A ‘leading question’ is one which suggests to the witness the answer which it is desired he should give. But, if it merely suggests a subject without suggesting an answer or a specific thing, it is not a leading question.
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Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading questions. Thus, the following are the instances of leading questions Is not your name so and so? Do you not reside in such and such place? Are you not in the service of such and such a person? Have you not lived so many years with him? Here, the question suggests to the witness the answer which he is to give, or puts into his mouth word which he is to echo back.
ADVERTISEMENTS:
Leading questions cannot ordinarily be asked in examination-in- chief or re-examination. The witness is presumed to be biased in favour of the party examining him and might thus be prompted. The reason for excluding leading questions is quite obvious; it would enable a party to prepare his story and evolve it in his very words from the mouth of his witness in Court.
It would tend to diminish chances of detection of a concocted story. If a witness is allowed to give his narrative in his own words, he is likely, if the story is made up, to leave some loop-holes, to which the cross-examiner will scarcely fail to direct his attack.
Leading questions can, only be asked when they refer to matters, which are (1) introductory; (2) undisputed; or (3) sufficiently proved. For, if such questions were not allowed, the examination would be most inconveniently protracted.
Leading questions can, however, be asked in cross-examination. This is so, because the very purpose of a cross-examination is to test the accuracy, credibility and general reliability of the witness. The learned author, Best gives two main reasons why leading questions are not allowed in examination-in-chief, but are to be freely allowed in cross- examination.
ADVERTISEMENTS:
Firstly, one can generally suppose that a witness in biased in favour of the party who brings him and is hostile to the opponent. Secondly, the party calling the witness has a distinct advantage, in that he knows before-hand what the witness will try to prove, and if he could ask leading questions to his own witness, he could extract from the witness only as such as would be favourable to him.
If the Court makes a general order that no leading questions would be allowed in cross-examination, such an order is illegal and vitiates the trial. (Sri L. P. v. Inspector General of Police, 1954 A.L.J. 316)
The Supreme Court has held that the prosecutor cannot put leading questions on a material part of the evidence which a witness intends to give against the accused. Such leading questions would offend the right of the accused to a fair trial, enshrined in Art. 21 of the Constitution of India. (Vaskey Joseph v. State of Kerala, 1993 Cri. L. J. 2010)