Section 146 IEA: Questions lawful in cross-examination
Indian Evidence Act, 1872
Section 146 IEA at a Glance
Section 146 IEA deals with questions lawful in cross-examination. From 1 July 2024 it is replaced by Section 149 BSA.
Section 146 IEA Bare Act Text
146. 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—
(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) 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 376, section 376A, section 376AB section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860) 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 146, Indian Evidence Act, 1872
Section 146 IEA in Simple Words
Section 146 of the Indian Evidence Act, 1872 sets out what extra questions a witness could be asked during cross-examination (questioning by the opposing side in court). These questions were allowed in addition to other questions referred to earlier in the Act.
A witness could be asked questions to test veracity (truthfulness), or to find out who the witness was and what position in life the witness held. A witness could also be asked questions to shake credit (reliability as a witness) by harming the character of the witness.
Questions aimed at shaking credit were allowed even if the answer might directly or indirectly criminate (show involvement in a crime) the witness. Such questions were 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 set a bar in prosecutions under Indian Penal Code Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, and 376E, or attempts to commit them. Where consent was an issue, no one could 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 146 IEA Applies
- Applies when a witness is being cross-examined in court, in addition to other questions referred to earlier in the Act.
- Allows questions that tend to test the veracity (truthfulness) of the witness.
- Allows questions that tend to find out who the witness is and the position in life of the witness.
- 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 146 IEA
When Section 146 IEA Does Not Apply
- In a prosecution for an offence, or an attempt to commit an offence, under Indian Penal Code Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E 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 146 IEA in the BSA
Section 146 IEA is now covered under Section 149 BSA.
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).
View detailed comparison (IEA 146 vs BSA 149) →FAQs on Section 146 IEA
What is Section 146 IEA?▼
Section 146 of the Indian Evidence Act, 1872 is the rule on what questions are lawful during the cross-examination of a witness. It allows 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 asked a cross-examination question under Section 146 IEA that might criminate the witness?▼
Yes. Under Section 146 IEA, a witness may be asked a question 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.
Can the defence cross-examine a victim about past sexual experience to prove consent in a trial under Section 376 of the Indian Penal Code?▼
No. Under the proviso to Section 146 IEA, in a prosecution for an offence or attempted offence under Indian Penal Code Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E where consent is at issue, nobody may give evidence or cross-examine the victim about general immoral character or past sexual experience with anyone to prove consent or its quality.
What is Section 146 IEA in BSA?▼
Section 149 BSA. It replaced Section 146 IEA on 1 July 2024, lettering the clauses (a) to (c) and replacing the listed Indian Penal Code sections with Bharatiya Nyaya Sanhita, 2023 Sections 64 to 71, including Section 69 on sexual intercourse by deceitful means.
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Sources: Bare Act Text, Indian Evidence Act, 1872 ·