Questions Lawful in Cross-Examination under Section 149 of the Bharatiya Sakshya Adhiniyam, 2023: Scope, Object and Questions Affecting Credit

Cross-examination in India has a wider reach than in most systems. It is not confined to what the witness said in chief, it may range over anything relevant, and Section 149 adds a further dimension by permitting questions directed not at the facts at all but at the witness himself — his truthfulness, his position in life, and his character. That last permission is the most easily abused in the whole Adhiniyam, and six sections around it exist to restrain it.

1. The Provision

Section 149 corresponds to Section 146 of the Indian Evidence Act, and the proviso to the amendment of 2013, carried forward unchanged.

The opening words — 'in addition to the questions hereinbefore referred to' — are important. Section 149 does not describe the ordinary content of cross-examination; Section 143 does that, by providing that cross-examination must relate to relevant facts but need not be confined to what was said in chief. Section 149 adds a further category: questions that need not relate to any fact in issue at all, and that are directed at the witness.

2. The Two Objects of Cross-Examination

Reading Sections 143 and 149 together produces the classical division.

The classical statement of the object of cross-examination, long adopted in Indian practice, identifies three purposes: to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness; and to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party.

3. The Three Clauses

3.1 Clause (a) — testing veracity

The widest and least controversial. Questions testing whether the witness is telling the truth — about his opportunity to observe, his memory, his consistency, his interest, his relationship with the parties, and the inherent probability of his account.

Much of what falls under this clause would in any event be permissible under Section 143 as relating to relevant facts. The clause matters where the question touches nothing in issue but bears on whether the witness is truthful.

3.2 Clause (b) — who he is and his position in life

Questions establishing the witness's identity, occupation, residence, standing and circumstances. The clause serves two purposes: it enables the court to place the witness, and it exposes a witness who is not who he claims to be.

The clause is also the basis on which a witness's means and circumstances may be explored where they bear on whether he was where he says he was, or on whether he has been procured.

3.3 Clause (c) — shaking credit by injuring character

The most far-reaching and the one requiring restraint. It permits questions whose object is to injure the character of the witness in order to shake his credit — previous convictions, disreputable conduct, dishonesty in other dealings, and matters that would ordinarily be nobody's business.

The closing words remove one objection that would otherwise be fatal: the questions are permissible although the answer might criminate the witness or expose him to a penalty or forfeiture. That is consistent with Section 137, which removes the privilege and substitutes a use immunity.

4. The Controls — Sections 150 to 155

Section 151 is the heart of the scheme and is under-used. The court is required to decide, on two stated criteria, whether a witness must answer a question going only to credit: whether the imputation if true would seriously affect its opinion of his credibility, and whether the matter is so remote in time or of such a character that it would not. A question about dishonesty twenty years ago, or about a matter with no bearing on truthfulness, fails both.

Section 152 imposes a duty on counsel. The imputation must rest on reasonable grounds. Instructions from a client are not by themselves reasonable grounds where the questioner has no material to support the imputation, and the provision is a real professional constraint rather than a formality — which Section 153 makes clear by providing for a report to the disciplinary authority.

5. The Finality Rule — Section 156

This is the counterpart of Section 149 and the principal limit on it. A cross-examiner may ask anything within clause (c); once the witness has answered, the answer is final and no evidence may be led to contradict it.

The rationale is practical. Without the rule, every collateral imputation would generate its own subsidiary trial, and proceedings would be diverted into enquiries about matters having nothing to do with the issues.

6. The Proviso — Protecting the Victim of a Sexual Offence

The proviso to Section 149 is the most important restriction on clause (c) and was introduced because the permission to injure character had been used against the victims of sexual offences as a matter of routine.

In a prosecution for the specified offences, where the question of consent is in issue, it is not permissible to adduce evidence, or to put questions in cross-examination of the victim, as to her general immoral character or her previous sexual experience with any person, for proving consent or the quality of consent.

The proviso operates with two other provisions, and the three should be read together.

The division of labour is deliberate. Section 48 makes the material irrelevant; the proviso makes the question impermissible; Section 120 shifts the burden. A protection resting on relevance alone would be defeated by cross-examination that extracted the material anyway, and the proviso exists to prevent exactly that.

Lillu alias Rajesh v. State of Haryana, (2013) 14 SCC 643 completes the protection on the medical side, holding the two-finger test impermissible and its interpretation violative of the survivor's right to privacy and dignity, and holding that a finding that she is habituated to sexual intercourse is of no consequence.

7. The Duty to Put One's Case

A rule not found in the Adhiniyam but observed throughout Indian practice completes the picture of what cross-examination requires.

Where a party intends to contradict a witness, to suggest that his account is untrue, or to rely at trial on a version inconsistent with what the witness has said, the contrary version must be put to him in cross-examination so that he has an opportunity to answer it. The rule is associated with the decision in Browne v. Dunn, (1893) 6 R 67 (HL), and rests on elementary fairness.

Two consequences follow where it is not observed.

The evidence may be treated as unchallenged. A court may proceed on the footing that what was not put was not disputed, and may decline to entertain a challenge raised for the first time in argument.

The alternative version may be treated as an afterthought. A case advanced in final argument, which the witnesses who could have answered it were never asked about, carries correspondingly less weight.

The rule connects with Section 148, which requires a witness's attention to be drawn to the parts of a previous statement used to contradict him. Both rest on the same principle: a witness is entitled to meet what is to be used against him.

8. Practical Points

1. Distinguish the two objects. Questions as to facts are governed by Section 143; questions as to credit by Section 149, and the consequences differ.
2. Before a clause (c) question, ask whether you have reasonable grounds — Section 152 requires them and Section 153 supplies the sanction.
3. Expect Section 151 to be invoked. The court decides whether the witness must answer a credit question, on remoteness and on whether the imputation would seriously affect credibility.
4. Remember the finality rule. A denial on a collateral matter cannot be contradicted, and obtaining it is the end of that line.
5. Use the two exceptions where available — a denied previous conviction, and a false denial going to impartiality.
6. Never put character or sexual history to the victim of a sexual offence on the issue of consent; the proviso forbids the question and Section 48 makes the material irrelevant.
7. Put your case. A version not put may be treated as unchallenged or as an afterthought.
8. Object under Section 155 to anything needlessly offensive, where the court is bound to forbid it.

9. The Position Stated Shortly

1. Section 149 permits questions going to the witness rather than to the facts — veracity, position in life, and credit by injuring character.
2. It operates in addition to Section 143, under which cross-examination must relate to relevant facts but is not confined to the chief.
3. Clause (c) questions are permissible although the answer may criminate the witness, consistently with Section 137.
4. Six sections control the permission — Sections 150 to 155 — and Section 151 gives the court the decisive discretion.
5. Section 152 requires reasonable grounds, and Section 153 permits a report to the professional authority where there are none.
6. Section 156 makes the answer final on a matter going only to credit, subject to previous conviction and impartiality.
7. The proviso bars questions as to the character or previous sexual experience of a victim on the issue of consent, with Section 48 and Section 120.
8. A party must put his case to the witness, or risk the evidence being treated as unchallenged.

10. Related Topics and Provisions