Section 143: When Leading Questions May Be Asked

Overview

Section 143 of the Bhartiya Sakshya Bill, 2023, deals with ‘leading questions’ during witness examination. Generally, questions shouldn’t suggest the answer. However, this section clarifies *when* a lawyer *can* ask questions that do suggest the answer, particularly during cross-examination. It aims to balance fair questioning with preventing witnesses from simply being ‘led’ to a pre-determined testimony.

Key Principles / Ingredients

• Type of Evidence: This section applies primarily to oral evidence (testimony given by witnesses). While it doesn’t directly address documentary or electronic evidence, the principles of fair questioning are relevant when presenting such evidence through a witness.
• Conditions for Admissibility/Relevancy: Leading questions are generally *not* admissible during examination-in-chief (when you first call a witness) or re-examination (asking questions again after cross-examination) *unless* the court allows it. They *are* admissible during cross-examination (questioning the opposing party’s witness) as a right. The court’s permission for leading questions in examination-in-chief or re-examination is usually granted when dealing with a hostile witness, a child witness, or to clarify minor details.
• Burden of Proof Implications: This section doesn’t directly shift the burden of proof. However, skillful use of leading questions during cross-examination can challenge the witness’s testimony and potentially weaken the opposing party’s case, indirectly impacting how the burden of proof is met.

How Courts Use this Provision

Judges carefully monitor the questioning to ensure fairness. They will allow leading questions in cross-examination as a matter of course, recognizing the need to rigorously test the witness’s account. However, if a lawyer tries to ‘lead’ their own witness during examination-in-chief, the judge will likely object and disallow the question unless a valid reason (like a hostile witness) is presented. The court’s discretion is key – they balance the need for effective advocacy with the need for truthful and unbiased testimony.

Illustrations and Examples

• Example 1 – Simple Situation: Lawyer (cross-examining): “You were wearing glasses on the night of the incident, correct?” This is a leading question because it suggests the answer is ‘yes’. It’s permissible in cross-examination.
• Example 2 – Complex Situation: Lawyer (examination-in-chief): “Didn’t you see the red light?” This is a leading question. The judge might disallow it unless the witness has previously given conflicting testimony or is demonstrably hostile. However, if the witness is a young child, the judge might allow it to help the child understand and answer the question.

Important Provisos / Explanations

The section doesn’t have specific provisos or explanations attached. The key lies in the court’s discretion to allow leading questions in examination-in-chief or re-examination when it serves the interests of justice – for example, when dealing with vulnerable witnesses or clarifying minor details. The Bill emphasizes the court’s role in ensuring a fair trial.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the principles regarding leading questions from the Indian Evidence Act, 1872. There are no significant shifts in this specific provision. The focus remains on allowing leading questions in cross-examination and granting discretion to the court in other scenarios.

Key Takeaways

• Leading questions are generally allowed in cross-examination.
• They are generally not allowed in examination-in-chief or re-examination unless the court permits.
• The court has discretion to allow leading questions in specific circumstances (hostile witness, child witness, etc.).
• The goal is to balance fair questioning with obtaining truthful testimony.