Report No. 69

V. Recommendations as to Accused

83.23. We are of the view that the special considerations to which we have referred at the outset.1 and which have been the basis of the legislative provisions in other countries, justify the insertion of certain restrictions as to the scope of questions as to character, in relation to the accused.

1. Para. 83.4, supra.

83.24. We have discussed the matter at length in view of its importance. Our recommendations on this point are as follows:-

(a) An accused person who offers himself as a witness in pursuance of section 315 of the Code of Criminal Procedure, 1973, may be compelled to answer questions which incriminate him as to the offence charged;1

(b) An accused so offering himself as a witness, shall not, however, be compelled to answer questions tending to show that he has committed, or has been convicted of, or been charged with, any other offence, nor shall he be compelled to answer questions showing that he is of bad character, except in the following cases:-

(i) where proof of commission or conviction or charge of such other offence is relevant to a matter in issue (i.e. relevant to the very offence with which he is now charged);

(ii) where he himself has asked questions to a witness to establish his good character, or has given evidence of his good character; or

(iii) where the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or prosecutrix, provided leave of the Court is obtained.

The situation in (iii) may arise, for example, in a sexual offence, where the accused not only takes the plea of free consent, but in order to prove this plea, produces evidence which will tend to show that the prosecutrix is a woman of loose character. Leave of the Court should, however, be necessary in this case, to avoid abuse.

(iv) where the accused has given evidence against any other person charged with the same offence.

The last mentioned situation may arise where two or more persons are being tried at the same time and their defences are contradictory. In this case, the accused is really like any other witness against the co-accused.

1. See discussion as to section 132.

Section 148(2)-To be Added

The following is a very rough draft of a new sub-section1 that could be inserted in section 148 to deal with the position of the accused on the subject:-

"(2) An accused person who offers himself as a witness in pursuance of section 315 of the Code of Criminal Procedure, 1973, shall not be asked, and if asked, shall not be compelled to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that with which he is then charged, or that he is of bad character, unless

(i) the proof that he has committed or been convicted of such other offence is relevant to a matter in issue; or

(ii) he has personally or by his advocate asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or

(iii) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, provided the leave of the court is obtained for asking the particular question; or

(iv) he has given evidence against any other person charged with the same offence."

1.Existing section 148 to be re-numbered as section 148(1).

VI. Defamation

83.25. Section 148-Suit for defamation-Scope of cross-examination as to plaintiff's character.-

We have, in our discussion of section 55, considered the question whether, when a person sues for damages for injury to reputation in respect of a particular facet of his character, other facets of his character should be allowed to be raised.1 We have recommended the insertion of a suitable proviso to the Explanation to section 55, with the object of limiting roving cross-examination under the head of facts which are relevant to character. The broad object of that amendment is to limit the inquiries into disposition or character by confining them to the aspect to which the libel relates. For ready reference, the amendment which has been recommended to section 55, may be reproduced:

"Section 55, Explanation (Proviso to be added.)

Provided that in a suit for damages for defamation for injury to the reputation of a person, no aspect of the character of that person, other than that to which the matter alleged to be defamatory relates, shall be relevant merely by virtue of this section, but nothing in this proviso shall exclude evidence relating to any fact which is admissible under any other provision of this Act."

1. See recommendation as to section 55.

83.26. This amendment, linked up with section 55, is naturally concerned with the scope of "relevancy" of facts showing character. The question now to be considered is, whether, in regard to section 148 also, it is desirable to give any indication of the approach to be adopted. Section 148 relates to the questions to be permitted in cross-examination. It must, of course, be noted that the subject-matter of section 148 is wider than that of section 55, in so far as section 148 covers questions intended to impeach the credit of the witness, even where they are not relevant to the issues. Section 55 is confined to facts relevant to the issues, but section 148 is not so confined. In this sense, their fields differ. Still, we are keen that the court should be vigilant, even when acting under section 148, in regard to the cross-examination of the plaintiff in a suit for defamation.

83.27. Recommendation as to cross-examination as to character of a person suing for defamation.-

Section 148 itself throws a duty on the court to determine the propriety of questions likely to injure character and sets out certain guidelines. It would not be inappropriate to draw the attention of the court more particularly to those guidelines in regard to libel suits. To achieve this object, we recommend the addition of an Explanation in section 148 as follows:-

"Section 148, Explanation to be added Where, in a suit for damages for defamation for injury to the reputation of a person, an aspect of the character of that person, other than that to which the matter alleged to be defamatory relates, is likely to be injured by a question under this section, the court shall have particular regard to the question whether, having regard to the considerations mentioned in this section, such question is proper."

"Section 148, Explanation to be added Where, in a suit for damages for defamation for injury to the reputation of a person, an aspect of the character of that person, other than that to which the matter alleged to be defamatory relates, is likely to be injured by a question under this section, the court shall have particular regard to the question whether, having regard to the considerations mentioned in this section, such question is proper."

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