Questions Without Reasonable Grounds and the Court's Report under Sections 152 and 153 of the Bharatiya Sakshya Adhiniyam, 2023

Section 149 permits a cross-examiner to ask questions whose object is to injure a witness's character. That is an extraordinary licence, and two sections immediately following it supply the discipline. The first says such a question ought not to be asked without reasonable grounds; the second gives the court power to report the questioner to his professional body. Together they are the only provisions in the Adhiniyam addressed to the conduct of counsel rather than to the admissibility of evidence.

1. Section 152 — Reasonable Grounds Required

Section 152 corresponds to Section 149 of the Indian Evidence Act. The reference in the opening words is to Section 151, which is the provision under which the court decides whether a witness shall be compelled to answer a question going only to credit — and behind that, to the credit questions permitted by Section 149(c).

2. The Chain of Provisions

Section 152 is the third link in a sequence, and it cannot be understood on its own.

3. What Amounts to Reasonable Grounds

The four illustrations do the work of definition, and read together they draw a workable line.

Three propositions emerge and each is useful in practice.

Instructions are enough — but only instructions properly given. Illustration (a) accepts instructions from the instructing pleader without more. What it does not cover is an advocate who has been told nothing and is acting on his own surmise.

Hearsay is enough if it is tested. Illustration (b) is the more interesting one. A statement from a person in court is not by itself reasonable ground; it becomes so when the advocate questions the informant and receives satisfactory reasons. The obligation is therefore to make some enquiry rather than to have proof.

A ground may emerge during the cross-examination itself. Illustration (d) recognises that the witness's own unsatisfactory answers may supply what the advocate lacked at the outset. Reasonable grounds do not have to exist before the witness enters the box.

4. 'Ought Not' — The Form of the Prohibition

The section says such a question ought not to be asked. It does not say it shall not be asked, and it does not say the answer is inadmissible.

Three consequences follow from that drafting.

The section is addressed to the questioner. It states a professional obligation rather than a rule of admissibility, which is why the sanction in Section 153 is a report to the professional body rather than the exclusion of evidence.

An answer given is not thereby inadmissible. Where the question has been asked and answered, the answer is on the record. What the breach affects is the propriety of the questioner's conduct and, in practice, the weight a court will give to an imputation shown to have had no foundation.

The court retains its own controls. Section 151 permits it to decide that the witness need not answer; Section 154 permits it to forbid an indecent or scandalous question; Section 155 requires it to forbid an insulting one. A question without reasonable grounds will very often be objectionable on one of those grounds as well, and the court is not confined to the Section 153 sanction.

5. Section 153 — The Report

Section 153 corresponds to Section 150 of the Indian Evidence Act. The earlier provision referred to a 'barrister, pleader, vakil or attorney'; the Adhiniyam uses the single modern expression advocate, consistently with the Advocates Act, 1961.

Four features define the power.

1. It is discretionary. The court may report; it is not obliged to.
2. It requires an opinion that the question was asked without reasonable grounds. The court must form that view, and ordinarily should give the advocate an opportunity to explain what his material was.
3. It applies only to an advocate. A question put by a party appearing in person is outside the section, there being no professional authority to report to.
4. The report goes to the High Court or the professional authority — in practice the State Bar Council, which exercises disciplinary jurisdiction under the Advocates Act, 1961, or the High Court to which the advocate is subject.

6. The Professional Dimension

Sections 152 and 153 sit alongside the standards of professional conduct, and the overlap is substantial.

The rules of professional conduct framed under the Advocates Act, 1961 require an advocate, in substance, to restrict himself to the evidence and not to make imputations without material; to refrain from scandalising a witness; and not to be a party to fabrication or to conduct unbecoming of the profession. An advocate who makes a serious imputation against a witness on no basis is exposed under those rules independently of the Adhiniyam.

Two situations recur and are worth distinguishing.

Acting on instructions. Illustration (a) protects an advocate who is instructed that the imputation is well founded. What it does not protect is an advocate who knows the instruction to be baseless, or who has been given nothing and invents the suggestion.

The client's insistence. A client frequently wants a witness attacked. The instruction is not itself reasonable ground unless it conveys material, and an advocate who puts a scandalous imputation because he was told to, without any basis for thinking it well founded, has not complied with Section 152.

7. Practical Points

1. Before putting a credit imputation, identify your material. Instructions, an informant's account tested by questioning, or the witness's own answers.
2. Where the material is an informant's statement, question him first. Illustration (b) requires satisfactory reasons, not a bare assertion.
3. Do not ask at random. Illustration (c) is unambiguous, and a fishing imputation is the paradigm breach.
4. Where the ground emerges during cross-examination, build it first — illustration (d) — by exploring mode of life and means of living before putting the imputation.
5. As opposing counsel, object under Section 152 and ask what the grounds are. The court is entitled to know, and an examiner without material will usually abandon the line.
6. Ask the court to invoke Section 151 as well, so that the witness is relieved of answering a remote or immaterial imputation.
7. Where the imputation was baseless and damaging, invite a report under Section 153 — sparingly, and only where the breach is clear.
8. Remember Section 156. An imputation on a collateral matter, once denied, cannot be proved, so putting it without grounds achieves nothing but damage.

8. The Position Stated Shortly

1. Section 152 requires reasonable grounds for a question conveying an imputation against a witness's character.
2. The four illustrations draw the line — instructions and a tested informant suffice; a random question does not; the witness's own unsatisfactory answers may supply the ground.
3. The standard is belief on material, not proof, and Section 156 will usually prevent the imputation from being proved in any event.
4. 'Ought not' states a professional obligation, not a rule of admissibility, so an answer given is not inadmissible.
5. Section 153 permits the Court to report the circumstances to the High Court or the advocate's professional authority.
6. The power is discretionary and applies only to an advocate, a party in person being outside it.
7. The sanction is what gives Section 152 its force, and the two should be cited together.
8. Instructions do not license a baseless imputation, and a client's insistence is not reasonable ground.

9. Related Topics and Provisions