Section 149 BSA: Questions lawful in cross-examination
Bharatiya Sakshya Adhiniyam, 2023
Section 149 BSA at a Glance
Section 149 BSA deals with questions lawful in cross-examination. It replaced Section 146 IEA on 1 July 2024.
Section 149 BSA Bare Act Text
149. Questions lawful in cross-examination
When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
(a) to test his veracity; or
(b) to discover who he is and what is his position in life; or
(c) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:
Provided that in a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.
Source: Section 149, Bharatiya Sakshya Adhiniyam, 2023
Section 149 BSA in Simple Words
Section 149 of the Bharatiya Sakshya Adhiniyam, 2023 sets out what extra questions a witness may be asked during cross-examination (questioning by the opposing side in court). These questions are allowed in addition to other questions referred to earlier in the Adhiniyam.
Under clauses (a), (b), and (c), a witness may be asked questions that tend to test veracity (truthfulness), or to find out who the witness is and what position in life the witness holds. A witness may also be asked questions that tend to shake credit (reliability as a witness) by harming the character of the witness.
Questions aimed at shaking credit are allowed even if the answer might directly or indirectly criminate (show involvement in a crime) the witness. Such questions are also allowed if the answer might directly or indirectly expose the witness to a penalty or a forfeiture (loss of property or rights as a punishment).
A proviso sets a bar in prosecutions under Bharatiya Nyaya Sanhita, 2023 Sections 64, 65, 66, 67, 68, 69, 70, and 71, or attempts to commit those offences. Where consent is an issue, no one may give evidence or cross-examine the victim about general immoral character or past sexual experience with anyone to prove consent or its quality.
When Section 149 BSA Applies
- Applies when a witness is cross-examined in court, in addition to other questions referred to earlier in the Adhiniyam.
- Under clause (a), allows questions that tend to test the veracity (truthfulness) of the witness.
- Under clause (b), allows questions that tend to find out who the witness is and the position in life of the witness.
- Under clause (c), allows questions that tend to shake the credit of the witness by harming character, even if answering might directly or indirectly criminate the witness or expose the witness to a penalty or a forfeiture.
Example of Section 149 BSA
When Section 149 BSA Does Not Apply
- In a prosecution for an offence, or an attempt to commit an offence, under Bharatiya Nyaya Sanhita, 2023 Sections 64, 65, 66, 67, 68, 69, 70, or 71 where consent is an issue, no one may give evidence or ask the victim in cross-examination about general immoral character or past sexual experience with anyone to prove consent or its quality.
Section 149 BSA in the IEA (Previous Law)
Section 149 BSA replaces Section 146 IEA from the old criminal code.
Section 146 of the Indian Evidence Act, 1872 became Section 149 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. The IPC sections listed were replaced by BNS sections 64 to 71. That list also takes in BNS section 69 (sexual intercourse by deceitful means), which has no IPC counterpart. Clauses are now lettered (a) to (c).
FAQs on Section 149 BSA
What is Section 149 BSA?▼
Section 149 of the Bharatiya Sakshya Adhiniyam, 2023 is the rule on what questions may be asked during the cross-examination of a witness. It permits questions to test veracity, find out identity and position in life, or shake credit by harming character, while barring questions or evidence about the general immoral character or past sexual experience of the victim to prove consent in specified sexual offence trials.
Can a witness be cross-examined under Section 149 BSA if the answer might expose the witness to a penalty or a forfeiture?▼
Yes. Under clause (c) of Section 149 BSA, a witness may be asked questions to shake credit by harming character even if the answer might directly or indirectly criminate the witness or expose the witness to a penalty or a forfeiture.
Does Section 149 BSA allow cross-examining a victim about past sexual experience to prove consent in a trial under Section 69 of the Bharatiya Nyaya Sanhita, 2023?▼
No. Under the proviso to Section 149 BSA, in a prosecution for an offence or attempted offence under Bharatiya Nyaya Sanhita, 2023 Sections 64, 65, 66, 67, 68, 69, 70, or 71 where consent is at issue, it is not permissible to give evidence or ask the victim cross-examination questions about general immoral character or past sexual experience with anyone to prove consent or its quality.
What is Section 149 BSA in IEA?▼
Section 146 IEA. Section 149 BSA replaced Section 146 IEA on 1 July 2024, changing clause numbers (1) to (3) into letters (a) to (c) and replacing the listed Indian Penal Code sections with Bharatiya Nyaya Sanhita, 2023 Sections 64 to 71, which also takes in Section 69 on sexual intercourse by deceitful means.
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Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·