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146. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend
Questions law. ful in cross-exami
(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.
The object of Sections 146 to 152.-" The object of these sections is to lay down in the most distinct manner the duty of counsel of all grades in examining witnesses, with a view to shaking their credit by damaging their character. I trust that this explicit statement of the principles, according to which such questions ought or ought not to be asked, will be found sufficient to prevent the growth, in this country, of that which in England has, on so many occasions, been a grave scandal. I think that the sections, as far as their substance is concerned, speak for themselves, and that they will be admitted to be sound by honourable advocates and by the public." Speech of Sir J. F. Stephen on the passing of the Bill.
Questions lawful in Cross-examination.-A witness should not be allowed to be asked questions on irrelevant topics for the mere purpose of contradicting him or of proving contradictory statements. Sir J. F. Stephen in his Digest, pp. 196, 197, says: "I shall not believe, unless and until it is so decided upon solemn argument, that by the law of England a person who is called to prove a minor fact, not really disputed, in a case of little importance, thereby exposes himself to having every transaction of his past life, however private, inquired into by persons who may wish to serve the basest purposes of fraud or revenge by doing so. Suppose, for instance, a medical man were called to prove the fact that a slight wound had been inflicted and been attended to by him, would it be lawful, under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs extending over many years and tending to expose transactions of the most delicate and secret kind,
in which the fortune and character of other persons might be involved. If this is the law, it should be altered."
It is clear that a witness is not to have his whole past life raked up and dragged into publicity merely because he comes forward in obedience to the law to give evidence in Court.
147. If any such question relates to a matter When witness relevant to the suit or proceeding,
to be compelled
the provisions of section one hundred and thirty-two shall apply thereto.
Scope of this Section and of Section 148.—In addition to questions which relate to relevant matters, a witness may be asked questions mentioned in sec. 146. If any such question relates to a matter relevant to the suit or proceeding, the provisions of sec. 132 are by this section declared applicable to it. If the question is as to a matter relevant only in so far as affects the credit of the witness by injuring his character, the Court is, by sec. 148 post, directed to decide whether or not the witness is to be compelled to answer, and may warn the witness that he is not obliged to answer it. The decision of the Court as to whether or not it shall compel an answer is to be governed by the considerations declared in the section. When there is a question asked as to which the answer may tend to criminate a witness, he may object that it is not as to a matter relevant to a matter in issue, or that, if relevant, it is relevant only as affecting his credit by injuring his character.*
Court to decide
shall be asked and when witness.compelled to answer.
148. If any such question relates to a matter not relevant to the suit or proceedwhen questioning, 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
* Vide Queen v. Gopal Dass, I. L. R. 3 Mad. 271.
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 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.
Vide notes to sections 146 and 147 ante.
Object of the Section.-This section and sections 151 and 152 provide rules for protecting witnesses from reckless and unjustifiable interrogation. "The words not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, in the above section, would seem to be synonymous with the words relevant to the inquiry only in so far as it tends to shake his credit by injuring character in section 153 post; and the result appears to be, that section 148 assumes it, as a general proposition, that a witness cannot be compelled to answer irrelevant questions; and section 153 assumes it as a further general proposition that, if a witness do answer an irrelevant question, his answer cannot be contradicted by other evidence, but that his answers to relevant questions may be so contradicted. Section 148 then provides, that when a question, although irrelevant, affects the credit of the witness by injuring his character, the Court shall have a discretion (for the exercise of which certain rules are laid down) as to compelling an answer; and section 153 enacts, that where such a question has been answered, the usual rule as to the inadmissibility of evidence to contradict answers to
irrelevant questions shall apply, save and except in two cases; but that, if the witness answers falsely, he may afterwards be charged with giving false evidence."-Field's Ev., 5th Ed., 644.
Clause (2). The interests of justice, says Mr. Taylor, "can seldom require that the errors of a man's life, long since repented of and forgiven by the community, should be recalled to remembrance at the pleasure of any future litigant."
Clause (4).—See illustration (h), section 114 ante. In drawing an unfavourable inference from a witness's refusal to answer such a question, it should be remembered that "a perfectly honourable but excitable man may occasionally repudiate a question which he regards as an insult, and to infer dishonour from his conduct would, of course, be unjust; but, generally speaking, an honest witness will be eager to rescue his character from suspicion, and will at once deny the imputation, rather than rely on his legal rights, and refuse to answer the offensive interrogatory."
Question not to be asked without reasonable grounds.
149. No such question as is referred to in section one hundred and forty-eight ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is wellfounded.
(a). A barrister is instructed by an attorney or vakil that an important witness is a dákáit. This is a reasonable ground for asking the witness whether he is a dákáit.
(b). A pleader is informed by a person in Court that an important witness is a dákáit. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dákáit.
(c). A witness, of whom nothing whatever is known, is asked at random whether he is a dákáit. There are here no reasonable grounds for the question.
(d). A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dákáit.
Reasonable grounds.-"The illustrations show that the reasonable grounds which justify such questions may be much slighter than would justify a man in making an imputation under other circumstances. A barrister who is told a discrediting fact by an attorney or vakil, or a pleader who hears such a fact from a person who appears to know about it, is justified in so far assuming its truth as to question a witness about it; and he may even do so with no other justification than the witness's unsatisfactory replies."-Cun. Evi., 354.
Procedure of Court in case of question being asked without reasonable grounds.
150. If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil, or attorney is subject in the exercise of his profession.
Import of the Section.-In order to understand fully the import of this section, it is necessary to know what the sections in the original draft were. It was therein provided in substance "that no person should be asked a question which reflected on his character, as to matters irrelevant to the case before the Court, without written instructions; that, if the Court considered the question improper, it might require the production of the instructions; and that the giving such instructions should be an act of defamation, subject, of course, to the various rules about defamation laid down in the Penal Code. To ask such question without instructions was to be a contempt of Court in the person asking them, but was not to be defamation." To the original sections the following objections were taken : 1st-That the difficulty of obtaining the written instructions would be practically insuperable; 2nd-That the Native Bar throughout the country were already subject to forms of discipline, which were practically sufficient; 3rd-That in this country, the administration of justice is carried on under so many difficulties, and is so frequently abused to purposes of the worst kind, that it is of the greatest importance that the character of witnesses should be open to full inquiry. These reasons satisfied the Committee in charge of the Bill, and sections 146 to 152 were substituted in their places.
Privilege of Counsel.-(a). The utterances of counsel as such during the conduct of a case in Court may be classed with the