Witness Protection Scheme Not A Substitute For Bail Cancellation: Supreme Court Criticises Allahabad High Court For Passing Cyclostyled Orders

The Court was hearing an appeal against an order of the Allahabad High Court, which had declined to consider a bail cancellation application on merits and instead directed the complainant to seek recourse under the Witness Protection Scheme. The complainant had alleged that the accused, released on bail in a murder case, had threatened witnesses in violation of bail conditions.

A Bench of Justice J.B. Pardiwala and Justice Sandeep Mehta made it clear that the availability of a Witness Protection Scheme cannot, under any circumstances, be treated as a ground to refuse cancellation of bail. The Bench underscored that “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.”

Senior Advocate Rishi Malhotra appeared for the appellant. Advocate Vijendra Singh represented the State of Uttar Pradesh, while Advocate Nitin Saluja appeared for the accused.

Background

The case originated from an FIR registered in 2022, alleging offences under Sections 302, 201, 364, and 120B, read with Section 34 of the IPC. The accused was granted bail by the Allahabad High Court in April 2024, subject to strict conditions, including that he should not intimidate or influence witnesses.

Following his release, the complainant alleged repeated threats and intimidation, leading to fresh FIRs. The complainant thereafter moved the High Court under Section 439(2) of the CrPC for cancellation of bail.

The High Court, however, declined to adjudicate the application on its merits and relegated the complainant to the Witness Protection Scheme, 2018. This order was challenged before the Supreme Court.

Court’s Observations

On the Distinction Between Witness Protection and Bail as Conditional Liberty

The Supreme Court clarified the distinction between witness protection and bail cancellation. It explained that the Witness Protection Scheme is a remedial and curative mechanism intended to neutralise threats after they have materialised, whereas bail cancellation is a preventive and supervisory function inherent to criminal courts.

While explaining the difference, the Bench stated: “The Witness Protection Scheme is a remedial and curative measure, designed to neutralise the effects of threats once they have materialised. Bail cancellation, on the other hand, is a preventive and supervisory function of the criminal court, whose very duty it is to ensure that the trial proceeds unpolluted by intimidation.”

The Court warned that equating the two remedies would render meaningless the conditions imposed while granting bail. If violations of bail conditions were brushed aside on the pretext that witness protection was available, the Court observed, bail conditions would carry no consequence.

The Bench reiterated that bail represents conditional liberty. While liberty is the rule and detention the exception, liberty cannot be abused to obstruct justice. Bail conditions are imposed to safeguard the fairness of the trial and cannot be ignored without consequence.

The Court further emphasised that established jurisprudence requires courts, when granting bail, to consider factors such as the likelihood of abscondence, tampering with evidence, and intimidation of witnesses. Once such conditions are imposed, any violation directly undermines the fairness of the trial and must invite judicial intervention.

On the Allahabad High Court’s Approach

The Supreme Court expressed concern over the practice of treating the Witness Protection Scheme as a substitute for bail cancellation by the Allahabad High Court.

Noting that a series of recent orders had been passed under an incorrect understanding of the law, the Bench highlighted that “We have come across a catena of orders from the Allahabad High Court proceeding on an incorrect assumption of the law, more particularly that the Witness Protection Scheme is a substitute for cancellation of bail. According to the High Court it is an alternative remedy. We are at pains to note that we came across at least forty recent orders, that have been passed in the last one year alone, as per the records available from the official website of the Allahabad High Court.”

The Court also criticised the conduct of Public Prosecutors, who, instead of pointing out the correct legal position, themselves urged that complainants be relegated to the Witness Protection Scheme.

The Bench further highlighted that instead of guiding the Court on the correct legal position, Public Prosecutors themselves had been urging that witnesses or complainants resort to the Witness Protection Scheme, even in cases where there was clear material showing that the accused had threatened or intimidated witnesses in violation of bail conditions.

The Court observed that such an approach undermines the purpose of bail conditions and erodes the integrity of the trial process, concluding emphatically: “We deprecate this practice.”

The Court cautioned that treating witness protection as a substitute for bail cancellation denudes the authority of courts and renders the provisions relating to bail cancellation otiose. Such an approach, it was observed, risks emboldening accused persons to tamper with evidence or intimidate witnesses with impunity.

Conclusion

Setting aside the order of the Allahabad High Court, the Supreme Court remitted the matter for fresh consideration on merits. The High Court has been directed to obtain a report from the Investigating Officer and decide the bail cancellation application within four weeks.

The Court also directed the circulation of its judgment to all High Courts, clarifying that the Witness Protection Scheme cannot be treated as an alternative to bail cancellation when bail conditions are violated.

Cause Title: Phireram v. State of Uttar Pradesh & Anr. (Neutral Citation: 2025 INSC 1074)

Appearances
Appellant: Sr. Adv. Rishi Malhotra
State of Uttar Pradesh: Adv. Vijendra Singh
Accused: Adv. Nitin Saluja

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