This article is written by MUSKAN KUNWAR, TRINITY COLLEGE OF LAW, PUNE, SY B.A. LL.B. during her internship at LeDroit India.
Abstract
Cross-examination is one of the most essential pillars of an adversarial trial. It provides the opposite party an opportunity to expose the witness to the scrutiny of the Court with respect to their veracity, memory and credibility. Nevertheless, the right to cross-examine is not an unrestricted right to ask all kinds of questions, and the law has imposed restrictions regarding the relevance of questions as well as the dignity of witnesses.
Sections 151 and 152 of the Indian Evidence Act, 1872 granted the Courts power to forbid indecent, scandalous and insulting questions. Further, Sections 153 to 155 regulated the use of evidence for contradicting answers, questions to one’s own witness and impeaching the credit of a witness. This paper analyses these provisions and the judgments delivered thereon, so as to establish the point that the law seeks to preserve the right of cross-examination as well as the dignity of witnesses.
Keywords: Cross-examination; improper questions; witness dignity; judicial control; credibility; impeachment; Bharatiya Sakshya Adhiniyam.
Introduction : Cross-examination is an important instrument for discovering the truth. The skill of the cross-examiner can play an important role in testing the evidence and presenting his case. It exposes the witness to scrutiny by testing his memory, veracity and truthfulness. Hence, the law has granted wider powers to cross-examine than to examine a witness. However, there is a thin line between putting a witness on the hot seat and humiliating him.
The Court has to balance both aspects while exercising control over cross-examiners. According to the Indian Evidence Act, Section 146 permitted a party to put questions to test the veracity of a witness, to discover who the witness was and what was his position in life, and to shake his credit. However, Sections 151 and 152 of the Indian Evidence Act, 1872 gave the Courts the power to forbid indecent, scandalous, insulting or annoying questions. Similar provisions are also present in the Bharatiya Sakshya Adhiniyam, 2023, which we shall discuss later. This paper tries to analyse the scope of cross-examination so as to determine when it transforms into harassment of the witness.
Scope of Cross-Examination and Judicial Control
Cross-examination, as we know, is not confined only to the facts stated by the witness in his examination-in-chief. According to Section 138 of the Evidence Act, cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
The Gujarat High Court in the case of Dhruben Guraldas Balani v. State of Gujarat elucidated that during cross-examination, not only the facts stated by a witness in his examination-in-chief may be pressed but also those affecting his credibility. However, it also held that the right of cross-examination cannot be exercised to ask irrelevant or vexatious questions merely for the purpose of annoying the witness.
On similar grounds, the Delhi High Court in R.K. Chandolia v. CBI remarked that cross-examination is a right granted to the parties, but that right cannot be exercised to ask questions which are irrelevant or unnecessarily offensive. Thus, it is evident that judicial control of cross-examination is necessary to ensure that irrelevant, scandalous or offensive questions are not raised merely to harass the witness.
Section 151: Indecent and Scandalous Questions
According to Section 151 of the Indian Evidence Act, the Court may forbid any question or inquiry which in its opinion is indecent or scandalous. However, there is an important exception. The Court cannot forbid such a question where it relates to a fact in issue or to matters necessary to be known in order to determine whether or not a fact in issue existed.
Any question which is asked for the purpose of determining a fact in issue can therefore be entertained even if that question is indecent or scandalous, provided it falls within the statutory exception. However, if the question is asked merely for the purpose of humiliating the witness and is not relevant or necessary for determining the fact in issue, the Court may forbid it, particularly under Section 152.
The case of Prakash Rajaram v. State of Maharashtra discusses this distinction. The Bombay High Court considered questions relating to the private life of a witness and explained that a question should not be forbidden merely because it appears scandalous when it relates to a fact in issue or is necessary to determine whether such fact existed. On the other hand, where a question is merely intended to insult or annoy the witness, Section 152 gives the Court power to forbid it.
Section 152: Questions Intended to Insult or Annoy
Section 152 of the Indian Evidence Act deals with questions intended to insult or annoy the witness. It empowers the Court to forbid any question which appears to be intended to insult or annoy the witness and also questions which, although proper in substance, are unnecessarily offensive in form.
It must be noted that a question which is substantially proper may still be asked in an unnecessarily offensive manner. Thus, such questions also fall under the ambit of Section 152. In the case of Dhruben Guraldas Balani, the Gujarat High Court held that the right of cross-examination can be used only for relevant purposes and not for vexatious questions used merely as a means of harassing the witness. Thus, the Court can intervene if, during cross-examination, a witness is asked questions which, although related to a permissible matter, are unnecessarily offensive in nature.
Thus, from the discussed Sections, we can conclude that the right of cross-examination does not empower a cross-examiner, merely under the pretext of testing the veracity of the witness, to subject the witness to unnecessary annoyance, insult or humiliation. As observed by the Gujarat High Court in Dhruben Guraldas Balani, a party cannot misuse the right of cross-examination by asking irrelevant and vexatious questions. The right of cross-examination is not a right to waste the time of the Court.
Moreover, in many situations, the cross-examiner may seek to embarrass the witness by asking questions which appear to challenge his veracity but actually have nothing to do with the fact in issue. In such cases, it is for the Court to determine whether the question is relevant and legally permissible.
Section 153: Limitation on Contradicting Answers
According to Section 153, no evidence is to be given to contradict the answers of a witness to questions put merely because the answers are injurious to the credit of such witness. However, the Section contains specific exceptions, including questions tending to show that the witness is biased or that he is otherwise not impartial, and questions relating to previous conviction in the circumstances provided by the Section.
This Section imposes a limitation on the use of further evidence for contradicting answers to questions which have been put merely for the purpose of injuring the credit of the witness. It must be noted that the Section does not allow further evidence to be given merely to wound the credit of a witness.
Thus, it may be concluded that the object of this Section is to prevent the trial from becoming an extended inquiry into collateral facts which are prejudicial to the character of the witness. In order to restrict the use of such collateral facts, answers to questions asked solely for injuring the credit of the witness cannot ordinarily be contradicted by further evidence.
Section 154: Question by Party to His Own Witness
According to Section 154, if a party examines his own witness, the Court may permit such party to put questions to his own witness which might be put in cross-examination by the adverse party.
The permission of the Court is required and is granted when the Court considers it just and proper.
The object of this Section is to assist the Court in discovering the truth. If a witness has departed from the expected version of the party who called him, the Court may permit that party to question the witness in the manner normally permitted to the adverse party. It must be noted that this provision is not merely a penalty for a hostile witness. It is a procedural mechanism intended to assist the Court in assessing the truthfulness of the testimony.
Section 155: Impeaching the Credit of a Witness
Section 155 of the Indian Evidence Act deals with the various modes by which the credit of a witness may be impeached. According to this Section, the credit of a witness may be impeached by proving that persons who know him regard him as unworthy of credit, by proving that he has been bribed or has accepted a corrupt inducement to give evidence, and by proving that his former statements are inconsistent with his present testimony.
A party cannot accuse the other party’s witness of giving false evidence before the Court merely because he does not like his answers. Thus, this Section lays down recognised modes by which the credit of a witness may be impeached. It must be noted that this Section does not empower a party to attack the witness personally. The object is to assist the Court in determining whether the testimony of a witness deserves belief.
The Position under the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 came into force with effect from 1 July 2024. The provisions concerning cross-examination and judicial control are reorganised under the BSA.
The relevant provisions are:
– Section 149: Questions lawful in cross-examination;
– Section 150: When witness to be compelled to answer;
– Section 151: Court to decide when question shall be asked and when witness compelled to answer;
– Section 152: Questions not to be asked without reasonable grounds;
– Section 153: Procedure of Court in case of question being asked without reasonable grounds;
– Section 154: Indecent and scandalous questions;
– Section 155: Questions intended to insult or annoy;
– Section 156: Exclusion of evidence to contradict answers to questions testing veracity;
– Section 157: Question by party to his own witness; and
– Section 158: Impeaching the credit of a witness.
Thus, the BSA has retained the basic principles of the Indian Evidence Act while reorganising the provisions and expressly dealing with questions asked without reasonable grounds.
One of the significant provisions concerning sexual offences is Section 48 of the BSA, which deals with the relevance of evidence of character or previous sexual experience in certain sexual-offence prosecutions. Where consent is an issue, evidence of the character of the victim or of previous sexual experience with any person is not relevant for proving consent or the quality of consent in the circumstances covered by the provision. Therefore, a victim’s private sexual history cannot simply be brought into cross-examination to attack the victim’s credibility or to prove consent.
The Judicial Role: Truth, But Not Humiliation
The role of the judges in the cross-examination process is not to stop every inconvenient question. Cross-examination is a process in which the witness is placed under scrutiny and the questions may sometimes be difficult or uncomfortable. However, there is a point when a judge should intervene to stop the cross-examiner from misusing his rights.
As observed by the Gujarat High Court in Dhruben Guraldas Balani, cross-examination is a right, but that right cannot be exercised to ask irrelevant and vexatious questions merely in order to harass the witness. Similarly, the Bombay High Court in Prakash Rajaram recognised the importance of examining whether questions concerning private matters are actually relevant or necessary to determine a fact in issue.
Therefore, it may be concluded that questions in cross-examination should not be asked merely for the purpose of putting the witness in an embarrassing position. The judge should intervene where questions are primarily intended to embarrass, insult or annoy the witness, or where they are irrelevant or otherwise impermissible under the law. The Court must ensure that questions have a legitimate connection with the facts in issue, relevant facts or the credibility of the witness.
The ultimate purpose of cross-examination is to test evidence and assist the Court in discovering the truth. It should be strong enough to challenge a witness, but not so abusive that the process itself becomes harassment.
