When can leading questions not be asked? Refer to relevant provisions.

Question: When can leading questions not be asked? Refer to relevant provisions. [W.B.J.S. 1992, HR.J.S. 1998]

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Answer

Section 142—When they must not be asked.—Leading questions must not, if objected by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

Section 142 lays down that leading questions should not be put in examination-in-chief or re-examination if they are objected to. The Court may permit leading questions to draw the attention of the witness which cannot otherwise be called to matter under inquiry, trial or investigation. The witness must account for what he himself had seen.

Exceptions to this rule.—The section provides exceptions to the general rule stated above. Leading questions may be put in examination-in-chief or reexamination by the order of the Court:

1. as to matters which are introductory;
2. which are undisputed; or
3. which in the opinion of the Court have already been proved.

Besides these exceptions under Section 154, a Court can allow a party examining his own witness to put leading questions by way of cross-examination.

It should be borne in mind that if the opposite side makes any objection, leading questions may not be put in examination-in-chief or re-examination but such questions may be put in examination-in-chief or reexamination if the Court overrules the objection.

There is no legal hurdle in putting leading questions during examination-in-chief, without permission of the Court, if their opposite side does not object to it. Need to obtain the permission of the Court to put leading questions would arise only in the contingency where the opposite side takes an objection.

Even if the opposite side objects, the Court has wide discretion in allowing leading questions to be put. The second paragraph to Section 142 of the Act shows that the Court has no discretion to disallow a leading question if it relates to undisputed matters or introductory matters or matters already proved.

The discretion to allow or disallow a leading question can be exercised by the Court only when such leading question relates to matters other than those enumerated above as was observed in State of Kerala v. Vijayan alias Rajan. (1992) 1 KLT 878.

The Hon’ble SC has observed in the case of Varkey Joseph v. State of Kerala, AIR 1993 SC 1892 as under: “The prosecution cannot put leading questions on the material part of the evidence which the witness intends to give against the accused. It would be a method of eliciting evidence from the witness which is desired by the prosecutor.

Such leading questions offend the right of the accused to a fair trial enshrined in Article 21 of the Constitution. It is not a curable irregularity.”

In this case, the court said, section 142 does not empower the prosecutor to put leading questions on the material part of the evidence which the witness intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner to which the witness answer merely “yes” or “no”; but he shall be directed to give evidence of the facts which he witnessed.

The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor shall the prosecutor put into witness’s mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give.

The counsel must leave the witness to tell the unvarnished tale of this own account. In the instant case, the prosecutor led the witnesses to what he intended that they should say on the material part of the prosecution case to prove against the appellant. This was illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Article 21 of the Constitution. It is not a curable irregularity.

Further, in case of Madan Lal v. State of Rajasthan, 2012 Cr LJ 1430 (Raj.) wherein a criminal trial, leading questions were permitted to be asked to a prosecution witness in examination-in-chief in the absence of defence counsel. It was held that asking leading questions is not only against the tenor of section 142 of the Evidence Act but also violates the right of an accused to a fair trial when such leading questions are permitted to be asked in the absence of defence counsel. Such conduct of trial gives accused persons, a reasonable cause for their apprehension that justice is not being done to them.

Thus, Leading questions cannot ordinarily be asked in examination-in-chief or re-examination. The witness is presumed to be biased in favour of the party examining him and might thus be prompted.

The reason for excluding leading questions is quite obvious: it would enable a party to prepare his story and evolve it in his very words from the mouth of his witnesses in court. It would tend to diminish the chances of detection of a concocted story.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
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