Leading Questions (s. 146) — BSA (Law of Evidence) Notes

Leading Questions (s. 146)

Ask a friendly witness, “The car was red, wasn’t it?” and you have not drawn out his memory — you have fed him yours. That is a leading question: it carries its own answer inside it. The law lets you do this when you are testing an opponent’s witness, but forbids it when you are examining your own, because a witness on your side will happily nod along to whatever you suggest. The whole topic is one definition and two rules about when you may lead.

A. What is a leading question?

Under s. 146(1) [IEA s. 141], a leading question is any question suggesting the answer which the person putting it wishes or expects to receive. In plain terms, the question hands the witness the answer and asks him only to agree. “Did you see the accused, tall and wearing a red shirt, run from the shop?” is leading; “What did you see?” is not.

Compare the same fact asked two ways:

Leading: “You saw A stab B with a knife at 9 pm, didn’t you?” (the answer is planted in the question).
Non-leading: “What did you see, and when?” (the witness supplies the facts himself).

B. When leading questions must NOT be asked (s. 146(2))

Leading questions must not, if objected to by the adverse party, be asked in examination-in-chief or in re-examination. The reason is obvious: in those stages you are questioning your own (friendly) witness, and letting you lead would mean you, not the witness, are giving the evidence. Note the trigger — the bar operates if objected to; if the opponent does not object, a leading question in chief may pass.

C. When leading questions MAY be asked

In cross-examination — always (s. 146(4)). Leading questions may freely be asked in cross-examination. The witness belongs to the other side and has no incentive to agree with you, so the danger of “feeding” the answer disappears.
With the court’s permission, in chief/re-examination, on three kinds of matter (s. 146(3)). The court shall permit leading questions as to matters which are (i) introductory, (ii) undisputed, or (iii) already sufficiently proved in the court’s opinion. There is no point making a witness laboriously establish his own name, address and occupation — those may be led to save time.

💡 EXAM TIP — never answer “leading questions are not allowed” flatly

The trap. Candidates write “leading questions are not allowed” and stop, which is wrong — they are freely allowed in cross-examination and permitted on introductory matter in chief.

What to write. State the rule as a matched pair: “Leading questions are barred in examination-in-chief and re-examination if objected to (s. 146(2)), but are always allowed in cross-examination (s. 146(4)), and may be permitted in chief on introductory, undisputed or already-proved matters (s. 146(3)).” Then give one leading and one non-leading version of the same question.

Why it scores. It shows you know the rule is about which stage you are in, not a blanket prohibition — and the paired illustration proves you can apply it.

🧩 WORKED EXAMPLE — leading in chief

Facts. In examination-in-chief, the prosecutor asks his own witness: “You saw the accused shoot the deceased at 8 pm, didn’t you?” The defence objects.

Rule. A leading question suggests its answer (s. 146(1)); it must not be asked in examination-in-chief if objected to (s. 146(2)), unless the matter is introductory, undisputed or already proved (s. 146(3)).

Apply. The question suggests the very answer — that the accused shot the deceased at 8 pm — on a disputed, central fact, in chief. The defence has objected. It is not introductory or undisputed.

Conclusion. The objection must be upheld; the prosecutor must re-frame it non-leadingly (“What did you see, and when?”). Had he been cross-examining a defence witness, the same question would be perfectly proper.

Variant. Asking the witness his name and occupation by a leading question would be allowed under s. 146(3), being introductory.

Section 146, BSA 2023: “(1) Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. (2) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. (3) The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. (4) Leading questions may be asked in cross-examination.”

In Simple Terms: A leading question is one that tells the witness the answer you want. You may not lead your own witness on disputed matters (if the other side objects), because then you would be giving the evidence for him. You may lead freely when cross-examining the other side’s witness, and you may lead on trivial introductory matters to save time.

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    Q2 -->|"No — and objected to"| BAR["NOT allowed (s. 146(2))"]:::diamond
    Q1 -->|"Cross-examination"| OK2["Always allowed (s. 146(4))"]:::leaf
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Case Laws

Varkey Joseph vs State of Kerala (1993) — the Supreme Court disapproved of the public prosecutor putting leading questions to establish crucial facts against the accused; answers extracted by leading questions in examination-in-chief carry little value.
Vinod Kumar vs State of Punjab (2015) — cautioned trial courts against allowing evidence to be led improperly and stressed the orderly examination of witnesses; a witness must depose from his own knowledge, not merely assent to the examiner’s suggestions.

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