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unquestionable instances of absolute privilege. A counsel is justified in acting entirely on his instructions, and also in giving them in evidence if pertinent to the matter in issue, and he need not inquire into their truth or falsehood.*
(b). The advocate is trusted with interests and privileges and powers, almost to an unlimited degree. The law trusts him with a privilege in respect of liberty of speech, which is, in practice, bounded only by his own sense of duty, and he may have to speak upon subjects concerning the deepest interests of social life and the innermost feelings of the human soul.t
(c). In Munster v. Lamb, the Master of the Rolls observed: "If any one needs to be free of all fear in the performance of his arduous duty, an advocate is that person. His is a position of difficulty; he does not speak of that which he knows, but he has to argue and support a thesis which it is for him to contend for; he has to do this in such a way as not to degrade himself, but he has to do it under difficulties which are often pressing. If, in this position of difficulty, he had to consider whether everything which he uttered were false or true, relevant or irrelevant, he could not possibly perform his duty with advantage to his client; and the protection which he needs and the privilege which must be acceded to him is needed and accorded above all for the benefit and advantage to the public."
(d). In the case of Sullivan v. Norton, I. L. R., 10 Mad. (F. B.) 28, the Madras High Court held that an advocate in this country cannot be proceeded against either civilly or criminally for words uttered in his office as advocate. Collins C. J., who delivered the judgment of the Full Bench, observed: "I think that the advocates in this country have and should have the same privileges in respect of liberty of speech they have so long enjoyed in England; and that in this country it would be beyond measure embarrassing to the advocate and disastrous to the interests of the client, if the advocate was exposed to the liability of a criminal or civil charge for defamation for words uttered in Court."
(e). The pleader for the defence in commenting on some of the witnesses for the prosecution called them loafers. Thereupon, one of those witnesses prosecuted the pleader for defamation. The Bombay High Court held that in the case of an advocate, where express malice is absent, a Court, having due regard to public policy, would be extremely cautious before depriving him of the protection of exception 9 to section 499 of the Indian Penal Code-In re Nagarji Trikamji, I. L. R. 19 Bom. 340.
* Vide Hodgson v. Scarlett, 1 B. and Ald. 232; Brook v. Montague, Cro. Jac. 90.
151. The Court may forbid any questions or Indecent and inquiries which it regards as indecent scandalous ques- or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.
"The result of sec. 151 will be, that the Court cannot forbid indecent or scandalous questions, if they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed. If they have, however, merely some bearing on the questions before the Court, the Court has a discretion and may forbid them."-Field's Ev., 5th Ed., 647.
A witness will be required on cross-examination to answer any question, however disgracing, if, in the discretion of the Judge, such question fairly tends to test and characterise the veracity or general credibility of the witness.
"If a woman prosecuted a man for picking her pocket, it would be monstrous to inquire whether she had not had an illegitimate child ten years before, though circumstances 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 have invented the charge for that reason."-Sir J. F. Stephen's General View of the Criminal Law of England.
tended to insult
152. The Court shall forbid any question which Questions in- appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive
153. When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall
Exclusion of evidence to contradict answers to questions testing veracity.
be given to contradict him; but if he answers falsely, he may afterwards be charged with giving false evidence.
Exception 1.-If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous
Exception 2.-If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.
(a). A claim against an underwriter is resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The evidence
(b). A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not adınissible.
(c). A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d). A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
Scope of the Section.-This section is limited to matters which may be introduced by cl. 3, sec. 146 ante. The reason of the rule is
that if such evidence were allowed, the suit would become practically interminable by digressing into various collateral issues.
Exceptions.-The exceptions are wholesome, as they are easily proved and strike at the very root of the witness's trustworthiness. The first exception is taken from the 25th section of the Common Law Procedure Act, 1854; the second is in accordance with the opinions of the Barons of the Exchequer in the case of AttorneyGeneral v. Hitchcock, 11 Jur. 478.
Impeaching the Impartiality of a Witness.-The impartiality of a witness may be impeached, says Mr. Best, "by proving misconduct connected with the proceedings or other circumstances showing that he does not stand indifferent between the parties. Thus, it may be proved that a witness has been bribed to give his evidence or has offered bribe to others to give evidence for the party whom he favours, that he has used expressions of animosity and revenge towards the party against whom he bears testimony, &c." It may also be that the witness has been endeavouring to suborn witness against a party to the proceeding.
Inadmissible Evidence.-If a man deny having made a promissory note, and the fact whether he had or not is relevant to the trial only in so far as it might affect his credit, no contradiction of his statement could, according to the principle of this section, in strictness, be received-Reg. v. Parbhudas Ambaram, 11 Bom. H. C. R. 90.
Ill. (c).—Evidence was held to be admissible to prove that two witnesses for the prosecution were at Dhond till the afternoon of the day of the fire, and to show that it was highly improbable that they should have left Dhond at about 11 A.M. or noon, and therefore highly improbable that the accused should have been seen by them at Wahie as they asserted at 1 P.M. The case was like that in ill. (c), which shows that the admissibility of the testimony does not depend on the cross-examination of the witnesses to be contradicted-Reg. v. Shakaram Mukundji, 11 Bom. H. C. R. 166.
154. The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by by the
Question party to his own witness.
This section is an extension of section 142. Vide notes under that
When a party may be allowed to cross-examine his own witness.-It seems that the Judge may allow the party calling a witness to cross-examine him when he proves hostile as opposed to merely unfavourable.' The Court will properly allow cross-examination when a witness unexpectedly turns out to be hostile to the party who calls him, or is manifestly interested for the other party, or is unwilling to give evidence; or if the witness stand in a situation which naturally makes him adverse to the party who desires his testimony, as for example, a defendant called as the plaintiff's witness. Vide Radha Jiban Mustafi v. Tara Moni Dasi, 12 Moo. I. A. 380.
Hostile.-The mere fact that at a Sessions trial a witness tells a different story from that told by him bofore the Magistrate does not necessarily make him hostile. The proper inference to be drawn from contradictions going to the whole texture of the story is not that the witness is hostile to this side or that, but that the witness is one who ought not to be believed unless supported by other satisfactory evidence-Kalachand Sarkar v. Queen-Empress, I. L. R. 13 Cal. 53.
155. The credit of a witness may be impeached Impeaching cre- in the following ways by the adverse party, or, with the consent of the
dit of witness.
Court, by the party who calls him :
(1) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
Explanation.-A witness declaring another witness to be unworthy of credit may not, upon his