5 September 2025 Legal Updates

'WITNESS PROTECTION SCHEME NOT SUBSTITUTE FOR BAIL CANCELLATION': SUPREME COURT DEPRECATES ALLAHABAD HIGH COURT'S 'CYCLOSTYLED' ORDERS

(a) Case Title:

• Phireram v. State of Uttar Pradesh & Anr.

(b) Court:

• Supreme Court of India

(c) Date of Decision:

• September 2, 2025

(d) Bench:

• Justice J.B. Pardiwala and Justice Sandeep Mehta

Key Facts

• Phireram (appellant) filed an FIR against accused persons under Sections 302, 201, 364, 120-B read with 34 IPC. Accused persons were granted bail by Allahabad High Court with specific conditions including not threatening witnesses
• Appellant alleged that the accused violated bail conditions by threatening witnesses. Two additional FIRs were filed by witness Chahat Ram reporting threats from the accused. Appellant sought cancellation of bail under Section 439(2) CrPC
• Allahabad High Court disposed of the bail cancellation application by directing the complainant to approach authorities under Witness Protection Scheme, 2018

Legal Issue

Whether the existence of Witness Protection Scheme, 2018 can be used as grounds to refuse cancellation of bail when accused persons violate bail conditions by threatening witnesses?

Supreme Court's Decision

The Supreme Court set aside the High Court's order and remanded the matter for fresh consideration.

Key Legal Principles Established

1. Witness Protection Scheme is Not an Alternative to Bail Cancellation

• The Witness Protection Scheme, 2018 is curative in nature - designed to neutralize effects of threats after they materialize. Bail cancellation is preventive and supervisory - ensures trial proceeds without intimidation. The Scheme cannot substitute the court's judicial power to cancel bail for condition violations

2. Distinct Functions of Both Mechanisms

• Witness Protection Scheme: State's positive obligation to protect witnesses
• Bail Cancellation: Court's inherent judicial power to ensure fair trial
• Both work together, not as alternatives to each other

3. Conditions of Bail are Substantive Obligations

• Bail conditions under Sections 437(3) and 439(2) CrPC are not mere formalities. Violation of bail conditions mandates consideration for cancellation. Courts cannot abdicate their supervisory role by referring to alternative schemes.

4. Established Grounds for Bail Cancellation

• The Court reiterated well-settled grounds for cancellation:- Interference with investigation, Tampering with evidence, Threatening/intimidating witnesses, Absconding or evading proceedings or Engaging in criminal activities while on bail.

Important Observations

Legislative History of Witness Protection: The Court traced the evolution from Law Commission reports (1958, 1996, 2006) through Malimath Committee (2003) to the Mahender Chawla case (2019) that operationalized the Witness Protection Scheme.

Criticism of Allahabad High Court Practice: The Court identified 40 similar orders from Allahabad High Court in the past year, all following the same erroneous template of refusing bail cancellation and directing complainants to the Witness Protection Scheme. The Court deprecated this practice.

Procedural Direction: Matter remanded to Allahabad High Court. High Court directed to re-hear bail cancellation application on merits, call for report from Investigating Officer regarding the two FIRs filed by witness, pass appropriate order within 4 weeks and provide hearing opportunity to all parties.

WHISTLEBLOWING ACTIVITIES DON'T MAKE EMPLOYEE 'IMMUNE' FROM TRANSFER: DELHI HIGH COURT

(a) Case Title:

• Sh. Rahul Solanki v. Central Reserve Police Force (CRPF) & Ors.

(b) Court:

• High Court of Delhi at New Delhi

(c) Date of Decision:

• September 2, 2025

(d) Bench:

• Justice C. Hari Shankar and Justice Om Prakash Shukla

Key Facts

• Petitioner was a CRPF personnel transferred from Group Centre, Noida to 87th Battalion, Manipur. His transfer order was dated July 17, 2025. Petitioner posted at Noida on July 9, 2022 (completed over 3 years).
• Petitioner claimed to be an "internal whistleblower". No inherent objection to Manipur posting, but challenged transfer as retaliatory and malafide.

Legal Issue

Whether a transfer order can be challenged on grounds of retaliation against whistleblowing activities without establishing prima facie link between whistleblowing and the transfer?

Delhi High Court's Decision

The High Court dismissed the writ petition in limine (at the threshold without issuing notice).

Key Legal Principles Established

1. Burden of Proof for Malafide Transfer

• Employee challenging transfer must prove malafides clearly. Mere allegations of whistleblowing activities insufficient. Prima facie connection between whistleblowing and transfer must be established. No scintilla of material provided to show retaliation.

2. Transfer as Administrative Prerogative

• Following Somesh Tiwari v. Union of India the Court observed: Transfer is an administrative order and incident of service. Courts should not interfere except in cases of proven malafides. There exist two types of malice: malice in fact and malice in law. Lastly, administrative exigencies justify transfer orders.

3. Limited Scope of Judicial Review

• The following grounds exist for challenging transfer orders: Clear violation of statutory provisions, Malafides on part of authority, Infraction of professed norms/principles and Detriment to public interest.
• No interference warranted when: Career prospects remain unaffected, No detriment caused to government servant, administrative reasons cited for transfer and Tenure requirements satisfied

4. Whistleblowing Cannot Create Transfer Immunity

• Employees cannot immunize themselves from transfer by claiming whistleblower status. Levelling allegations against officials doesn't create permanent protection. The party must establish causal link between whistleblowing and transfer

5. Standing Orders and Tenure Compliance

• Standing Order 04/2022 stipulated normal tenure of 3 years. The Petitioner completed 3+ years (July 2022 to July 2025) and therefore, the transfer was in accordance with prescribed tenure norms

Court's Key Observations

• Administrative Necessity: "It is well settled that Courts should be chary in interfering in matters of transfer. Interference with transfer orders at the drop of a hat completely dislocates the administrative functions of the department."
• Paramilitary Forces Context: "Especially when we are dealing with paramilitary forces, a much greater latitude is required to be accorded to the authorities concerned to decide on the posting of various persons."
• Burden of Proof Standard: "Mr. Sangwan has not been able to draw our attention to a scintilla of material as would even enable us to arrive even at a prima facie conclusion that the transfer order is vitiated by mala fides."