Report No. 185
This Section says 'Court to decide when question shall be asked and when witness compelled to answer'. It reads as follows:
"148. If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations-
(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(2) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or 463 would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence;
(4) the Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable."
In the 69th Report, in para 83.3 it was stated that insofar as the Section applies to ordinary witnesses, they had no comments on it. The position of the accused as a witness, however, required some discussion, according to the 69th Report. The discussion then starts with Makin v. AG of New South Wales (1894) AC 57 and the observations of Lord Herschell.
The law has developed in England from what it was stated when Makin's case was decided in 1894. By 1991, the law has crystallized into new principles as to whether the Court must have discretion in allowing certain questions relating to the character and credibility of witnesses, whether they are accused or non-accused witnesses and though Section 148 specifically grants discretion to the Court in allowing questions, still this Section does not include the principles laid down recently by the House of Lords in DPP v. P, 1991 (2) AC 447: 1991 (3) All ER 337, referred to hereinbelow.
The 69th Report suggested that so far as witnesses are concerned, i.e. other than those accuse.- there is no need to make any further provision than what is there now in Section 148. The Report concentrated on the safeguards necessary in the case of an accused-witness and to what extent questions relating to his credibility or character should be controlled by the Court. The Report contains a draft of Section 148(2) in that behalf after a full discussion.
If we add subSection (2) to Section 148, as proposed, the Section becomes very lengthy. In our view, it would be better if a new Section 148A is introduced on the lines of the draft proposed in the 69th Report for Section 148(2). There too, the proposals require a few further changes: (1) adding the principle stated in DPP v. P: 1991 (2) AC 447 to which we shall presently refer; (2) deleting the clause relating to questioning a woman in rape cases about her disposition towards sexual offences, in the light of the Law Commission's 172nd Report.
We shall, therefore, first deal with Section 148 i.e. insofar as it deals with questioning witnesses (other than accused) and to the discretion of the Court. Now, in Section 148, there is need to redraft the language in the opening part. The way it is drafted, it can give a meaning which is just the opposite of what is intended.
The opening part of Section 148 reads thus:
"148. If any such question relates to a matter not relevant to the suit or proceeding, except insofar as it affects the credit of the witness by 465 injuring his character, the court shall decide whether or not the witness shall be compelled to answer it."
The word 'except' is like to mislead as it gives an impression that if the questions relate to the 'credit of the witness by injuring his character', the Court has no discretion to disallow the question and that the witness is compelled to answer it. But, the purport of Section 148 is just the opposite. The Section is intended to protect a witness in respect of these very questions which may hurt his character.
This aspect is clarified in Sarkar (15th Ed, 1999, p. 2231) as follows:
"Section 148 therefore lays down that if any such question is not directly material to the issue, but is relevant to the matter only insofar 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."
It is therefore our view, that the opening part the Section 148 should be amended as follows:
For the words "If any such question relates to a matter not relevant to the suit or proceeding except", the words "If any such question is not material to the issues in the suit or proceeding but is admissible" shall be substituted.
The next aspect concerns the development of the law since Makin in 1894 in England. That development is relevant both for witnesses who are accused and for witnesses not accused. [Insofar as witness-accused are concerned, we shall, as already stated, include the new principles in a new Section 148A rather than have Section 148(2)]. The further aspect so far as Section 148 is concerned is the addition of an Explanation to cover cases of defamation, as proposed in the 69th Report. We shall now take up these two matters.
Before we deal with the further developments of the law, we shall first refer to the position as stated in Makin case (HC). Lord Herschell said in that case as follows:
"the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."
Thus, as the law was laid down in 1894, questions relating to credibility or character could be put to a witness and the House of Lords did not feel that some discretion is to be given to the Court, in certain situations, to refuse permission to such questions. Questions relating to previous wrong-doing would go unobstructed. The same view was expressed in R v. Kennaway: 1917 (1) K.B. (at p. 29) by Lord Reading CJ as follows:
"It is not necessary to repeat what has often been stated in this court, that evidence which is otherwise admissible will not be inadmissible 467 merely because it may show that the prisoner has committed other offences."
The trend changed in Hobbs v. Tinling and Co.: 1929 (2) KB 1 (51) (CA) where Sankey LJ said that the Court has a discretion to refuse to compel a witness to answer questions about discreditable acts. He expressly referred to the provisions of Section 148 of the Indian Evidence Act, 1872, and said that in England, the Judge should have regard to the considerations listed in Section 148 of the Indian Evidence Act, 1872.
There are dicta in DPP v. Boardman, 1975 AC 421 in the speeches of Lord Wilberforce and Lord Cross that the Court must have a discretion.
Finally, the law became settled in DPP v. P: 1991 (2) AC 447: 1991 (3) All ER 337 (HC). Lord Mackay observed that the Court must consider whether "the evidence must have sufficient probative value so as to outweigh its prejudicial effect". The following passage from that judgment brings out the principle clearly: (p. 346 of All ER)
"From all that was said by the House in Boardman v. DPP, I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed.
But restricting the 468 circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle.
Once the principle is recognized, then what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must, in case, be a question of degree."
Thus the principle laid down in DPP v. P is qualitative as against Maken of 1894 which simply permitted prior evidence as a matter of quantity.
The above cases were cases of accused witnesses being questioned about that character or disposition.
Phipson has considered the question as to the applicability of the principle in DPP v. P to a witness who is not an accused. He referred to R v. Edwards 1991(1) WL R 207(CA) in which the police witnesses were sought to be questioned as to their previous conduct relating to obtaining forcible confessions. The question was disallowed. In R v. Irish 1995 CrL R 195, questions to show complainant was aggressive were disallowed.
Phipson, after referring to R v. Murray 1995 RTR 239 and R v. Kricker 1995 Crim LR 819 (CA) asks why the benefit of DPP v. P principle should not be extended to witness (other than accused)(para 19.09)(19.11) Dicta in R v. Viola 1982(1) WLR 1138 (CA) are confusing, though questions were admitted against a woman in a rape case.
We notice that Section 148 does give a discretion to the Court in the case of all witnesses (accused or not) and gives four guidelines. However DPP v. P principle is now proposed to be added to them.
The above principle of DPP v. P has, therefore, to be introduced into Section 148 in so far as non accused witnesses are concerned (and in proposed Section 148A in so far as accused-witnesses are concerned). We propose to add one clause in Section 148 in the manner stated below.
Now, we shall come to the third aspect concerning Section 148. This aspect is covered by paras 83.25 to 83.27 of the 69th Report.
In the discussion under Section 55 ("character as affecting damages") it is stated that in civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant. The Section has an Explanation that 'character' includes 'reputation and disposition'. See also Section 146.
In the 69th Report, a recommendation was made for insertion of a suitable proviso to the Explanation to Section 55, with the object of limiting roving cross examination under the head of facts which are relevant to character.
That recommendation was made in the context of relevancy. But now the question is to be considered, whether in regard to Section 148 also, it is desirable to give any indication to a similar effect. Of course, Section 148 is wider than Section 55 as it permits question to impeach the credit of the witnesses, even where they are not relevant to the issue. The Court must be vigilant, in regard to the cross examination of the plaintiff in a suit for defamation. (see para 83.26). Section 148 itself throws a duty on the Court to determine the propriety of questions likely to influence character and sets out some guidelines. It would not be inappropriate to draw the attention of the Court more particularly to those guidelines in regard to defamation suits. (para 83.27).
We agree that, therefore, an Explanation be added below Section 148 that the Court must consider if such questions are 'proper'.
Sri Vepa P. Sarathi has suggested that inasmuch as the discretion of the court is wide, should we make any change. In our view, the proposed amendment merely explains the scope of the discretion of the court.
In the light of the above aspects mentioned, for clause (4) of Section 148, the following clauses and Explanation be also substituted and we recommend accordingly:
"(4) The court shall have regard as to whether such evidence has or will have sufficient probative value to outweigh its prejudicial effect, in the circumstances of the case.
(5) The court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable.
Explanation:- Where, in a suit for damages for defamation for injury to the reputation of a person, an aspect of the character of that person, other than that to which the matter alleged to be defamatory relates, is likely to be injured by a question under this Section, the court shall have particular regard to the question whether, having regard to the considerations mentioned in this Section, such question is proper".