Report No. 185

Section 147

This Section bears the heading, "when witness compelled to answer". It reads as follows:

"147. If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto."

Section 132 deals with compellability. That means that while Section 146 deals with the permissibility of questions relating to credit or which are injurious to the character of a witness', Section 147 is intended to refer to the compellability of the witness.

We have to go in for a long discussion in regard to this Section.

In the 69th Report, in para 82.16, in a very brief paragraph, it was recommended that the words "matter relevant to the suit or proceeding" should be changed as "matter relevant to the matter in issue in the suit or proceeding". Two reasons were given as follows:

"82.16. With reference to Section 147, only a verbal point needs to be mentioned. The words "relevant to the suit or proceeding" in this Section refer to what is relevant to a matter in issue, as in Section 132. It would be desirable to make this clear, since the next Sectio.- Section 14.- makes a distinction between questions (strictly) relevant to the matter in issue and questions which are "relevant to the suit or proceeding" only because they affect the credit of the witness by injuring the character of the witness. We, therefore, recommend that 460 in Section 147, after the words "relevant to", the words "the matter in issue in" should be added."

We have considered the recommendation in the 69th Report in depth. It can be argued that for purposes of Section 147, one may have to refer to events of prior conduct of the witness outside the suit. A look at Section 148 makes it clear that such questions to impeach credit of the witnesses are permissible but should not be too remote. In fact, in the commentary under Section 148, Sarkar refers to a quotation from Stephen's General View of Criminal Law (See Sarkar, 15th Ed, 1999, p. 2232) as follows:

"if a woman, said Sir Stephen, prosecuted a man for picking her pocket, it would be monstrous to inquire whether she had an illegitimate child 10 years before, although circumstances might exist which might render such an inquiry necessary."

We may give some other examples. If the matter in issue is one relating to forgery of a document by the plaintiff and the witness claims to be an attestor, questions can be put to him that when he earlier gave evidence in relation to execution of another document, a Court of law held the document to be forged. Or it may refer to a finding that he had himself forged an earlier document. Insofar as compellability of witnesses is concerned, it is obvious that, even if the question relates to events outside the suit, they must be proximate enough to affect the opinion of the court on the credibility of the witness on the actual matters in issue in the suit or proceeding.

Sri Vepa P. Sarathi states that Sections 147 and 148 deal with two different types of question, though they both relate to questions injuring the character of the witness. Section 147 deals with questions which are relevant (irrelevant under ss. 6 to 55) to the suit or proceeding; and Section 148 deals with questions which are not relevant to the suit or proceedin.- but affect the credibility of the witness.

According to him, answers to questions referred to in Section 147 are compellable (because they are relevant); but the answering of questions under Section 148 would depend upon the opinion of the court that the imputation suggested does or does not affect the credibility of the witness. He then says that ss. 147 and 148 be left as they are. While the above observations are pertinent, we do not see why the words "relevant to" should not be qualified by the words to "the matter in issue". For the reasons earlier given, we feel that the proposal is only clarificatory.

After an in depth consideration of the recommendation in the 69th Report, we have finally decided that it is not necessary to deviate from it.

One other aspect is that Section 147 applies Section 132 so far as compellability of the witness is concerned.

Does it attract the entire Section 132 including the proviso (and the further recommendation which we made under Section 132)?

In our view, the questions permitted by Section 147 are those relating to credibility of the witness or which are injurious to the character of the witness and such questions and to answers thereto, which are compellable. Section 147 refers to 'such questions' meaning thereby those under Section 146.

Clause (3) of Section 146 does say such questions relating to credibility or character may also incriminate or expose one to a penalty or forfeiture.

Therefore, it is obvious that the entire Section 132 applies so far as protection to the witness is concerned.

We, therefore, recommend that in Section 147, after the words "relevant to", the words "the matter in issue in" should be added and no other amendment is necessary.

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