Supreme Court: Public prosecutor putting leading questions to its own witnesses will offend right to fair trial of accused

Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence 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 the prosecutor shall 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 unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is 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. {Para 11}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 326 of 1993 

Decided On: 27.04.1993

Varkey Joseph Vs. State of Kerala, 

Hon'ble Judges/Coram:

K. Ramaswamy and R.M. Sahai, JJ.

Author: K. Ramaswamy, J.

Citations: 1993 AIR 1892, 1993 SCR (3) 390, AIR 1993 SUPREME COURT 1892, 1994 AIR SCW 956, 1993 CRIAPPR(SC) 304, 1993 SCC(CRI) 1126, 1993 SC CRIR 587, 1993 (3) JT 421, 1993 (3) SCR 676, (1993) 1 LS 35, (1993) 3 CURCRIR 271, (1993) SC CR R 433, (1993) 2 CRIMES 449, (1994) 1 MADLW(CRI) 176, (1993) 2 ALLCRILR 344,MANU/SC/0295/1993

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What is basic concept of leading questions as per S 146 of Bharatiya Sakshya Adhiniyam? Explain this concept with examples

 The concept of leading questions is addressed in S 146 of Bharatiya Sakshya Adhiniyam. Here’s a detailed explanation of the concept, along with examples:

Definition and Legal Basis

Leading Question:

• A leading question is one that suggests the answer desired by the questioner, typically by putting words into the mouth of the witness.
• Section 146(1) of BSA defines leading questions as: "Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question."

• Leading questions are generally not allowed during the examination-in-chief (the initial questioning of a witness by the party who called the witness) or re-examination unless they relate to matters which are introductory or undisputed, or which have already been sufficiently proved.

• Leading questions are allowed during cross-examination (questioning of a witness by the opposing party).

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Notes on leading questions as per provisions of Indian Evidence Act

S. 141 of Indian Evidence Act:- Leading questions.—Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

In simpler terms, a leading question is one that prompts or guides the witness towards a particular response.

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

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

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Whether public prosecutor can be permitted to refresh memory of witness without declaring him hostile?

In light of the above referred legal position, when we consider the
deposition of complainant   Gurjibhai Isrambhai Nayak PW 8 recorded
vide Exh. 22, it is clear that the said witness, who is complainant, has
not supported the complaint. It is important to note that after recording
of paragraphs  Nos. 1 and 2 of the examination­in­chief, the learned
Additional Public Prosecutor had neither requested the Court to declare
the said witness as hostile one nor seek permission to cross­examine
the said witness. Instead of doing that, it appears from the evidence
which has been recorded vide paragraphs 3 and 4 of the examinationin­chief
that a leading question had been asked to refresh the memory
of the said complainant PW 8 and thereby a novel procedure has been
adopted   by   the   learned   Additional   Public   Prosecutor   which   was
permitted by the learned trial Judge which is against the provisions of
Indian Evidence Act, 1872. It is important to note that before recording
paragraph   Nos.   3   and   4   of   the   examination­in­chief   of   P.W.   No.8­
Gurjibhai Isrambhai Nayak at Exh. 25,  the learned trial Judge has not
put any note or remark to show as to for what reason learned Additional
Public Prosecutor was permitted to adopt said novel procedure. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 964 of 2016


MAHESHBHAI RATILAL BHIL
V
STATE OF GUJARAT

CORAM:  MR.JUSTICE G.B.SHAH
Date : 11 /08/2016
Citation: 2017 CRLJ 459

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Good legal article on leading question

http://www.legalservicesindia.com/article/article/leading-questions-462-1.html

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Whether public prosecutor can be permitted to ask leading question in examination in chief?

Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answer to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the Court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give, his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to 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 by answer merely "yes" or "no" but he shall be directed to give evidence 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 the prosecutor shall 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 unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and,obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity.
Supreme Court of India

Varkey Joseph vs State Of Kerala, Represented ... on 27 April, 1993

Equivalent citations: 1993 AIR 1892, 1993 SCR (3) 390

Bench: Ramaswamy, K.

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Whether prosecution can ask leading question without permission of court?

 One matter noticeable in the record of the proceedings before the Court of Sessions is the extent to which answers seem to have been elicited from prosecution witnesses by leading questions put to them by counsel for the Crown, and this appears to have been done notwithstanding the objection raised by counsel for the defence. As I have noticed a similar procedure in other cases, I think it right to draw attention to the law governing this matter. Section 142 of the Evidence Act provides that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the Court.

 It is the Court, and not counsel for the Crown, who can determine whether leading questions should be permitted, and the responsibility for that permission rests on the Court. Now, not only were objections made by the counsel at the time, but a petition of objection was filed, and, from the order on its back, it appears that no permission was given by the Court, though the witness "had to be pressed in regard to many points." 

Calcutta High Court

Barindra Kumar Ghose And Ors. vs Emperor on 23 November, 1909

Equivalent citations: (1910) ILR 37 Cal 467

Bench: L H Jenkins, Carnduff

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