Who is to decide when a question shall be asked and when the witness can be compelled to answer?

Question: Who is to decide when a question shall be asked and when the witness can be compelled to answer?

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Answer

Section 148 of the Indian Evidence Act lays down the provision that it is the Court to decide when a question shall be asked and when the witness can be compelled to answer. It states as:

“If any such question relates to matter not relevant to the suit or proceeding, except in so far 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 nature that the truth of the imputation 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 proper if they are of such nature that the truth of the imputation 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.
3. Such questions are improper if there is a great disproportion between the importance of the imputations 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.”

When any such question, that is, the question referred to in section 146, is not relevant to the suit or proceeding, the court must decide whether or not the witness should be compelled to answer it and may warn the witness that he is not obliged to answer it.

Such questions are proper—

1. if they are of such a nature that the truth of the imputation made touches the credibility of the witness.

They are improper—

1. if the imputation refers to matters (a) so remote in time, or (b) of such a character, that its truth does not affect the credibility of the witness; or
2. if there is a great disproportion between the importance of the imputation and the importance of the evidence.

If the witness refuses to answer any question it is open to the court to draw the inference that the answer if given would be unfavourable as under section 114, Illustration (b).

The object of section 148

The object of this section is to prevent the unnecessary raking up of the past history of a witness when it throws no light whatsoever on the questions at issue in a case.

For example: On an indictment for rape, or attempt at rape, or for an indecent assault, the prosecutrix cannot be asked in cross-examination whether she had a connection with another person, not the accused; and if she denies it, evidence cannot be called to contradict her. But she can be asked whether she had on previous occasions connection with the accused, or whether she was a common prostitute.

The following statement of the Supreme Court in State of Punjab v. Gurmit Singh, [(1996) 2 SCC 384] highlights the duty of the court in this respect: “There has been lately a lot of criticism of the treatment of the victim of sexual assault in the court during their cross-examination some defence counsel adopt the strategy of continual questioning of the prosecutrix as to details of the incident. The court should not sit as a silent spectator.

While every latitude should be given to the accused to test the veracity of the prosecutrix and credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim.

A victim of rape has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as discrepancies and contradictions in her evidence.”

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X