Witness Protection Scheme Is Not An Alternative to Bail Cancellation For Threatening Witnesses: Supreme Court

Witness Protection Scheme No Substitute for Bail Cancellation, Supreme Court Rules in Rebuke to Allahabad High Court

New Delhi – The Supreme Court of India has emphatically ruled that the Witness Protection Scheme, 2018, cannot be treated as an alternative remedy to cancelling the bail of an accused who violates bail conditions by threatening or intimidating witnesses. Setting aside a "curious" order by the Allahabad High Court, the apex court clarified that witness protection and bail cancellation are distinct legal mechanisms that serve different, complementary purposes in ensuring a fair trial.

The Court also expressed deep dismay over a widespread practice in the Allahabad High Court of disposing of bail cancellation applications by directing complainants to the Witness Protection Scheme, citing at least 40 such "cyclostyled template orders" passed in the last year alone.

Case Background

The appeal was filed by a complainant in a murder case (Sections 302, 201, 364, 120-B IPC) after the Allahabad High Court disposed of his application to cancel the bail of the accused. The accused had been granted bail on the explicit condition that he would not tamper with evidence or threaten prosecution witnesses.

The complainant alleged that the accused began threatening witnesses shortly after his release, leading to the registration of two new First Information Reports (FIRs) against him. When the complainant moved the High Court seeking cancellation of bail under Section 439(2) of the Code of Criminal Procedure (Cr.P.C.), the court, instead of deciding the application on its merits, directed the complainant to seek remedy under the Witness Protection Scheme, 2018.

Arguments Before the Supreme Court

Senior Counsel Mr. Rishi Malhotra, appearing for the appellant-complainant, argued that the High Court had abdicated its judicial duty. He contended that when there is a clear breach of bail conditions, the appropriate remedy is the cancellation of bail, not shifting the burden onto the witness to seek protection.

Counsel for the State of Uttar Pradesh, upon instructions from the Investigating Officer present in court, conceded that there was "some substance" to the allegations of threats made by the accused against the witnesses.

Court's Analysis: A "Curious" Order and Erroneous Practice

The Supreme Court found the High Court's approach perplexing and legally unsound. It held that the two legal provisions serve distinct functions:

• Bail Cancellation: A preventive and supervisory function of the court to ensure the trial is not polluted by the accused's misconduct. It is a judicial power to revoke liberty when it is abused.
• Witness Protection Scheme: A remedial and curative measure, and a positive obligation of the State, designed to neutralize the psychological impact of threats and empower witnesses to testify fearlessly.

The judgment emphasized that the need for a witness protection scheme arose precisely because bail cancellation provisions alone were insufficient to address the deep-rooted fear and vulnerability of witnesses.

In a pivotal excerpt, the Court observed: > "The existence of a Witness Protection Scheme can 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 caused intimidation to the witnesses. To substitute one for the other is 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 explained that the scheme and bail laws work in tandem. The law on bail restrains the accused through conditions and enforces them via cancellation, while the scheme provides a protective canopy to eradicate the "invisible yet potent influence of fear."

Rebuke of Allahabad High Court's "Cyclostyled" Orders

The Supreme Court took serious note of a "disturbing feature" prevailing in the Allahabad High Court. It presented a list of 40 recent cases where bail cancellation pleas were disposed of with orders that were "a verbatim copy of each other," all relegating the complainants to the Witness Protection Scheme. The Court deprecated this practice, stating: > "We are dismayed to note that the aforesaid practice of passing cyclostyled template orders has been in vogue past more than two years."

The Court also criticized the Public Prosecutors for urging this incorrect course of action instead of assisting the judges with the correct position of law.

Final Decision and Directions

The Supreme Court set aside the impugned order and remanded the matter back to the Allahabad High Court for a fresh hearing on its own merits. It directed the High Court to: 1. Decide the bail cancellation application after hearing all parties. 2. Call for a report from the Investigating Officer regarding the two new FIRs lodged against the accused. 3. Pass an appropriate order in accordance with the law within four weeks.

To ensure the correction of this erroneous legal practice, the Registry was directed to circulate a copy of the judgment to all High Courts and to send a copy forthwith to the Chief Justice of the Allahabad High Court.