Report No. 69
Objectionable Question in Cross-Examination
Sections 149 to 152
The Court is, by section 148, vested with power to determine the propriety of questions which are not relevant to the suit or proceeding except in so far as they affect the credit of the witness by injuring his character. Certain matters of detail regulating such questions, namely, the procedure to be followed by the court, and the obligation of counsel putting such questions, are dealt with in sections 149 to 152.
84.2. Section 149.-
The first important provision, which deals with the obligation of counsel, is contained in section 149. It provides that no such question as is referred to in section 148-that is to say, a question which is not relevant to the suit for proceeding but is intended to affect the credit of the witness by injuring his character-ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded. It would appear from the illustrations to the section that if a barrister1 is instructed by an attorney or vakil that an important witness is a dacoit, the instruction is regarded as a reasonable ground for asking the witness whether he is a dacoit.
Then, if a pleader is told by a person in court that an important witness is a dacoit and, on being questioned by the pleader, the informant gives the factual reason, that is also a reasonable ground for putting the question. In contrast, witness, of whom nothing what ever is known, cannot be asked, at random, whether he is a dacoit. There are here no reasonable grounds for the question. The case is different if the witness, on being questioned as to his mode of life and means of living, gives an unsatisfactory answer.
Thus, whether there are reasonable grounds depends on the facts of the case and in determining whether they exist, several considerations may be material-such as, the source of the information, the importance of the witness, the care taken to check the accuracy of the information, and so on. It is, thus, primarily the duty of counsel to check the accuracy of the information. This duty is often described as a discretion.
1. These are the expressions used at present.
The importance of this section cannot be over-emphasised. But it must be pointed out that the discretion vested in counsel under the section is of greater importance than the function of the court in checking improper questions. A court can, under section 148, overrule an improper question. But half the damage is done by putting the question. Once a serious defamatory allegation, particularly about a person having been guilty of a serious crime is made, the harm done may be irreparable.
An innocent witness would be too eager to answer the question, but the psychological harm to the witness and the impact which the question might have on others who are not prepared to believe the denial by the witness, would be of great magnitude. Therefore, the duty placed on the shoulders of counsel under section 149 to make reasonable enquiries before putting a question which might injure the character of the witness, is a very heavy one. In this sense, section 149, though briefer than section 148, is of far greater importance.
84.4. Case of previous convictions or misconduct.-
The considerations which weigh with the court under section 148 must, of course, be borne in mind by counsel under section 149. He must also bear in mind that the impeachment of a witness by a reference to his bad character is subject to an important limitation, namely, the misconduct alleged must be of such a nature that it affects the credibility of the witness. Even though the scope of the cross-examination as to particular acts of misconduct may have been virtually unlimited at common law, and even though section 146, where it uses the phrase "affect the credit of the witness by injuring his character", may suggest a very wide line of attack on the reputation of the witness, yet the provisions of section 148 and sections 151 and 152 are also important as to the content of the questions that are permissible.
The provisions of sections 149 and 150 are equally important as to the duty of the court and as to the principles on which counsel's discretion is to be exercised. Judicial guidance and supervision, by way of an appeal to the counsel's own discretion and sense of propriety, is not therefore ruled out. The fact that the witness has suffered a previous conviction may have a material bearing on his credibility; but, if the matter is to be considered on principle, the nature of the crime would also appear to be relevant.1
1. Cross Evidence, (1974), p. 235.
84.5. Original draft.-
It may be of interest to note that in view of the harm that would be caused to the witness, the original draft of the section in the Evidence Bill, as introduced by Stephen, was much more stringent as regards the obligation of counsel. In substance, that draft provided that no person should be asked a question which affects his character as to matters irrelevant to the case before the court, without written instructions; the court was even empowered to require the production of the instructions where it considered the question improper.
It was further sought to be provided that the giving of such instructions should itself be an act of defamation, subject, of course, to the various rules about defamation laid down in the Indian Penal Code. As regards the person asking those questions, though he was not to be regarded as guilty of defamation, to ask such questions without instructions was to be punishable as a contempt of court.
84.6. These proposals were, however, very strongly criticised by the Bar and were also objected to by most of the local Governments. It was pointed out that the difficulty of obtaining written instructions would be practically insuperable. It was also urged that the Bar was already subject to forms of discipline which should, for all practical purposes, be sufficient. Finally, it was stated that it is of the greatest importance that the character of the witnesses should be open to full inquiry, particularly in Indian conditions, and rigid restrictions in this regard might lead to injustice. The weight of this criticism was realised, and the sections were revised at the Committee stage, and put in the form in which they now appear. A hope was expressed by the Law Member (Stephen) that "they will be admitted to be sound by all honourable advocates and by the public".1
1. Proceedings of the Legislative Council of India Gazette of India, 30th March, 1872, Supplement, pp. 237-238.
84.7. It would be too much to say that the hopes expressed by the Law Member, to which we have referred above, have been fully realised. Cross-examination does, sometimes, travel beyond legitimate limits, owing to insufficient attention paid to the obligation imposed on the Court by section 148 or on counsel under section 149. Section 148, in general, and sections 151 and 152 in particular, expect the court to use its overseeing eye and to disallow questions which are improper, indecent, scandalous, insulting or annoying or needlessly offensive. Of course, nothing which is relevant can be scandalous, as was observed by Subramanian Iyer J. Nevertheless, there do exist certain boundaries beyond which cross-examination ought not to travel, even if the boundaries may not be very well defined.
84.8. Balancing of considerations.-
The matter requires a balancing of considerations on the facts of each case. That there are two sides to the question was lucidly brought out by Stephen, in his General View of the Criminal Law in England. He pointed out:1
"If a woman prosecuted a man for picking her pocket, it would be monstrous to enquire whether she had not had an illegitimate child ten years before though ciraum Stances might might exist which might render such an inquiry necessary. For instance, she might owe a grudge to the person against whom the charge was brought on account of circumstances connected with such a transaction and (might) have invented the charge for that reason."
The illustrations to the section show the general scope of the reasonable grounds which justify such questions and ought to guide legal practitioners and the court. Necessity and proportion are the two broad principles, which underline the propositions enacted in the sections on the subject. It has to be remembered, as was pointed out extra-judicially by Lord Birkenhead,2 that in some cases, the issues are of such a nature that severe and even very wounding cross-examination is required. "Justice in such cases could not be elucidated without the most searching, offensive and exhaustive cross-examination."
The same point of view has been expressed more pithily in the Dharm Shastras, where it is stated3 that the receipt underlying a case has got to be extracted as a physician takes from the body an iron dart by means of surgical instruments. Finally, we may refer to what Lord Chief Justice Cockburn, responding to that toast of the Judges at a Bar dinner given in hour of the great French advocates
M. Berryer, said:4
"My noble and learned friend Lord Brougham, whose words are the words of wisdom, said that an advocate should be fearless in carrying out the interests of his client; but I couple that with this qualification and restriction that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interests of his clients per fas but not per ne fas. It is his duty to the utmost of his power to seek to reconcile the interests he is bound to maintain and the duty it is incumbent on him to discharge with the immutable interests of truth and justice."
1. Stephen General View of the Criminal Law in England, quoted by Field.
2. Birkenhead Law, Life and Tetters, Vol. 1, p. 242, quoted by Ramaswami J. in Ayeasha Bi v. Peerkhan, AIR 1954 Mad 741 (750).
3. Kane History of Hindu Dharma Shastras, Vol. 3, p. 271.
4. Cockburn, cited by Ramaswami Magisterial and Police Guide, (1951), Vol. 1, p. 190.
If worked in this spirit, the present law should prove to be adequate. We have no further comments to make on section 149, except that the illustrations could be revised and the expression "advocate" substituted in the section also.