Leading Questions under Section 146 of the Bharatiya Sakshya Adhiniyam, 2023: Definition, Prohibition and When They May Be Asked

A leading question tells the witness what answer is wanted. In examination-in-chief that is objectionable, because the party calling the witness would then be giving the evidence himself; in cross-examination it is indispensable, because the adverse party has no other way of confronting a witness with a version he will not volunteer. Section 146 consolidates into one provision what the Indian Evidence Act spread across three, and the consolidation is itself a renumbering trap.

1. The Provision

Section 146 consolidates Sections 141, 142 and 143 of the Indian Evidence Act — the definition, the prohibition and the permission — into a single provision.

2. What Makes a Question Leading

The statutory test is whether the question suggests the answer which the person putting it wishes or expects to receive. Two elements are contained in it.

Suggestion. The question must point to a particular answer. A question that leaves the witness free to answer as he will is not leading, however narrow its subject.

The questioner's wish or expectation. The suggestion must be of the answer the examiner wants. A question suggesting an answer unfavourable to the questioner is not, on the statutory definition, a leading question at all — which is part of why the prohibition operates only in chief and re-examination.

3. Why Leading Is Forbidden in Chief

The objection is not to the form of words but to who is supplying the evidence.

A party calls a witness because the witness knows something. If the examiner may state the facts and invite assent, the account placed before the court is the examiner's and not the witness's, and the value of calling him disappears. The witness's memory is never tested, his powers of observation are never displayed, and errors he would have made if left to himself are never exposed.

Three further reasons support the rule.

• The calling party's witness is ordinarily friendly, and a friendly witness will tend to accept what is suggested to him.
• The court cannot assess demeanour on a suggested answer. A witness who assents to a proposition has demonstrated nothing about his reliability.
• Coaching becomes undetectable. Where the account emerges from the witness unaided, inconsistencies and gaps appear; where it is put to him, they do not.

The same reasons apply to re-examination, which is also conducted by the calling party — and this is why sub-section (2) covers both.

4. The Prohibition Depends on Objection

This is the feature of sub-section (2) most often overlooked. Leading questions must not be asked in chief or re-examination if objected to by the adverse party.

Three consequences follow and they matter a great deal in practice.

The prohibition is not automatic. A leading question to which no objection is taken is not forbidden by the section, and the answer is on the record.

The objection must be taken at the time. An objection raised after the answer has been given achieves little, and one raised for the first time in argument achieves nothing. This is an ordinary application of the principle in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003) 8 SCC 752, that an objection to the mode of proof must be taken when the evidence is tendered or it is waived.

The weight may still be affected. Even where no objection was taken, a court assessing the evidence may notice that an account was led out of the witness rather than given by him, and may attach correspondingly less weight to it. The absence of objection removes the procedural bar, not the evidential consequence.

5. When Leading Questions May Be Asked

Four situations, and they are of two different kinds — one where the court must permit, and three where it may.

5.1 The mandatory category — sub-section (3)

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

The word in sub-section (3) is shall. Where a matter falls within one of the three categories, the court is not merely permitted but required to allow the question, and an objection to a genuinely introductory question is bad.

5.2 The discretionary category — sub-section (2)

Outside those three, leading questions may be asked in chief or re-examination only with the permission of the Court. The permission is discretionary, and the situations in which it is ordinarily given are recognisable.

• Where the witness is hostile or unwilling. Leave is granted under Section 157 to put questions which might be put in cross-examination, and leading is part of what that permits.
• Where the witness's memory is exhausted. Where he has plainly forgotten and cannot be brought to the point by open questions — though Section 162, refreshing memory from a contemporaneous writing, is usually the better route.
• Where the witness is of tender years, aged or infirm, and open questioning is producing nothing intelligible.
• Where identification or contradiction requires the matter to be put directly — as where a witness must be asked whether a particular person was present, the alternative being an unworkably vague enquiry.

5.3 Cross-examination — sub-section (4)

Leading questions may be asked in cross-examination, and no permission is required.

The reason is the mirror of the reason for the prohibition. The cross-examiner is dealing with a witness who is not his own and who will not volunteer anything helpful. Without the ability to put propositions directly, he could not confront the witness with a contrary version, could not test the account against the physical facts, and could not comply with the rule requiring him to put his case.

The permission is not unlimited. Cross-examination must still relate to relevant facts under Section 143, or to credit under Section 149; a question must not be asked without reasonable grounds under Section 152; indecent or scandalous questions may be forbidden under Section 154; and questions intended to insult or annoy shall be forbidden under Section 155.

6. The Position at a Glance

7. Objecting and Responding

7.1 Taking the objection

1. Object before the answer. The purpose is to prevent the suggestion reaching the witness, and an objection after the answer cannot achieve it.
2. State the ground shortly — that the question is leading and is objected to. The section is engaged by the objection itself.
3. Be selective. Objecting to every introductory question is bad practice and, where the matter is genuinely introductory, bad law under sub-section (3).
4. Where the answer has been given, ask for it to be recorded that the question was leading, so that the point survives for argument on weight.

7.2 Meeting the objection

1. Bring the question within sub-section (3) if it is introductory, undisputed or already proved — in which case the court must permit it.
2. Seek permission expressly where it is not, and give the reason — the witness's age, his condition, the exhaustion of his memory, or his unwillingness.
3. Consider Section 162 instead where the difficulty is memory rather than willingness; refreshing from a contemporaneous writing is cleaner than leading.
4. Consider Section 157 where the witness is resiling; leave to cross-examine one's own witness is a more complete solution than leave to lead.
5. Rephrase. The simplest response to a sustained objection is an open question, and a well-prepared examiner loses nothing by it.

8. The Position Stated Shortly

1. A leading question is one suggesting the answer the questioner wishes or expects to receive — Section 146(1).
2. Section 146 consolidates Sections 141, 142 and 143 of the earlier Act, and everything after it runs three numbers higher rather than five.
3. Leading is forbidden in chief and re-examination only if objected to, and the objection must be taken at the time.
4. The Court shall permit leading as to introductory, undisputed or already sufficiently proved matters — the word is mandatory.
5. Outside those categories, leading in chief requires the Court's permission, ordinarily given where the witness is unwilling, aged, infirm or of tender years.
6. Leading questions may be asked in cross-examination without leave, subject to relevance and to Sections 152, 154 and 155.
7. A yes-or-no question is not leading merely because the answer is short; what matters is whether the question supplies the content.
8. An unobjected leading question is not barred but may still weigh less, the account having been supplied rather than given.

9. Related Topics and Provisions