The protection of witnesses and the supervision of bail are two indispensable aspects of India’s criminal justice system. Yet, a recent controversy arose when the Allahabad High Court disposed of several bail cancellation applications by directing complainants to instead seek remedies under the Witness Protection Scheme, 2018. This approach suggested that the existence of a state-sponsored protection mechanism for witnesses could act as a substitute for judicial cancellation of bail.
The Supreme Court, in Phireram v. State of Uttar Pradesh & Anr. (2025 INSC 1074), decisively addressed this issue. It clarified that the Witness Protection Scheme cannot and does not replace the power of courts to cancel bail when conditions are violated. This judgment has far-reaching implications for victims, witnesses, accused persons, and the functioning of criminal courts.
This article examines the jurisprudence, legislative background, and judicial reasoning that shaped this ruling, while exploring whether the Witness Protection Scheme can ever be considered an alternative to bail cancellation.
Case in Context
Facts and Procedural History
- In FIR No. 137 of 2022, the complainant alleged offences under Sections 302, 201, 364, 120-B, and 34 of the IPC.
- The accused was granted bail by the Allahabad High Court in April 2024, subject to stringent conditions, including non-tampering with evidence and non-intimidation of witnesses.
- Despite this, the accused allegedly threatened key witnesses, leading to further FIRs being registered.
- The complainant moved for bail cancellation under Section 439(2) CrPC.
The High Court, however, disposed of the application by suggesting that the complainant should instead approach the competent authority under the Witness Protection Scheme, 2018.
Supreme Court’s Intervention
The Supreme Court found this approach erroneous. It held that bail cancellation and witness protection serve different purposes and cannot be conflated. The matter was remanded to the High Court for fresh consideration on merits.
Bail and Its Conditional Nature
Bail represents a delicate balance between two competing interests:
- Liberty of the accused – the norm in criminal jurisprudence.
- Interest of justice and fair trial – requiring supervision and restrictions.
The Court in Gudikanti Narasimhulu v. Public Prosecutor, A.P. (1978) 1 SCC 240 emphasised that bail conditions are not ornamental but substantive obligations. When an accused violates such conditions, particularly by intimidating witnesses, the conditional liberty transforms into an abuse of judicial indulgence, warranting cancellation.
As reiterated in State v. Captain Jagjit Singh (AIR 1962 SC 253), the interests of society and the credibility of justice demand that bail be revoked in such cases.
Witness Protection Scheme, 2018 – A Background
Origins and Evolution
The Scheme was the product of decades of recommendations by the Law Commission and committees such as:
14th Report (1958): Identified harassment and intimidation of witnesses as a systemic weakness.
154th Report (1996): Stressed the absence of a law protecting witnesses.
Malimath Committee Report (2003): Flagged threats by accused persons on bail as a major cause of witnesses turning hostile.
198th Report (2006): Called for comprehensive witness identity protection.
It was only in Mahender Chawla v. Union of India (2019) 14 SCC 615 that the Supreme Court, invoking Article 142, gave the Scheme binding effect, recognising that a fair trial includes the right of witnesses to depose without fear.
Scope and Measures
The Scheme provides protection measures ranging from:
- Police escorts and video testimony;
- Safe houses and relocation;
- Identity change and anonymity.
Its scope extends to heinous offences (punishable with death, life imprisonment, or imprisonment of 7 years or more), and certain offences against women (Sections 354, 354A–D, 509 IPC).
Nature of the Scheme
The Court in Phireram described it as “curative in nature” – designed to neutralise threats once they have materialised, but not preventive in the same sense as bail cancellation.
Key Distinction: Bail Cancellation v. Witness Protection
The Supreme Court drew a sharp distinction between the two remedies:
Bail Cancellation
- Preventive and supervisory function of courts.
- Ensures accused do not misuse liberty to interfere with justice.
- Grounded in Sections 437(3) and 439(2) CrPC.
- Triggered when conditions of bail (such as non-intimidation) are violated.
- Jurisdiction lies exclusively with courts.
Witness Protection
- Remedial and curative measure.
- Provides physical and psychological shield to witnesses.
- Implemented by state authorities under executive scheme.
- Not dependent on bail conditions or court proceedings.
- Does not restrain the accused but protects the vulnerable witness.
The Court explained that treating witness protection as a substitute for bail cancellation would denude courts of their authority, render bail conditions meaningless, and undermine the trial process.
Judicial Observations in Phireram
- No Substitution Allowed: The Witness Protection Scheme “is not an alternative to cancellation of bail” but a parallel remedy.
- Violation Must Invite Consequence: Where an accused violates bail conditions by threatening witnesses, courts have a duty to cancel bail; relegating witnesses to protection alone is unjust.
- Cyclostyled Orders Deprecated: The Court criticised the Allahabad High Court for passing over forty identical orders in bail cancellation cases, treating witness protection as a substitute. Such mechanical disposal was declared improper.
- Prosecutorial Duty: The Supreme Court noted with dismay that prosecutors themselves suggested this erroneous course, failing to assist courts with correct law.
- Duality of Remedies: Bail cancellation ensures supervision of accused’s conduct; witness protection ensures the safety of testimony. Together, they safeguard the integrity of trials.
Key Highlights of the Decision
Justice J.B. Pardiwala and Justice Sandeep Mehta stated:
We are dismayed to note that the aforesaid practice of passing cyclostyled template orders has been in vogue past more than two years. The most disturbing feature of all these orders passed is that the Public Prosecutor instead of assisting the learned Judge in the right direction by pointing out the correct position of law, has instead himself urged that the witness or complainant be relegated to avail remedy under the Witness Protection Scheme rather than seeking cancellation of the bail of the accused person, who administered threats and caused intimidation to the witness, in violation of the conditions of his bail order. We deprecate this practice.
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.
Principles Governing Bail Cancellation
The Court reiterated established principles, including those from Dolat Ram v. State of Haryana (1995) 1 SCC 349, Imran v. Mohd. Bhava (2022) 13 SCC 70, and P v. State of M.P. (2022) 15 SCC 211. Bail once granted may be cancelled if:
- Accused misuses liberty by committing new offences;
- Interferes with investigation;
- Tampers with evidence;
- Threatens or influences witnesses;
- Attempts to abscond;
- Engages in activities hampering trial;
- Any supervening circumstances arise making continued liberty inimical to fair trial
Why Witness Protection Alone Is Inadequate
- Limited Scope: The Scheme applies only to certain offences. Many witnesses in other categories remain unprotected.
- Post-Threat Remedy: It provides protection after threats emerge, not before. By contrast, bail cancellation removes the source of threat itself.
- Burden on Witnesses: Expecting witnesses to seek bureaucratic remedies while facing threats is “grossly unjust,” as noted by the Court.
- No Preventive Role: The Scheme does not restrain accused persons from contacting witnesses; it only offers reactive shielding. Cancellation of bail directly curtails the liberty of those abusing it.
Broader Implications
- For Victims and Witnesses: The judgment restores faith that courts will not abdicate their duty of supervision. Witnesses are no longer forced to choose between protection and justice—they are entitled to both.
- For Accused Persons: It reaffirms that bail is conditional liberty, not absolute freedom. Misuse invites cancellation, regardless of the existence of external protection mechanisms.
- For Criminal Justice System: By drawing boundaries between judicial and executive functions, the decision preserves the integrity of trials, ensuring that intimidation does not corrode evidence.
- For High Courts and Prosecutors: The Supreme Court’s deprecation of cyclostyled orders serves as a stern reminder that each bail cancellation case must be judged on its own merits. Prosecutors, as officers of the court, must assist judges in upholding correct legal principles.
Conclusion
The Supreme Court’s ruling in Phireram v. State of Uttar Pradesh & Anr. is a landmark clarification:
- Witness Protection Scheme, 2018 is not and cannot be a substitute for bail cancellation.
- Bail cancellation remains a judicial safeguard ensuring that accused persons respect the boundaries of their conditional liberty.
- Witness protection complements but does not replace judicial remedies.
The judgment ensures that victims and witnesses are not left to navigate bureaucratic hurdles when their safety and the integrity of trials are at stake. It re-establishes the primacy of judicial oversight in maintaining the fairness of criminal proceedings.
As India’s criminal justice system continues to grapple with threats to witnesses and misuse of bail, the guiding principle remains clear: witness protection shields the vulnerable, while bail cancellation restrains the violator. Both are indispensable, but never interchangeable.
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