Supreme Court of India
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New Delhi: The Supreme Court has taken a strong exception to the practice in Allahabad High Court to relegate all those seeking cancellation of bail due to threats rendered by accused, to seek remedy under the witness protection scheme, on an incorrect assumption of law.
Holding that the existence of the scheme can by no stretch be a consideration to decline to cancel the bail, a bench of Justices J B Pardiwala and Sandeep Mehta said, "We are dismayed to note that the practice of passing cyclostyled template orders has been in vogue past more than two years".
Deprecating the practice, the court noted, according to the high court, witness protection scheme is an alternative remedy.
"We are at pains to note that we came across at least 40 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 bench said, citing those orders with dates.
Curiously, the court said, all of the orders are a verbatim copy of each other.
"The most disturbing feature of all these orders passed is that the public prosecutor instead of assisting the 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,'' the bench said.
On an appeal by Phireram, the court set aside the high court's order which, instead of dealing with his plea for cancellation of bail to the accused in a murder case on the grounds of threats, asked the witness to avail the 2018 scheme.
While directing the HC to rehear the application for cancellation of bail within four weeks, the bench said, "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."
The court pointed out the witness protection scheme is a remedial and curative measure, designed to neutralise the effects of threats once they have materialised.
However, 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, it said.
"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 bench said.
The court held, 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 emphasised, 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.
The court stressed the scheme has nothing to do, when the complainant seeks cancellation of bail on the ground of threats being administered to the witnesses.