Section 146: Questions Lawful in Cross-Examination

Overview

Section 146 of the Bhartiya Sakshya Bill, 2023, outlines what questions are allowed when a witness is being cross-examined. Cross-examination is when the opposing lawyer questions a witness. This section ensures that lawyers can properly test the truthfulness of a witness’s statement and challenge their reliability, but within legal boundaries. It’s about fair questioning to get to the truth.

Key Principles / Ingredients

• Type of Evidence: This section primarily deals with oral evidence – the testimony given by a witness in court. However, it impacts how documentary or electronic evidence presented *by* the witness is viewed.
• Conditions for Admissibility/Relevancy: Questions are lawful if they relate to facts relevant to the case, even if those facts initially seem damaging to the questioner’s side. The key is relevance to the issues in dispute. Questions aimed solely at harassing or embarrassing the witness are *not* lawful.
• Burden of Proof Implications: While this section doesn’t directly shift the burden of proof, effective cross-examination under Section 146 can create doubt in the mind of the judge or jury, potentially leading to a finding that the prosecution hasn’t met its burden of proving guilt beyond a reasonable doubt.

How Courts Use this Provision

Judges act as gatekeepers. They will intervene if a lawyer asks questions that are clearly improper – for example, questions that are leading when the witness is not a hostile witness, or questions that call for speculation. The judge will also ensure questions are focused on relevant matters and don’t simply aim to harass the witness. The court balances the right to a thorough cross-examination with the need to protect the witness from unfair treatment.

Illustrations and Examples

• Example 1 – Simple Situation: A witness testifies they saw the accused steal a wallet. The opposing lawyer can ask, “Isn’t it true you were wearing glasses that day, and they were quite dirty?” This tests the witness’s perception and credibility.
• Example 2 – More Complex Situation: A witness claims they have no prior relationship with the accused. The lawyer can present evidence of a past business dealing and ask, “Didn’t you and the accused enter into a partnership agreement in 2020?” This challenges the witness’s honesty and reveals a potential bias. The lawyer isn’t *asserting* the partnership, but asking the witness to confirm or deny it.

Important Provisos / Explanations

Section 146 doesn’t have specific provisos or explanations attached to it. However, it’s understood in conjunction with other sections of the Bill dealing with leading questions (Section 144) and improper questions. The overall aim is to allow a robust, but fair, cross-examination.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the principles of Section 154 of the Indian Evidence Act, 1872, regarding cross-examination. However, the new Bill aims for greater clarity and conciseness in language, making the rules more accessible. There are no fundamental shifts in the permissible scope of cross-examination questions.

Key Takeaways

• Cross-examination is a vital part of a fair trial.
• Lawyers can question a witness’s truthfulness and credibility.
• Questions must be relevant to the case.
• Judges can intervene to prevent improper questioning.
• The goal is to uncover the truth, not to harass the witness.