Report No. 185
The Section bears the heading 'Questions lawful in crossexamination'. It reads as follows:
"146. When a witness is cross-examined, he may, in adition to the questions hereinbefore referred to, be asked any questions which tend-
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
There is something in common between this Section and Section 132 which states that a witness is not excused from answering on ground that the answer will "incriminate, or may tend directly or indirectly to expose, such witness, to a penalty or forfeiture of any kind". We have noted under Section 454 132, that the proviso prohibits the statement being used to arrest or to prosecute the witness or for being used in a criminal proceeding (other than one for perjury). This aspect is also relevant under Section 147 which we shall be considering hereinbelow.
The present Section, and in particular, clause (3) confers a corresponding right on the person who cross-examines a witness.
In Sri Lanka, in clause (1), for the word 'veracity', the following words are substituted, by adding two more words, namely, ' ' and 'credibility', as follows:
"accuracy, veracity or credibility"
In para 82.13 of the 69th Report, it was stated that while to some extent, 'credibility' can be tested by putting to the witness his previous 'inconsistent' statements as permitted by Section 145, that could not be the only basis for impeaching the creditworthiness of a witness and hence it is necessary to add, as done in Sri Lanka, the words ' and credibility' in clause (1). This change is necessary in clause (1) of Section 146.
So far as clause (2) of Section 146 is concerned, we agree with para 82.14 of the 69th Report that no amendment is necessary.
In this connection, Section 148 is also relevant.
Safeguards introduced in Section 148 may be needed to be inserted in Section 146 also. Section 148, as pointed by Sarkar (15th Ed, 1999, p. 2231) lays down that if any question as to credibility or character is not directly material to the issues but is relevant to the matter only in so far as it affects the credit of the witness by injuring his character, it is for the Court to decide whether or not the witness shall be compelled to answer it. In England, Order 36 Rule 38 of the Rules of the Supreeme Court says that:
'The Judge may, in all cases, disallow any question put in cross-examination of any party or other witness which may appear to him to be vexatious, and not relevant to any matter proper to be inquired into in the cause or matter'. There does not appear to be a similar provision in the Code of Civil Procedure, 1908. Of course, under Section 151 of the said Code, the Court has inherent power 'to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court'. Section 148 however contains these safeguards.
In this context, it must be stated that there is considerable abuse of the right of cross-examination, prevalent in India and which, writers say, is present even in UK though not so much in the continent. Sarkar (15th Ed, 1999, p. 2227-2228) quotes Wellman to say that sometimes reckless crossexamination by counsel goes unchecked by the Court and witnesses shudder to come into the witness box, particularly if they are women and their personal life and privacy are probed.
No doubt, the author says that sometimes such cross-examination has the opposite effect as it evokes more sympathy from the Court than would have otherwise arisen. He describes these lawyers as 'forensic bullies'. But, Lord Cockburn CJ (as quoted in Sarkar) was clear that such abuse of the right to cross-examine as prevalent 456 in England is not seen in the continent. He opined that it is the Judge's duty to curb the unwholesome questioning of the witness's character.
Phipson (15th Ed, 1999, para 19.22 to 19.28) considers this aspect elaborately and refers to the special provisions relating to cases of Rape and Allied Offences (paras 19.29 to 19.51) under the Sexual Offences (Amendment) Act, 1976 which provisions have been superceded by ss. 41 to 43 of the Youth Justice and Criminal Evidence Act, 1999.
Similar aspects have been dealt with by the Law Commission of India in its 172nd Report (2000).
Phipson also considers the matter in the context of cross-examination of an accused perso.- separately from para 17.20 to 19.18. Questions of considerable importance arise as to whether the Court can be vested with powers to disallow questions even if they are relevant to the points in issue. Sometimes the questions are the ones put to the accused while sometimes they are questions put by the accused to the complainant or to the prosecution witnesses or even in regard to the character or untrustworthiness of particular police witnesses.
The 69th Report has devoted a separate chapter (Ch. 99) as to 'Discretion of the Judge' at the end of the Report but felt no separate provision is necessary in that behalf and that Section 148 is sufficient.
Yet another aspect of the matter is whether the word 'character' would include 'disposition' where previous wrong actions relating to the 457 accused or witnesses (including police officers are the subject matter of questions). There is a large body of case law as to the balancing exercise to be conducted in this behalf by the Court and we shall refer to those aspects when we come to Section 148.
For the present, we may state that today, evidence of 'disposition' as part of 'character' is treated as relevant though cross-examination can be controlled by the Court. In fact, Explanation to Section 55 refers to 'general reputation' and to 'general disposition'. We may here refer to the fact that the (UK) Criminal Law Review Committee, 1972 recommended that the word 'character' must include 'disposition' (see Phipson, 15th Ed, para 19.21, footnote 75).
We may here add that Parliament has recently amended Section 146(3) by the Indian Evidence (Amendment) Act, 2002 (Act 4 of 2003) by inserting a proviso below Section 146(3) as follows:
"provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible, to put questions in the cross-examination of the prosecutrix as to her general immoral character"
We notice the recent addition of a proviso below Section 146(3) by Indian Evidence (Amending) Act, 2002 (Act 4/2003) but that is too narrow and the proposal in the 172nd Report (2000) of the Law Commission covers wider ground. We commend the format in the 172nd Report as extracted above and to drop the proviso as inserted by Act 4/2003.
Further clause (4) as recommended in the 172nd Report is wider but the definition of 'sexual assault' introduced in Section 376 of IPC has not been incorporated. Further the 172nd Report also includes Section 376E but that Section has not yet been incorporated in the IPC.
Hence, clause (4) of Section 146 as recommended in the 172nd Report cannot, for the present, be introduced here fully.
We also recommend that the words ' and creditability' be added after the word 'veracity' in clause (1).
We recommend that
(a) in clause (1) of Section 146, after the word 'veracity', the words ' and credibility' be inserted;
(b) the proviso after clause (3) shall be deleted;
(c) after clause (3), the following clause and Explanation shall be inserted, namely,
"(4) In a prosecution for an offence under Section 376, 376A, 376B, 376C or 376D or for attempt to commit any such offence, where the question of consent is in issue, it shall not be permissible to adduce evidence or to put questions in the crossexamination of the victim as to her general immoral character, or as to her previous sexual experience with any person for proving such consent or the quality of consent.
Explanation: 'character' includes 'reputation and disposition'."