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to be at all sound. There is no express legislation, which cripples in the way indicated above the well-recognised right, which an accused person possesses of cross-examining a witness who deposes against him, and the decision is evidently against the principle inunciated in this section and sec. 33 ante. It has been held in the case of QueenEmpress v. Sagal Samba Sahay, I. L. R. 21 Cal. 642, that an accused person has the right to cross-examine witnesses for the prosecution after their examination at the judicial inquiry before the Magistrate previous to commitment. To deprive an accused person of this invaluable right on such grounds as are mentioned in the judgment under review would not be consonant with the just and equitable principles of our criminal jurisprudence. Before the passing of the Evidence Act, their Lordships of the Calcutta High Court, in the case of Meer Sujad Ali Khan, Nawab Toolfuka Dowla Bahadoor v. Lalla Kashi Nath Dass, 6 W. R. 181, said that the test for determining whether the depositions of witnesses, who are absent, or who have been examined in a former suit, can be received is whether the party against whom they are to be used had the power to crossexamine. If he could not have cross-examined, the deposition of the witness ought not to be admitted against him. The case under review would not stand the test.
Cross-examination of witnesses by the Court.-It is not the province of the Court to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions; and the Court should, as a general rule, leave the witnesses to the pleaders to be dealt with, as laid down in this section-In the matter of Noor Bux Kazi, I. L. R. 6 Cal. 279. In this case their Lordships (Garth C. J. and Maclean J.) remarked: "We find that, on the examination-in-chief being finished, the Judge questioned almost all the winesses at considerable length upon the very points to which he must have known that the cross-examination would certainly and properly be directed, the result of this, of course, was to render the cross-examination by the prisoner's pleaders to a great extent ineffective, by assisting the witnesses to explain away in anticipation the points which might have afforded proper ground for useful crossexamination."
Object of re-examination.—" The proper object of re-examination is to draw forth an explanation of the meaning of the expression used by the witness on cross-examination; and also of the motive or provocation which induced him to use them; to clear up evident misconceptions and errors committed by him while under examination; and to explain new facts which have come out on cross-examination."-Field, 5th Ed., 631.
139. A person summoned to produce a document does not become a witness by the
Cross-exam ination of person
called to produce
mere fact that he produces it, and cannot be cross-examined unless and
until he is called as a witness.
The rule contained in this section is in accordance with the prac tice under the English law. The section applies equally to civil and criminal proceedings. A witness summoned to produce a document need not attend personally. Vide sec. 164 of the Civil Procedure
140. Witnesses to character may be cross-examined and re-examined.
The practice in England is not to cross-examine witnesses to the character of parties, unless there is some specific charge on which to found a cross-examination, or at least without giving notice of an intention to cross-examine them; but there is no rule which forbids the cross-examination of such witnesses.
141. Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.
Questions suggesting disputed facts as to which the witness is to testify would come under the category of leading questions. Vide Step. Dig., Art. 128. A question may be leading, though made in the common alternative form "whether or not," &c.
Test of a Leading Question.-It is sometimes said that the test of a leading question is, whether an answer to it by 'yes' or 'no' would be conclusive upon the matter in issue; but although all such questions undoubtedly come within the rule, it is by no means limited to them. It should never be forgotten that 'leading' is a relative, not an absolute term. There is no such thing as leading in the abstract-for the identical form of question, which would be leading of the grossest kind in one case or state of facts, might be not only unobjectionable, but the very fittest mode of interrogation in another.*
Question when objectionable as Leading.-A question is objectionable as leading when it suggests the answer, not when it merely
* Vide Best, 8th Ed., 591, 592.
directs the attention of the witness to the subject respecting which he is questioned. In order to object properly or successfully to questions as leading an accurate idea of what a leading question is, should be formed. In the case of Nicholls v. Dowding and Kemp, 1 Starkies' Nisi Prius Rep., 81, Lord Ellenborough observed: "I wish that objections to questions, as leading, might be a little better considered before they are made. It is necessary to a certain extent to lead the mind of the witness to the subject of inquiry. If questions be asked to which the answer 'yes' or 'no' would be conclusive, they would certainly be objectionable; but, in general, no objections are more frivolous than those which are made to questions as frivolous."
not be asked.
142. Leading questions must not, if objected to When they must by the adverse party, be asked in an examination-in-chief, 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.
Purport of the Section.-"As soon as the witness has been duly sworn, it is the province of the party, by whom he is produced to éxamine him. This is called his direct examination, or his examination-in-chief; and in this examination, leading questions, that is questions which suggest to the witness the answer desired, or which, embodying a material fact, admit of a conclusive answer by a simple negative or affirmative, are not, in general, allowed to be put. Still, this rule must be understood in a reasonable sense; for, if it were not allowed to approach the points at issue by such questions, the examination would be most inconveniently protracted. To abridge the proceedings, and bring the witness, as soon as possible, to the material points on which he is to speak, the counsel may lead him on to that length, and may recapitulate to him the acknowledged facts of the case, which have been already established. The rule, therefore, is not applied to that part of the examination, which is merely introductory of that which is material. With respect even to material points, the Judge, in his discretion, will sometimes allow leading questions to be put in a direct examination; as, for instance, where the witness, by his conduct in the box, obviously appears to be hostile to the party, producing him, or interested for the other party, or unwilling to give evidence. Indeed, if the witness stand in a situation, which, of necessity, makes him adverse to the party calling him, as, if he be
a defendant whom the plaintiff wishes to examine, leading questions, it seems, be asked him as a matter of right."-Taylor, 6th Ed., 1213. Reason of the Rule.-"The chief rule of practice relative to the interrogation of witnesses is that which prohibits leading questions, i.e., questions which directly or indirectly suggest to the witness the answer he is to give. The rule is, that on material points a party must not lead his own witnesses, but may lead those of his adversary; in other words, that leading questions are allowed in cross-examination, but not in examination-in-chief. This seems based on two reasons: First, and principally, on the supposition that the witness has a bias in favour of the party bringing him forward, and hostile to his opponent. Secondly, that the party calling a witness has an advantage over his adversary, in knowing beforehand what the witness will prove, or at least is expected to prove; and that, consequently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favourable to his side, or even put a fal se gloss upon the whole.”*
Discretionary power of the Judge to relax the general Rule.— The Judge has a discretionary power of relaxing the general rule, whenever, and under whatever circumstances, and to whatever extent, he may think fit, though the power should only be exercised so far as the purposes of justice plainly require. It is entirely a question for the presiding Judge to decide whether or not the examination is being conducted fairly, and to allow or disallow leading questions as the case may be.
Exceptions to the Rule against Leading.-The section distinctly lays it down that the Court shall permit leading questions as to matters which are (1) introductory, (2) undisputed, or (3) sufficiently proved. (4) If the witness is hostile to the party calling him, the Judge may, in his discretion, allow such party to lead the witness. (Vide section 154 post). The English text-writers mention the following cases in which leading questions have usually been allowed in examination-in-chief.
(A). In cases of want of recollection.-1. A witness will occasionally be allowed to be led, where an omission in his testimony is evidently caused by want of recollection, which a suggestion may assist.
2. When a witness stated that he could not recollect the names of a firm, so as to repeat them without suggestion, but thought that
* Vide Best, 8th Ed., 591.
he might possibly recognise them, if suggested, this was permitted to be done.*
3. Where, from the nature of the case, the mind of the witness cannot be directed to the subject of inquiry without a particular specification of it, as, where he is called to contradict another respecting the contents of a lost letter, and cannot, off-hand, recollect all its contents, the particular passage may be suggested to him, at least after his unaided memory has been exhausted.*
(B). For purposes of Identification.-For the purpose of identifying persons or things, the attention of the witness may be directly pointed to them. Thus, it would be perfectly regular to point to the accused, and ask a witness if that is the person to whom his evidence relates; but in a criminal trial, where the question turns on identity, the safest course would be to tell the witness to look round the Court and say if he there saw the person of whom he was speaking, because, if the witness can, unassisted, single out the accused, his testimony will have more weight.
(C). For purposes of Contradiction.-Where one witness is called to contradict another as to expressions used by the latter, but which he denies having used, counsel are permitted to ask directly: Did the other witness use such and such expressions? The object of relaxing the general rule being simply to exclude the mind of the other parts of the conversation, which would not be admissible.
(D). To witness of tender years.-The Court will sometimes allow a pointed or leading question to be put to a witness of tender years, whose attention cannot otherwise be called to the matter under investigation.
When they may be asked.
143. Leading questions may be asked in cross-examination.
Leading Questions in Cross-examination.-(a). The Judge may not stop leading questions being put in cross-examination to a witness who shows an obvious bias against the party who calls him, and in favour of the cross-examiner; but he is at liberty to intimate that, on the circumstances of the case, the witness should be left to tell his own story, and if this intimation is not complied with, to take it into account in estimating the value of the evidence. "If the witness should display a zeal against the party cross-examining him, great latitude with regard to leading questions may, with propriety, be admitted. But if, on the other hand, he betrays a desire
* Vide Taylor, 6th Ed., 1214.