Criminal Procedure Code, 1973 – s.439(2) – Cancellation of bail – Witness Protection Scheme, 2018 – FIR registered, accused persons were arrested and thereafter were released on bail by the High Court, subject to certain terms and conditions – Case of the appellant-complainant that thereafter, respondent no.2-accused started administering threats to the witnesses – FIRs lodged by the witness to whom threats were administered – Appellant sought cancellation of bail of the accused persons on the ground that threats were being administered to the witnesses and thus, there was violation of the conditions imposed at the time of release on bail – High Court declined to cancel the bail and held that appellant has remedy under the Witness Protection Scheme, 2018 – Challenge to:
Held: 1.1 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 – The Witness Protection Scheme 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. [Paras 18, 19]
1.2 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 – The existence of a Witness Protection Scheme cannot 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. [Paras 18, 39]
1.3 Violation of conditions of bail is a ground for cancellation of bail as a matter of duty enjoined upon the court who whilst enlarging the infracting accused on bail, allowed such violation to ensue under its watch – Courts cannot abdicate their role on the pretext that since the State has a scheme for protecting witnesses, they shall not exercise their jurisdiction to cancel bail even though conditions have been violated. [Paras 42, 44]
1.4 From a bare perusal of the Scheme, it is evident that the considerations for when the recourse to the Scheme may be taken by any witness is not contingent upon violation of a condition imposed on an accused during grant of bail or even during its pendency – Witness Protection Scheme does not displace or dilute the established jurisprudence of bail; rather, it works alongside it, providing a protective canopy so that the existing provisions can operate in an environment where witnesses are free to testify – The law on bail restrains the accused through conditions, and prevents any further infractions of intimidation by cancellation of bail while the Witness Protection Scheme eradicate the invisible yet potent influence of fear, intimidation or threat, that are the consequences of the threats made by the accused persons to maintain the sanctity of trial. [Paras 47, 52]
1.5 The considerations that must weigh with the court for setting aside the bail order 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 – Impugned order set aside, matter remanded to the High Court. [Paras 59, 62]
Cancellation of Bail – Witness Protection Scheme, 2018 – Witness Protection Scheme vis-à-vis provisions on grant or cancellation of bail – Witness Protection Scheme, 2018 is curative in nature while bail cancellation is a preventive – 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 Witness Protection Scheme:
Held: The Witness Protection Scheme is a remedial and curative measure, designed to neutralise the effects of threats once they have materialised – Whereas, bail cancellation is a preventive and supervisory function of the criminal court, whose very 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 protection granted by the Scheme is limited – Effect of cancellation of bail, when the accused person so released, violated any of the conditions imposed therein, stated. [Para 38, 45, 52]
Judicial Deprecation – Witness Protection Scheme, 2018 – Not a substitute for cancellation of bail – Practice prevailing in the Allahabad High Court wherein catena of cyclostyled template orders are being passed proceeding on an incorrect assumption of the law that the Witness Protection Scheme is a substitute for cancellation of bail – Deprecated. [Paras 60, 61] Cancellation of Bail – Principles governing – Discussed. [Paras 57-59]
Witness Protection Scheme, 2018 – Legislative history; scope, object and purpose of – Discussed. [Paras 19-30, 46, 50-52]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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