Section 142: When Leading Questions Must Not Be Asked

Overview

Section 142 of the Bhartiya Sakshya Bill, 2023, deals with ‘leading questions’ during witness testimony. Simply put, it restricts lawyers from asking questions that suggest the answer they want. The goal is to get a witness to tell their story freely, rather than being guided by the lawyer. However, the court can allow leading questions in specific situations.

Key Principles / Ingredients

• Type of Evidence: This section primarily applies to oral evidence (testimony given in court). While it doesn’t directly address documentary or electronic evidence, the principles of fair testimony apply to how witnesses explain such evidence.
• Conditions for Admissibility/Relevancy: Testimony obtained through improper leading questions (without court permission when required) may be deemed inadmissible – meaning the court won’t consider it when making a decision. Relevancy is affected because the answer isn’t a free and voluntary account from the witness.
• Burden of Proof Implications: This section doesn’t directly shift the burden of proof. However, if a witness’s testimony is excluded due to improper leading questions, it can impact the party who called that witness’s ability to meet their burden of proof.

How Courts Use this Provision

Judges actively monitor questioning to ensure lawyers aren’t using leading questions inappropriately. If a lawyer asks a leading question without permission, the opposing lawyer will usually object. The judge then decides whether to allow the question or exclude the answer. Courts are more lenient with leading questions when dealing with hostile witnesses or when establishing preliminary, undisputed facts.

Illustrations and Examples

• Example 1 – Simple Situation:

  Improper: Lawyer: “You saw the red car speeding, didn’t you?” (This suggests the answer.)

  Proper: Lawyer: “What did you observe about the car?” (Allows the witness to describe what they saw freely.)

• Example 2 – More Complex Situation:

  A witness is hesitant and appears confused. The lawyer asks: “Isn’t it true that you were standing near the shop at 10 PM on the night of the incident?” The court might allow this, even though it’s leading, because the witness seems unable to recall details clearly, and the question helps refresh their memory. The court will consider if the question is necessary to clarify the testimony.

Important Provisos / Explanations

Section 142 specifically allows leading questions when:

• The court deems it necessary.
• The matter is introductory (establishing basic facts).
• The matter is undisputed (everyone agrees on the fact).

There are no specific illustrations attached to this section within the Bill.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the core principles of Section 142 of the Indian Evidence Act, 1872, regarding leading questions. There aren’t significant shifts in the fundamental rule. The new Bill aims for clearer language and modern application but doesn’t fundamentally alter the prohibition on leading questions during examination-in-chief and re-examination.

Key Takeaways

• Leading questions suggest the answer.
• They are generally prohibited during initial questioning of a witness.
• The court can allow them for introductory or undisputed facts, or if necessary.
• Improperly obtained testimony through leading questions may be inadmissible.