Permissible And Impermissible Questions During Examination Of Witness
'In an ordinary proceeding to establish the facts stated by the parties of the
concerned case, evidence is one of the most essential aspects. For evidence to
be admissible, it must be accurate and relevant to the facts of the case. One of
the most important types of evidence is statements from the witness, as a
witness is a person who has observed all the circumstances and can orally state
whatever he has observed. The statements are reliable due to the presence of the
witness at the place where the crime occurred. It must be by Section 51, as the
admissibility of evidence is only credible if it is linked with a relevant fact
in the issue.2
The procedure of examining the witness is established under Section 135-165 of Chapter X3 and is referred for criminal and civil litigations. Examination of the witness is an important process as it helps establish a link between the witness's observation and the fact in issue by asking them a set of questions that may be necessary and relevant to the subject matter.
Not only does it help to establish the court to decide the matter before them but it also segregates the information that may prima facie appear to be important but are the opinions of the witness and not testimonies on which guilt can be established. There are three types of examinations which can take place such as "Examination in Chief"," Cross Examination" and "Re-examination", however all of them have different intricacies which they sought to satisfy in a case.
During the different type of examinations, the counsel may ask questions which may imply the answers to themselves are called as leading questions and the act attempts to certain the circumstances where such questions can be asked.
In this research paper, we aim to understand the different types of examinations and the types of questions which are permitted to be asked by the court in accordance with the statutory provisions and precedents
Analysis
It is a must under the proceeding for the witness to answer all the relevant questions which may be presented to them and at the same time, it puts the court under the obligation that no counsel should be allowed to ask any question which is not relevant. Whatever the witness answers, must be recorded as testimonies and the segment of putting questions to the witness is known as "Examination of Witness". There are typically three ways in which the witness can be interrogated and all of them are covered u/s 137.4 Following are the three types of examination:
It must be noted that if the court is not satisfied with the testimony given under the Examination-in-chief, cross-examination is unnecessary. This was held in the case of "Ghulam Rasool Khan V Wali Khan."6
Permissible Questions
There are questions that find legal backing in the legislation in order to extract the truth from the witness. Over time, it has been observed that the court, while deciding the matters, has also thrown light on such questions in order to further elaborate on which questions qualify to be lawful in order to verify the testimony of the witness.
One of the important permissible questions of such examinations is the "leading question," which sometimes becomes the sole extractor of truth and further helps the court to evaluate whether such testimonies can be relied upon. Defined u/s 141 can be inferred as the questions that suggest the answers within themselves and in whose presence the Witness may prompt to answer. This is necessary to evaluate the evidentiary value of such testimonies as the opposition party can ask such questions, which may help get answers according to their desires.
These can only be put up as questions by the opposition party according to s.1427 and must have regard to the following essentials, which makes such a question - a leading question.8
u/s 146,10 the power is given to the adverse party to ask questions during the cross-examination, which may be used to verify the reliability of the witness by asking him such questions whose answers may tend to injure his own character but may prove his accuracy. Nevertheless, such answers can also make him liable for fine or punishment. This also gives the bench insights into the identity of the witness and may even demonstrate what stage he may be at in life.
In the case of "Rajinder Pershad v Darshana Devi,"11 it was held that a witness must be given an opportunity to explain himself for the part of his testimony that may be considered as "untrue" during the cross-examination. This is necessary as it not only gives the court a clearer picture but also gives a right to the witness to clarify his statements, which may be of importance but earlier quashed by the defence on the basis that they may be false.
Another important aspect is to refrain from questions that do not have any basis in pleadings. It was held in the case of "Deb Naryan Halder v Anushree Halder,"12 which was a matter pertaining to maintenance, and it was later revealed that a few questions were also related to another lady who was not a party. This was unnecessary for the proceedings as no complaint was filed against such facts, which makes such questions unlawful for the proceeding.
Impressible Questions
In order to prevent any harm to the witness's reputation and encourage the adverse party to ask only questions that are relevant to the matter, the legislation has provided certain kinds of questions that are directly impressible to be asked during the litigation. This not only safeguards the reputation of the witness but also saves the court time.
First and foremost, u/s 14713, the witness cannot be obligated to answer any irrelevant questions to the proceedings as it does not have relevancy and rather deviates the focus of the court from the fact in issue.
Section 149 14 attempts to safeguard the reputation of the witness and parties involved by making sure that no questions are asked without a reasonable ground. This not only prevents from drawing illogical inferences from witness's testimony but also prevents any questions which may be termed as unreasonable.
Nevertheless, it does not bar the adverse party to ask such questions if they are related to the subject matter. To ask such questions, there must be a reasonable ground such as instructions by an attorney or some logical basis which demonstrates an underlying reason.
For illustration we may refer to the case of "Rem Singh v State of M, P"15 . In this case, the four accused were tried before the court for murder of the Rem Singh. The witness in the case observed No.2 dealing an axe blow on the deceased head and No.1 attacked him with sticks. According to the statements of the witness, there is no reasonable ground for referring No.1, as the murder as the common object was not murder him.
Another set of questions which are not permitted are of "indecent" nature. u/s 151, The court may forbid such questions however can allow them only if they relate to the fact in issue. Only if they are necessary to be known, the judge may permit the opposition to ask such questions.
There can be questions in the matters of sexual offences and matrimonial disputes which may directly appear to be indecent and it is the obligation of the court to thoroughly confirm the grounds of such questions before permitting them to be asked. Such intention of not permitting such questions can be clearly observed in the case of "State of U.P v Raghubir Singh" 16 where
the court strictly prohibited any indecent remarks on witness who was the mother of the deceased in the matter of kidnapping and murder.
Lastly, the court also prohibits the use of any questions which may directly be used as an insult or cause annoyance for the witness. This is covered under section 15217 and it can be inferred that the court has to ascertain that no questions are asked which negatively impacts the reputation of the witness as if this is not safeguarded, many witnesses may not turn up only in the apprehension of being insulted in a court of a law which eventually become a huge problem for meeting the ends of justice. In the case of "Bharti Yadav v State of U.P."18 The court laid emphasis on the protection of the witness and the victim from any questions which may cause annoyance or insult to them. Further, it also held that if such questions are necessary, there can be camera trials.
Conclusion
Since pre-historic times, oral testimonies have been a crucial part of the proceedings. They are of utmost importance and must be dealt with a suitable procedure in order to extract the truth from the observations of a witness.
In the ordinary proceedings of the court, the main essence of any evidence is to be relevant for the fact in issue and at the same time be accurate and has the grounds on which a court can rely upon. One of the most reliable forms of evidence is the testimony of the witness as he is a person who has observed the crime. In order to extract information, examination of the witness is conducted. There are three types of examinations which can be conducted. The order of such examination is mentioned u/s 138 and has to be strictly followed.
While these examinations are merely an attempt of the testing the reliability of the witness by interrogating him. It is the duty of the Judiciary to distinguish between which questions can be asked and which cannot be in order to maintain its focus on the matter and avoid any insult or annoyance of the witness which are directly helping the court to meet the ends of justice.
Nevertheless, there are provisions which may permit the parties to ask such questions to the witness which may ordinarily may not be able to, it is the duty of judiciary to evaluate the motive behind such question and should allow only such questions which can be the guiding lights towards the truth.
Bibliography
Table of Cases
The procedure of examining the witness is established under Section 135-165 of Chapter X3 and is referred for criminal and civil litigations. Examination of the witness is an important process as it helps establish a link between the witness's observation and the fact in issue by asking them a set of questions that may be necessary and relevant to the subject matter.
Not only does it help to establish the court to decide the matter before them but it also segregates the information that may prima facie appear to be important but are the opinions of the witness and not testimonies on which guilt can be established. There are three types of examinations which can take place such as "Examination in Chief"," Cross Examination" and "Re-examination", however all of them have different intricacies which they sought to satisfy in a case.
During the different type of examinations, the counsel may ask questions which may imply the answers to themselves are called as leading questions and the act attempts to certain the circumstances where such questions can be asked.
In this research paper, we aim to understand the different types of examinations and the types of questions which are permitted to be asked by the court in accordance with the statutory provisions and precedents
Analysis
It is a must under the proceeding for the witness to answer all the relevant questions which may be presented to them and at the same time, it puts the court under the obligation that no counsel should be allowed to ask any question which is not relevant. Whatever the witness answers, must be recorded as testimonies and the segment of putting questions to the witness is known as "Examination of Witness". There are typically three ways in which the witness can be interrogated and all of them are covered u/s 137.4 Following are the three types of examination:
- Examination-in-Chief: Whenever there is an examination of a witness by the party who called them on their behalf, such examination is called "Examination-in-chief."
- Cross-Examination: If the opposition party wishes to question the witness after the Examination-in-chief, they are permitted to do so and can further question the witness about the facts not put up by the party who called them. This examination is called "Cross-Examination".
- Re-Examination: If there is a need for re-examining by the party in whose favour the witness had originally been summoned to the proceedings, the party can urge the court to permit them for re-examination u/s 137. Such examination is called a "re-examination".
It must be noted that if the court is not satisfied with the testimony given under the Examination-in-chief, cross-examination is unnecessary. This was held in the case of "Ghulam Rasool Khan V Wali Khan."6
Permissible Questions
There are questions that find legal backing in the legislation in order to extract the truth from the witness. Over time, it has been observed that the court, while deciding the matters, has also thrown light on such questions in order to further elaborate on which questions qualify to be lawful in order to verify the testimony of the witness.
One of the important permissible questions of such examinations is the "leading question," which sometimes becomes the sole extractor of truth and further helps the court to evaluate whether such testimonies can be relied upon. Defined u/s 141 can be inferred as the questions that suggest the answers within themselves and in whose presence the Witness may prompt to answer. This is necessary to evaluate the evidentiary value of such testimonies as the opposition party can ask such questions, which may help get answers according to their desires.
These can only be put up as questions by the opposition party according to s.1427 and must have regard to the following essentials, which makes such a question - a leading question.8
- Court's Permission: In any proceeding, the final decision of whether a leading question can be put up in front of a witness rests at the discretion of the bench. The court must be satisfied with the relevancy of the questions pertaining to the subject matter, and only if the court permits can such questions be asked.
- Objection: If, in any proceeding, a leading question in examination-in-chief or re-examination is objected to by the opposition, no such questions can be asked.
- Incapable Witness: There can be instances where the primary witness is a minor or has an unsound mind. In such circumstances, there is a likelihood that a coherent response cannot be gathered without the use of guidance or leading questions.
- Hostile Witness: In ordinary circumstances, the party on whose behalf the witness appears is expected to take their favor and establish the facts which were put up by the party. However, there can be circumstances where the witness makes statements that go against the interest of the concerned party. The opposition, by the use of leading questions, can further extract information on the same. W.r.t. the hostile witness, it was held in the case of Vinod Kumar v. State of Kerala that frequent cross-examination by the prosecution should be avoided.
- Expert Witness: In order to extract information from the experts, leading questions can be asked.
u/s 146,10 the power is given to the adverse party to ask questions during the cross-examination, which may be used to verify the reliability of the witness by asking him such questions whose answers may tend to injure his own character but may prove his accuracy. Nevertheless, such answers can also make him liable for fine or punishment. This also gives the bench insights into the identity of the witness and may even demonstrate what stage he may be at in life.
In the case of "Rajinder Pershad v Darshana Devi,"11 it was held that a witness must be given an opportunity to explain himself for the part of his testimony that may be considered as "untrue" during the cross-examination. This is necessary as it not only gives the court a clearer picture but also gives a right to the witness to clarify his statements, which may be of importance but earlier quashed by the defence on the basis that they may be false.
Another important aspect is to refrain from questions that do not have any basis in pleadings. It was held in the case of "Deb Naryan Halder v Anushree Halder,"12 which was a matter pertaining to maintenance, and it was later revealed that a few questions were also related to another lady who was not a party. This was unnecessary for the proceedings as no complaint was filed against such facts, which makes such questions unlawful for the proceeding.
Impressible Questions
In order to prevent any harm to the witness's reputation and encourage the adverse party to ask only questions that are relevant to the matter, the legislation has provided certain kinds of questions that are directly impressible to be asked during the litigation. This not only safeguards the reputation of the witness but also saves the court time.
First and foremost, u/s 14713, the witness cannot be obligated to answer any irrelevant questions to the proceedings as it does not have relevancy and rather deviates the focus of the court from the fact in issue.
Section 149 14 attempts to safeguard the reputation of the witness and parties involved by making sure that no questions are asked without a reasonable ground. This not only prevents from drawing illogical inferences from witness's testimony but also prevents any questions which may be termed as unreasonable.
Nevertheless, it does not bar the adverse party to ask such questions if they are related to the subject matter. To ask such questions, there must be a reasonable ground such as instructions by an attorney or some logical basis which demonstrates an underlying reason.
For illustration we may refer to the case of "Rem Singh v State of M, P"15 . In this case, the four accused were tried before the court for murder of the Rem Singh. The witness in the case observed No.2 dealing an axe blow on the deceased head and No.1 attacked him with sticks. According to the statements of the witness, there is no reasonable ground for referring No.1, as the murder as the common object was not murder him.
Another set of questions which are not permitted are of "indecent" nature. u/s 151, The court may forbid such questions however can allow them only if they relate to the fact in issue. Only if they are necessary to be known, the judge may permit the opposition to ask such questions.
There can be questions in the matters of sexual offences and matrimonial disputes which may directly appear to be indecent and it is the obligation of the court to thoroughly confirm the grounds of such questions before permitting them to be asked. Such intention of not permitting such questions can be clearly observed in the case of "State of U.P v Raghubir Singh" 16 where
the court strictly prohibited any indecent remarks on witness who was the mother of the deceased in the matter of kidnapping and murder.
Lastly, the court also prohibits the use of any questions which may directly be used as an insult or cause annoyance for the witness. This is covered under section 15217 and it can be inferred that the court has to ascertain that no questions are asked which negatively impacts the reputation of the witness as if this is not safeguarded, many witnesses may not turn up only in the apprehension of being insulted in a court of a law which eventually become a huge problem for meeting the ends of justice. In the case of "Bharti Yadav v State of U.P."18 The court laid emphasis on the protection of the witness and the victim from any questions which may cause annoyance or insult to them. Further, it also held that if such questions are necessary, there can be camera trials.
Conclusion
Since pre-historic times, oral testimonies have been a crucial part of the proceedings. They are of utmost importance and must be dealt with a suitable procedure in order to extract the truth from the observations of a witness.
In the ordinary proceedings of the court, the main essence of any evidence is to be relevant for the fact in issue and at the same time be accurate and has the grounds on which a court can rely upon. One of the most reliable forms of evidence is the testimony of the witness as he is a person who has observed the crime. In order to extract information, examination of the witness is conducted. There are three types of examinations which can be conducted. The order of such examination is mentioned u/s 138 and has to be strictly followed.
While these examinations are merely an attempt of the testing the reliability of the witness by interrogating him. It is the duty of the Judiciary to distinguish between which questions can be asked and which cannot be in order to maintain its focus on the matter and avoid any insult or annoyance of the witness which are directly helping the court to meet the ends of justice.
Nevertheless, there are provisions which may permit the parties to ask such questions to the witness which may ordinarily may not be able to, it is the duty of judiciary to evaluate the motive behind such question and should allow only such questions which can be the guiding lights towards the truth.
Bibliography
Table of Cases
- Bharti Yadav v State of U.P. (2007) 52 AIC 496 (Del)
- Deb Narayan Halder v Anushree Halder (2003) 11 SCC 303
- Ghulam Rasool Khan V Wali Khan 1952 AIR 54
- Rajinder Pershad v Darshana Devi (2001) 7 SCC 69
- Ram Singh and ors v State of M.P 2013 SCC OnLine MP 11091
- State of U.P. vs Raghubhir Singh (1997) 3 Supreme Court Case 775
- Indian Evidence Act, 1872
- Law Notes, Leading question
- Sushant Biswakarma, Examination and Cross-examination of Witness, iPleaders
- Indian Evidence Act, 1872 S.5
- Sushant Biswakarma, Examination and Cross-examination of Witness, iPleaders, https://blog.ipleaders.in/examination-and-cross-examination-of-witnesses-under-the-indian-evidence-act/ last accessed on 03-03-2025
- Indian Evidence Act, 1872 S.135-165
- Indian Evidence Act, 1872 S.137
- Indian Evidence Act, 1872 S.138
- Ghulam Rasool Khan V Wali Khan 1952 AIR 54
- Indian Evidence Act, 1872 S.142
- Law Notes, Leading question, https://lawnotes.co/leading-question/, last accessed on 03-03-2025
- Indian Evidence Act, 1872 S.140
- Indian Evidence Act, 1872 S.146
- Rajinder Pershad v Darshana Devi (2001) 7 SCC 69
- Deb Narayan Halder v Anushree Halder (2003) 11 SCC 303
- Indian Evidence Act, 1872, S.147
- Indian Evidence Act, 1872, S.149
- Ram Singh and ors v State of M.P 2013 SCC OnLine MP 11091
- State of U.P. vs Raghubhir Singh (1997) 3 Supreme Court Case 775
- Indian Evidence Act, 1872, S.152
- Bharti Yadav v State of U.P. (2007) 52 AIC 496 (Del)
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