused person was abusing the liberty granted to him, then, in such circumstances, the provisions of the Witness Protection Scheme had hardly any role to play.
The said Scheme had nothing to do as such when the complainant seeks cancellation of bail on the ground of threats being administered to the witnesses. The Court clarified that there was no other alternative to the provisions of CrPC and the Bharatiya Nagarik Suraksha Sanhita, 2023, in so far as cancellation of bail was concerned.
1. Legislative history of Witness Protection Scheme
The Court stated that the concept that witnesses of a crime should be accorded protection was not novel, rather it is a by-product of years of deliberation, essential for the fair functioning of any criminal machinery. Criminal justice rests upon the testimony of witnesses. Unless witnesses can depose freely, the entire process of justice would be reduced to futility. Delay, harassment, and intimidation cause a collapse of faith in criminal justice.
The Court stated that several reports of the Law Commission and other committees, time and again reiterated the growing need for a comprehensive framework on witness protection and made recommendations for protecting witnesses from external threats and re-victimisation within the courtroom. 198th Law Commission Report, 2016 titled, “Witness Identity Protection and Witness Protection Programmes, recommended a comprehensive cohort of measures for eradicating or neutralizing the effects of threats, intimidation and harassment that have entered the minds of the witnesses.
The Court stated that it was against this backdrop, that the Ministry of Home Affairs, formulated the draft Witness Protection Scheme, 2018, which assumed significance after decision in Mahender Chawla v. Union of India, (2019) 14 SCC 615, wherein the Court exercised its powers under Article 142 of Constitution to declare the draft Witness Protection Scheme as operative and binding.
2. Witness Protection Scheme, 2018: Curative in nature
The Court stated that the Witness Protection Scheme, was not conceived as an alternative or substitute for the existing considerations or conditions for the grant/cancellation of bail, already enshrined in Sections 437 and 439 of the CrPC. The scheme on witness protection was a result of the imperative need to secure testimony, due to the psychological complexities of witness vulnerability, that the law on bail could not by itself address. If the witnesses could not depose freely, justice itself would be a casualty.
The Court stated that the true purpose of the Witness Protection Scheme is to eradicate the corrosive effect that intimidation and threats, have upon the witness’s ability to speak the truth fearlessly. It is to address the psychological impact on the witnesses’ minds and eliminate the fear, that might cloud their testimony during trial. The Court stated that the Witness Protection Scheme is a remedial and curative measure, designed to neutralise the effects of threats once they have materialised. Bail cancellation is a preventive and supervisory function of the criminal court, whose duty is to ensure that the trial proceeds unpolluted by intimidation. The former is a positive obligation of the State, whereas the latter is judicial in nature, flowing from the inherent power of the courts to ensure that justice is done under its watch.
The Court stated that the existence of a Witness Protection Scheme could by no stretch be a consideration to decline to cancel the bail, even when there is prima-facie material indicating that the accused administered threats or intimidated witnesses. To substitute one for the other was to denude the court of its authority and render the provisions of bail cancellation otiose and thereby make a mockery of the conditions imposed while granting bail.
The Court stated that before enlarging the accused on bail, conditions necessary to meet the ends of justice are imposed. Even after the release of the accused person, the court retains the duty of supervision to revoke bail upon breach of the conditions on which the accused was released. Violation of those conditions is a ground for cancellation of bail. The courts cannot abdicate its role on the pretext that since the State had a scheme for protecting witnesses, it shall not exercise our jurisdiction to cancel bail even though conditions have been violated.
3. Prevailing Practice
The Court observed that a catena of orders from the Allahabad High Court proceeding on an incorrect assumption of the law, that the Witness Protection Scheme was a substitute for cancellation of bail. According to the said High Court, it was an alternative remedy. The Court took note of forty recent orders passed in the last year and observed that the last orders were a verbatim copy of each other.
The Court stated that the most disturbing feature of all these orders passed was that the Public Prosecutor instead of assisting the Judge in the right direction by pointing out the correct position of law, had instead urged that the witness be relegated to avail remedy under the Witness Protection Scheme, rather than seeking cancellation of the bail of the accused person. The Court stated that it deprecates this practice.
Thus, the Court set aside the impugned order passed by the High Court and remanded the matter back to the High Court with a direction to rehear the application for cancellation of bail on its own merits, after calling for an appropriate report from the Investigating Officer as regards the two FIRs which have been registered by one of the witnesses in the said case. After giving an opportunity of hearing to all the parties concerned and looking into the report that the High Court might call for from the Investigation Officer, the High Court should proceed thereafter to pass an appropriate order in accordance with law.
[Phireram v. State of U.P., 2025 SCC OnLine SC 1915, decided on 2-9-2025]
Advocates who appeared in this case :
For the Appellant: Rishi Malhotra, Senior Advocate; Shivaansh Maini, Advocate, Ansuiya, Advocate, Prem Malhotra, AOR.
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