Report No. 185
We are proposing Section 148A in the place of Section 148(2) proposed in the 69th Report.
As stated in the discussion under Section 148, we have modified the recommendation in respect of Section 148(2) in the 69th Report to become Section 148A instead, in so far as it is proposed to make a special provision for the protection of accused-witnesses. Here too, as already stated, the proposal must include the balancingO principle in DPP v. P referred to in our discussion under Section 148.
A further correction is necessary in the proposals made in the 69th Report, namely, that the permissibility of putting question to a woman complainant in a rape case should no longer remain in view of the 172 Report of the Law Commission. This has already been done by Central Act 4/2003 by introducing a proviso in Section 146(3) but, we have enlarged it a little more by omitting the proviso and proposing a wider provision in Section 146(4).
In the 69th Report, reference was made to the position in Australia where a provision similar to the one in Section 1(f) of the Criminal Evidence Act, 1898 of England, permitting previous convictions of the accused to become an issue only if, inter alia, the nature or the conduct of his defence is such as to involve imputations on the character of prosecution witnesses.
In Victoria, the proviso to Section 399 of Crimes Act, 1958 states that permission be applied before the Judge in the absence of the jury, for such cross examination. In Dawson v. The Queen: 106 C.L.R. page 1, Dixon CJ said that the provision gives absolute discretion to the Judge. In New South Wales, by statute 55 Vic. No.5, Section 6(189), it was enacted that every person charged with an indicatable offence "shall be competent but not compellable, to give evidence in every court on the hearing of such change."
The Section contains a proviso as follows: (see proviso NUL to se. 407 of the Crimes Act, 1900 NSW) (see para 83.12)
"Provided that the person so charged shall not be liable to be called as a witness on behalf of the prosecution nor to be questioned on crossexamination without the leave of the judge as to his or her previous character or antecedents."
Even in Victoria, Section 399 above referred, contains an exception as follows:
"unless the nature or the conduct of the defence is such as to involve imputations on the character of the prosecutor or the witness for the prosecution:
Provided that the permission of the Judge (to be applied for in the absence of the jury) must first be obtained."
These provisions have been referred to in Ch. 83 of the 69th Report. Reference was also made to Rule 21 of the Uniform Rules of Evidence in USA and to Rule 25 of the New Jersey Rules. Reference was made to Brown v. US: (1958) 356 US 148 which enables an accused to be cross examined when he decided to take the stand in his own defence. His credibility can be then impeached and his testimony assailed like that of any other witness. Reference was also made in the 69th Report to the judgment of the 7th Circuit in US ex. Rel. Indin v. Date: 357 F ed. 911 (915-916) in relation to permissibility of waiver by the accused of the right of self incrimination.
In para 83.23, it was recommended that in view of the special considerations to which they had referred and were the basis of the legislative provisions in other countries, certain restrictions as to the scope of questions as to character be inserted, so far as the accused are concerned. The recommendations in para 83.24 are as follows:
"(a) An accused person who offers himself as a witness in pursuance of Section 315 of the Code of Criminal Procedure, 1973, may be compelled to answer questions which incriminate him as to the offence charged;
(b) An accused so offering himself as a witness, shall not, however, be compelled to answer questions tending to show that he has committed, or has been convicted of, or been charged with, any other offence, nor shall he be compelled to answer questions showing that he is of bad character, except in the following cases:-
(i) where proof of commission or conviction or charge of such other offence is relevant to a matter in issue (i.e. relevant to the very offence with which he is now charged);
(ii) where he himself has asked questions to a witness to establish his good character, or has given evidence of his good character; or
(iii) where the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or prosecutrix, provided leave of the court is obtained.
(iv) where the accused has given evidence against any other person charged with the same offence."
In the (iii) type of cases, Section 155(4) permits such evidence but in the 172nd Report of the Law Commission, on the lines of the UK Sexual Offences (Amendment) Act 1976, replaced by the Youth Justice and Criminal Evidence Act, 1999, it has been recommended that such questions cannot be put to a woman and that Section 155(4) should be deleted. This has already been done by the Indian Evidence (Amendment) Act, 2002 (Act 4/2003) by omitting Section 155(4).
In the result, Section 148A (in the place of Section 148(2)) as recommended (para 83.24) in the 69th Report will read as follow.- (1) after adding the principle in DPP v. P at the end and (2) after deleting the clause in the draft proposals regarding cross examination of complaint-prosecutrix by the accused:-
"148A. Accused person not to be asked certain questions.- An accused person who offers himself as a witness in pursuance of Section 315 of the Code of Criminal Procedure, 1973, shall not be asked and if asked, shall not be compelled to answer, any question tending to show that he has committed or has been convicted of or been charged with any offence other than that with which he is then charged, or that he is of bad character unles.-
(i) the proof that he has committed or been convicted of such other offence is relevant to a matter in issue; or
(ii) he has personally or by his advocate asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character, or
(iii) the nature or conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution,(other than the character of the prosecutrix) without obtaining the leave of the Court for asking the particular question; or
(iv) he has given evidence against any other person charged with the same offence; and unless the court is satisfied that such evidence of which the witness is compelled as aforesaid, has or would have sufficient probative value which outweighs the prejudice that may be caused."
We recommend accordingly.