Report No. 185
Section 140
This Section refers to evidence of a witness as to 'character'. It reads as follows:
"140. Witnesses to character may be cross-examined and reexamined."
The law in this respect is different from the law in England where, the practice is not to cross-examine, except under special circumstances. Section 140 is intended to say that in India, such a practice need not always be followed. The Section uses the word 'may'.
In this connection, ss. 52 to 55 which deal with relevance of 'character' may be noticed and to the recommendations made in regard thereto.
We agree with para 78.4 of the 69th Report that no amendments are necessary to Section 140.
Secs. 141, 142 & 143:
These Sections deal with 'leading questions'.
(a) Section 141:
This Section reads as follows:
"141. Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question."
We are of the view that no amendment is necessary in Section 141.
(b) Section 142
Section 142 refers to 'when they must not be asked'. It reads as follows:
"142. Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in 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."
We are of the view that no amendment is necessary in Section 142.
(c) Section 143
Section 143 refers to 'when they (leading questions) may be asked'. It reads:
"143. Leading questions may be asked in cross-examination."
It will be seen that leading questions 'shall' not be objected to if they are introductory or undisputed or which, in the Court's opinion, have been already sufficiently proved. But often leading questions, whether in chief examination or re-examination require permission of Court. But so far as cross-examination is concerned, they can be asked without Court's permission.
In the 69th Report, there is discussion as to whether in Section 143, there should be some provision to control the leading questions that can be put in cross-examination. Reference was made to the position in USA (see para 79.13) that the Court may forbid leading questions in cross-examination, where the witness is biased in favour of the cross-examination and would be susceptible to the influence of questions that suggested the desired answer.
Such a provision was also introduced by way of a separate clause in Section 143, in Ceylon.
The Commission then felt that on the same lines as in US and Ceylon, a proviso be added in Section 143 but on the ground that one of the Members had some reservations, no recommendation was made.
In this context, we may refer to the fact that Phipson, in earlier editions advocated that the right to put leading questions in crossexamination must be controlled but has given up that view in the latest edition. He says (Phipson, Evidence, 15th Ed, 1999, para 11.18):
"Though leading questions may be put in cross-examination, whether the witness is favourable to the cross-examiner or not, yet where a desire to serve the interrogator is betrayed, it may lessen the value of the evidence to put the very words into the mouth of the witness which he is expected to echo back. It was stated in previous editions that the latter course was certainly improper, but it would not now be regarded as objectionable."
We, therefore, do not propose any amendments to secs. 141, 142 and 143 and leave them as they are.
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