Appeal against the cancellation of bail on the ground of threatening the witnesses
2. This appeal arises from the order passed by the High Court of Judicature at Allahabad dated 11.04.2025 in Criminal Miscellaneous Bail Cancellation Application No.93 of 2025 (for short, the “Impugned Order”), by which the application filed by the appellant herein-the original complainant seeking to get the bail of the accused persons cancelled on the ground that they are administering threats to the witnesses came to be finally disposed of with some directions.
Facts
4. It appears from the materials on record that the appellant herein-the original first informant, lodged the FIR bearing No.137 of 2022 with the Surajpur Police Station District Gautam Budh Nagar, U.P. for the offence punishable under Sections 302, 201, 364, 120-B read with 34 of the Indian Penal Code, 1860 (for short, “the I.P.C.”).
5. The accused persons were arrested and thereafter were ordered to be released on bail by the High Court, subject to certain terms and conditions.
7. It is the case of the appellant herein that thereafter, the respondent no.2 started administering threats to the witnesses.
8. We are also informed that two First Information Reports bearing nos. 262 of 2024 and 740 of 2024, respectively came to be lodged at the Surajpur Police Station, District Gautum Budh Nagar by the witness namely Chahat Ram to whom threats were being administered by the accused i.e. the respondent no. 2 herein.
9. In such circumstances, referred to above, the appellant went before the High Court with an application under Section 439 (2) of the Criminal Procedure Code, 1973 (for short the “Cr.P.C.”) seeking cancellation of bail on the ground that the accused had violated the conditions imposed at the time of his release on bail.
High court’s order
11. The High Court says that the remedy with the appellant as an aggrieved person being the original first informant is under the Witness Protection Scheme, 2018. In other words, what we have been able to understand from the bare reading of the impugned order is that the High Court wants the appellant to avail the provisions of the Witness Protection Scheme, 2018 (for short, the “Witness Protection Scheme”). Having said so, the High Court declined to cancel the bail.
Witness Protection Scheme, 2018 has no role play in cancellation of bail on the ground of threating the witnesses
18. When it is an outright case of breach of the conditions of the bail order and when the original first informant is able to prima facie demonstrate in what manner the accused person is abusing the liberty granted to him, then, in such circumstances, the provisions of the Witness Protection Scheme, 2018 have hardly any role to play. This Scheme has nothing to do as such when the complainant seeks cancellation of bail on the ground of threats being administered to the witnesses.
Salutary object of witness protection scheme, 2018
19. We take this opportunity to explain the true scope and purport of the Witness Protection Scheme more particularly to make it clear that it is not an alternative to the provisions of the erstwhile CrPC and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 in so far as cancellation of bail is concerned.
After explaining the history, the Hon’ble Supreme court held as follows
The Witness Protection Scheme, 2018 is Curative in Nature
31. The reason for us to exhaustively discuss the legislative history, and the longstanding push by the various committees over a significant period of years for a witness protection scheme is to lay emphasis that, the promulgation of the Witness Protection Scheme, was not conceived as an alternative or substitute for the existing considerations or conditions for the grant or cancellation of bail, already enshrined in Section(s) 437 and 439 of the Cr.P.C., respectively.
32. The principle that individual liberty of accused and undertrial can be curtailed to ensure that his conduct does not interfere with the course of criminal justice existed even before the first report of the Law Commission in 1958, that emphatically urged the pressing need for formulation of a witness protection scheme. Rather, as already discussed in the aforesaid, this push for a witness protection scheme gained momentum due to the alarming increase in the instances of witnesses turning hostile on account of threats, intimidation, and harassment, despite the sweeping provisions on cancellation of bail, if an accused person attempts to contact any of the witness.
33. In this regard, few observations of some of the committees is instructive. The 4th Report of the National Police Commission, as far back as 1980, had noted that the “existing provisions regarding cancellation of bail are wholly insufficient to reassure witnesses who face social and economic pressures beyond the courtroom.” On similar lines, the Malimath Committee observed that despite bail cancellations and penal provisions, “witnesses turn hostile because the system does not provide them the protective shield necessary to resist intimidation.” The Law Commission in its 154th Report remarked that “the menace of intimidation has assumed dimensions far beyond the reach of provisions relating to bail and cancellation”.
34. The aforesaid observations underscore that a dedicated 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 are not able to depose freely, justice itself will be a casualty.
Purpose of witness protection scheme
36. The true purpose of the Witness Protection Scheme is to eradicate the corrosive effect that intimidation and threats, whether overt or covert, have upon the witness’s ability to speak the truth fearlessly. It is to address the insidious psychological impact on the minds of witnesses and eliminate the climate of fear, that may cloud the testimony of the witnesses during trial.
Distinction bail and cancellation
37. There is a fine but pertinent distinction between the grant of bail and its cancellation on the ground of violation of the conditions of bail order and the affording of protection to a witness under the Scheme.
What is bail and how to understand bail?
40. Bail is not to be understood merely as a mechanical order releasing a person from custody; it is, in substance, a judicial recognition that liberty is the norm and detention an exception, subject however to the overriding imperative that liberty should not be abused to thwart the course of justice. This Court in Gudikanti Narasimhulu v. Public Prosecutor, A.P. reported in (1978) 1 SCC 240 and a catena of other decisions has emphasised that the discretion of granting bail is guided by considerations of likelihood of abscondence, tampering of evidence, and intimidation of witnesses.
41. When bail is granted, it is not an untrammelled licence to act as one pleases. The conditions imposed under Section(s) 437 sub-section (3) or 439 sub-section (2) of the Cr.P.C. are not mere ad-libs, they constitute substantive obligations upon the accused as-well as the courts granting the bail. The grant of bail is not a mere release but a conditional liberty. Before enlarging the accused on bail, the court is required to impose such conditions as necessary to meet the ends of justice and ensure a fair trial. 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.
43. As held in State v. Captain Jagjit Singh reported in AIR 1962 SC 253 the considerations relevant for bail are not only with reference to the accused but also with reference to the larger interests of the public and the State.
Witness Protection Scheme when to be implemented?
48. In Hari v. State of U.P. reported in (2021) 17 SCC 111, this Court lamented that had the Witness Protection Scheme been implemented when the witnesses were deposing evidence in the said case, they would not have turned hostile. What needs to be noted here is that the scheme is merely for the protection of the witness, and it casts a positive obligation on the State machinery to ensure that a fair trial takes place. But to outrightly treat it as a ground to deny cancellation of bail is entirely erroneous.
Principles governing Cancellation of Bail
54. The law on cancellation of bail is well settled through a plethora of decisions of this Court.
55. In P v. State of M.P. reported in (2022) 15 SCC 211 this Court held that the grant of bail is always conditional and may be subject to cancellation, if after the grant of the same there is any supervening circumstances that impedes fair trial.
“paras. 23 and 24”
56. This Court then summed up the principles or circumstance governing the cancellation of bail as under: –
“25. Some of the circumstances where bail granted to the accused under Section 439(1)CrPC can be cancelled are enumerated below:
(a) If he misuses his liberty by indulging in similar/other criminal activity;
(b) If he interferes with the course of investigation;
(c) If he attempts to tamper with the evidence;
(d) If he attempts to influence/threaten the witnesses;
(e) If he evades or attempts to evade court proceedings;
(f) If he indulges in activities which would hamper smooth investigation;
(g) If he is likely to flee from the country;
(h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency;
(i) If he attempts to place himself beyond the reach of his surety.
(j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial.
We may clarify that the aforesaid list is only illustrative in nature and not exhaustive.” (Emphasis supplied)
57. The governing principle is that if the accused tampers with evidence, threatens witnesses, or attempts to subvert the trial, the indulgence of bail is to be withdrawn. It is a recognition that liberty is conditional, not absolute, and subject always to the larger interest of ensuring a fair trial. Considerations for cancellation of bail must always be on the basis of the well settled principles as discussed aforesaid. There cannot be any extraneous considerations involved that are unknown to the law of bails.
58. At the same time, emphasis has to be laid that cancellation of bail occupies a distinct space in the criminal justice machinery. Cancellation intervenes at the stage of violation, to prevent recurrence. In State through Delhi Administration v. Sanjay Gandhi reported in (1978) 2 SCC 411, this Court underscored that tampering with witnesses constitutes a cogent ground for cancellation, for the “opportunity of being on bail cannot be permitted to be abused for the purpose of thwarting the course of justice.” Similarly, in Raghubir Singh v. State of Bihar reported in (1986) 4 SCC 481, it was reiterated that intimidation of witnesses is sufficient to revoke the liberty granted. It must be guided by the lodestar of preventing interference with witnesses that “strikes at the root of the rule of law.”
59. Thus, the considerations that must weigh with the court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that might have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner etc.
62. In such circumstances, referred to above, we set aside the impugned order passed by the High Court and remand the matter 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 Chahat Ram i.e. one of the witnesses in the said case.
63. After giving an opportunity of hearing to all the Parties concerned and looking into the report that the High Court may call for from the I.O., the High Court shall proceed thereafter to pass an appropriate order in accordance with law.
Party
Phireram (Appellant) versus State of Uttar Pradesh & Anr. (Respondent) – Criminal Appeal No. 3830 of 2025 arising out of Special Leave Petition (Crl.) No. 9082 of 2025 – September 2, 2025 His Lordship Mr. Justice J.B. Pardiwala and His Lordship Mr. Justice Sandeep Mehta.
