Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Leading Questions [Section 146]Introduction

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Leading Questions [Section 146]
Introduction

Leading questions play a crucial role in the examination of witnesses. While they can help clarify facts, they can also improperly influence a witness if not regulated. Section 146 of the Bharatiya Sakshya Adhiniyam, 2023 lays down clear rules about what leading questions are, when they are allowed, and when they are prohibited, ensuring fairness in judicial proceedings.
This section consolidates the law earlier found in Sections 141, 142, and 143 of the Indian Evidence Act, 1872 into a single, structured provision.

(i) What Are Leading Questions – Section 146(1)
A leading question is:
A question that suggests the answer which the person asking it wishes or expects to receive.
In simple words, it is a question that guides or hints the witness toward a particular answer, instead of allowing the witness to answer freely.
Examples

• “Did you see B hit A with a stick?”
• “You were present at the spot, weren’t you?”

These questions already assume certain facts and push the witness toward confirming them.

(ii) When Leading Questions Must Not Be Asked – Section 146(2)
Leading questions must not be asked, if objected to by the opposite party, during:

• Examination-in-chief, or
• Re-examination,

👉 unless the Court gives permission.
Reason

• Examination-in-chief is meant to bring out the witness’s own independent account.
• Leading questions at this stage may:
  • Influence the witness
  • Distort the truth
  • Reduce the reliability of evidence

(iii) Matters Regarding Which the Court May Permit Leading Questions – Section 146(3)
The Court shall permit leading questions in respect of matters that are:

1. Introductory
   • Name, address, age, occupation
2. Undisputed
   • Facts admitted by both parties
3. Already Sufficiently Proved
   • Facts established by earlier evidence

In such cases, leading questions do not cause prejudice and help save time.

(iv) Leading Questions in Cross-Examination – Section 146(4)
Leading questions may be freely asked in cross-examination.
Why?Cross-examination is designed to:

• Test truthfulness
• Expose inconsistencies
• Shake the credibility of the witness

Leading questions are considered a legitimate and effective tool for these purposes.

(a) Changes Introduced Under This Section

• Sections 141, 142, and 143 of the Indian Evidence Act, 1872 have been merged into Section 146 of the Bharatiya Sakshya Adhiniyam, 2023.
• The substance and wording remain the same, but the structure is simplified for clarity.

(b) Meaning of a Leading Question
A leading question:

• Indicates the fact that the examiner wants the witness to confirm
• Suggests the desired answer directly or indirectly
• Often contains the answer within the question itself

It is framed to confirm the examiner’s version, not the witness’s independent recollection.

(c) When Leading Questions May Be Asked – Exceptions
Although generally not allowed in examination-in-chief, leading questions may be permitted in the following situations:

1. Introductory matters
2. Undisputed facts
3. Matters already sufficiently proved
4. Identification of persons or things
5. To contradict another witness regarding expressions used
6. To refresh or assist the memory of the witness
7. Where the witness lacks understanding, such as:
   • Child witness
   • Illiterate witness
   • Old, infirm, or mentally weak witness
8. Where the witness is hostile, unwilling, or appears interested in the opposite party

In all such cases, permission and control lie with the Court.

(d) No Misleading Questions in Cross-Examination
​Even though leading questions are allowed in cross-examination, misleading questions are prohibited.
A misleading question:

• Assumes facts not yet proved
• Presumes admissions that the witness has not made

Illustration

• ❌ Improper: “How long have you been working as the plaintiff’s servant?”
  (Assumes the witness is already a servant)
• ✅ Proper: “Are you a servant of the plaintiff?”

If the opposite party objects, leading questions cannot be asked in examination-in-chief or re-examination unless the court overrules the objection.

(e) Judicial IllustrationIn Binapani v. Ravindra Nath:

• A husband denied allegations of cruelty.
• The cross-examiner asked: “Have you stopped beating your wife?”

The court held this question to be misleading, as it presumed guilt despite denial. Such questions are improper and unfair.

Critical Analysis
Advantages

• Prevents coaching of witnesses
• Ensures truthful and voluntary testimony
• Protects fairness in examination-in-chief
• Strengthens cross-examination as a truth-testing tool

Limitations

• Heavy dependence on judicial discretion
• Risk of misuse if objections are not raised
• Requires active judicial control

Conclusion
​Section 146 of the Bharatiya Sakshya Adhiniyam, 2023 provides a clear and balanced framework for the use of leading questions. While it restricts their use in examination-in-chief and re-examination to prevent undue influence, it permits them in cross-examination to effectively test credibility and truthfulness.
By combining clarity, judicial discretion, and safeguards against misuse, Section 146 ensures that leading questions serve the ends of justice rather than manipulation of evidence.