Report No. 69
79.11. Leading questions in cross-examination of favourable witness.-
So much as regards the present law. Administered wisely, it will not, in general, lead to injustice: but there is one lacuna in section 143 which must now be discussed. There is a categorical provision in that section to the effect that leading questions may be asked in cross-examination. This provision may be based on the assumption that a witness under cross-examination is not favourable to the party cross-examining. In a broad and general way, this, may be true. There must, however, be cases where this assumption is not true, and this suggests the query whether this rule should be allowed to retain its present unrestricted scope.
Although some commentators seem to be of the view that the rule is, even now, not unrestricted in its scope, the text of the section does not make any such exception. If an exception is to be recognised as a matter of policy, it would be better to provide for it expressly in the section. The question to which we address ourselves is whether such a restriction should be imposed.
It will be noted that we are not concerned, in dealing with this question, with the right of a party calling a witness to cross-examine that witness, in the situation where a witness is declared to be "hostile" to use an expression in common use though not sanctioned by legislative usage.1 We are concerned with the question whether there is need for a restriction on the right of the opposite party. The precise question is-should the court have a power to restrain a party cross-examining a witness who shows that he is biased in favour of the cross-examining party, from putting leading questions?
Prima facie, it would appear that in such cases the court should have a discretion to forbid leading questions, in view of the bias of the witness. Without some such restriction, the cross-examiner would be able to extract from the witness that version of the facts which the cross-examiner desires to secure. Though ostensibly "receiving" the answer, the cross-examiner gives the answer Should a process be allowed where a witness too willing to help the party cross-examining is encouraged to do so?
1. Section 154.
79.12. Provisions in California.-
We did consider this approach worth serious consideration. In this connection, attention was drawn to the California Evidence Code1 which has following provisions as to leading questions:
"Section 764. 4 'leading question' is a question that suggests to the witness the answer that the examining party desires.
Section 767. Leading questions.-Except under special circumstances where the interests of justice otherwise require:
(a) A leading question may not be asked of a witness on direct or redirect examination.
(b) A leading question may be asked of a witness on cross-examination or re-cross-examination."
It may be pointed out that clause (b) of section 767 of the California Evidence Code, quoted above, is also subject to the excepting words contained in the opening paragraph of the section.
1. Sections 764 and 767, California Evidence Code.
79.13. In the U.S.A.1, the court may forbid the asking of leading questions in cross-examination, where the witness is biased in favour of the cross-examiner and would be unduly susceptible to the influence of questions that suggested the desired answer.
1. Wigmore Evidence, section 773 (3d Edn. 1940), cited in Louise!! Principles of Evidence and Proof, (1972), p. 393.
79.14. Provision in Ceylon.-
In this connection, it is also of interest to note revised section 143 of the Ceylon Evidence Ordiriance1-
"143. (1) Leading questions may be asked in cross-examination, subject to the following qualifications:
(a) the question must not put into the mouth of the witness the very words which he is to echo back again; and
(b) the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.
(2) The court in its discretion may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party."
1. See Sarkar on Evidence.
79.15. Suggestion considered.-
On a consideration of the merits of the matter, and in order to prevent abuse of cross-examination, a suggestion was made to its that section 143 should be revised by adding a proviso empowering the court to prohibit a leading question to a biased witness or in a misleading form. The precise suggestion was to revise section 143 as under:-
"143. Leading questions may be asked in cross-examination:
Provided that the court may prohibit a leading question from being put to a witness-
"(a) if the witness shows a strong interest or bias in favour of the party cross-examining the witness; or
(b) the particular question is objectionable, as likely to mislead."
One of us,1 however, does not consider the suggested amendment necessary, and we are not inclined to recommend the suggested amendment in the absence of unanimous agreement.
1. Shri Dhavan.