Gujarat High Court
Saileshkumar Ambalal Patel vs State Of Gujarat & on 2 December, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/7343/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7343 of 2016
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SAILESHKUMAR AMBALAL PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR TUSHAR CHAUDHARY, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/12/2016
ORAL ORDER
1 Rule returnable forthwith. Ms. Pathak, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent No.1 State of Gujarat. The respondent No.2 - original accused, although served with the Notice issued by this Court through the Jail Superintendent, has chosen not to appear either in person through an advocate.
2 It appears from the materials on record that the Public Prosecutor put certain questions to the witness which came to be disallowed by the trial Court since an objection was raised by the defence that such questions were leading questions. In such circumstances, an application came to be filed Exhibit: 32 before the trial Court seeking permission to put such questions in the interest of justice. Vide order dated 31st August 2016 rejected the application Exhibit: 32.
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R/SCR.A/7343/2016 ORDER
3 Being dissatisfied, the original first informant has come up with
this application.
4 On 18th November 2016, the following order was passed:
"1 Pursuant to the order passed by this Court dated 15th November
2016, the statement of the accused has been recorded. The accused has requested the Court to grant him some time so that he can engage an advocate and oppose this petition. I take notice of the fact that the accused is an undertrial prisoner. The issue involved in the matter is in a very narrow compass. A neat question of law has been raised. One last opportunity is given to the accused for the purpose of opposing this petition. Let this matter be notified for final disposal on 2nd December 2016. By 2nd December 2016, if the accused is not able to engage any advocate, then this Court shall proceed further with the matter.
2 The Jail Superintendent shall bring to the notice of the respondent No.2 the order passed by this Court today.
3 Let the matter appear on top of the Board."
5 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the trial Court committed any error in rejecting the application Exhibit: 32.
6 What is a leading question has been exhaustively explained by this Court in the case of Dhaval Gopalbhai Dobariya and others vs. State of Gujarat [2015 Cr. L.J. 3807]. I may quote the relevant observations made by this Court as under:
"6. A leading question is a suggestive?, i.e., a question which suggests the answer which the interrogator wishes or except to receive, or which embodying a material fact admits of a conclusive answer by a simple negative or affirmative. A question is leading where the question assumes any fact which is in controversy, so that the answer may really or apparently admit that fact, for example e.g. question. A question admitting Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Dec 03 00:25:30 IST 2016 R/SCR.A/7343/2016 ORDER of being answered by a simple yes or no is regarded as generally a leading and improper question. The rule is not, however, rigid inasmuch as such question depends in its suggestion more than in the tone of voice then in the form of words. Whether a question in a particular form is leading or not depends upon whether it does or does not suggest any particular answer. The question will be leading, if it rehearses lengthy details which the witness might not otherwise have mentioned.
7. I may quote the relevant provisions of the Evidence Act, 1872 which reads thus:
"SECTION 137 : Examinationinchief The examination of a witness by the party who calls him shall be called his examinationinchief.
Crossexamination.The examination of a witness by the adverse party shall be called his crossexamination. Reexamination.The examination of a witness, subsequent to the cross examination by the party who called him, shall be called his reexamination.
SECTION 138 : Order of examinations Witnesses shall be first examinedinchief, then (if the adverse party so desires) crossexamined, then (if the party calling him so desires) reexamined.
The examination and crossexamination must relate to relevant facts, but the crossexamination need not be confined to the facts to which the witness testified on his examinationinchief. Direction of reexamination.The reexamination shall be directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the Court, introduced in re examination, the adverse party may further crossexamine upon that matter.
SECTION 139 : Crossexamination of person called to produce a document A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be crossexamined unless and until he is called as a witness.
SECTION 140 : Witnesses to character Witnesses to character may be crossexamined and reexamined.
SECTION 141 : Leading questions Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.
SECTION 142 : When they must not be asked Leading questions must not, if objected to by the adverse party, be Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Dec 03 00:25:30 IST 2016 R/SCR.A/7343/2016 ORDER asked in an examinationinchief, or in a re examination, 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.
SECTION 143 : When they may be asked Leading questions may be asked in cross examination".
8. Section 137, Evidence Act, enacts that the examination of a witness by the adverse party shall be called his crossexamination. Section 141 states that a leading question is one which suggests the answer which the person putting it wishes or expects to receive, while Section 142 lays it down that leading questions must not, if objected to by the adverse party, be asked in an examinationinchief or in a reexamination except with the permission of the Court but, under Section 143, they may be asked in cross examination. A very brief consideration of these provisions, than which to an advocate nothing could be more elementary, will assist in an appreciation of the reply to the questions to which we have to furnish an answer. It is assumed that a party will call as witnesses only persons who can prove his case and in practice, as an almost invariable rule, what such witnesses may be expected to say is known beforehand. Hence the rule against leading questions by the party on whose behalf a witness is called. To the adverse party such witnesses are presumably hostile, a not altogether felicitous expression in so far as it implies personal animosity, but one which means that their evidence is not to be expected to be favourable to the side against which they are called to depose. 'To test their veracity, the truth of the story to which they have been called to testify, or to learn if and how far 'they will support the case of the adverse party, the latter is allowed to put leading questions in crossexamination, as it is not to be expected that such witnesses would give answers favourable to the adverse party unless the answers were suggested to them.
9. The Supreme Court in the case of Varke Joseph v. State of Kerala (supra) has explained in detail regarding a leading question. I quote the observations made in paragraph11.
Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the court must only Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Dec 03 00:25:30 IST 2016 R/SCR.A/7343/2016 ORDER be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and crossexamination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted (sic) to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act are intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Ss. 143 and 154 provides the right to crossexamination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but S. 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intend to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity.
10. The following propositions are discernible from the aforesaid decision of the Supreme Court, on which strong reliance has been placed by the learned counsel appearing for the applicants.
(i) Leading question may be used to prepare witness to give the answers to the question about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute.
(ii) The direction of the Court must only be controlled towards that end Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Dec 03 00:25:30 IST 2016 R/SCR.A/7343/2016 ORDER but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless witness, with the permission of the Court, is declared hostile and crossexamination is directed thereafter in that behalf.
(iii) As soon as the witness has been conducted (sic) to the material portion of his examination, it is generally the duty of the prosecution to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen.
(iv) The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely yes or no will give the evidence which the prosecutor wishes to elicit.
(v) The witness must account for what he himself had seen. Ss. 145 and 154 of the Evidence Act are intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Ss. 143 and 154 provide the right to crossexamination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but S. 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intend to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witnesses by answering merely yes or no but he shall be directed to give evidence which he witnessed.
(vi) The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witnesss mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give.
(vii) The Counsel must leave the witness to tell unvarnished tale of his own account.
The Sessions Court permitted even without objection by the defence to put leading questions in the chiefexamination itself suggesting all the answers which the prosecutor intended to get from the witnesses to connect the appellant with the crime. For instance, see the evidence of PW1Then I saw Jose (appellant) coming from the north and going towards south. Did you notice his dress then? Yes. He had worn a white dhoti..... Did you notice his dhoti? Yes. I had seen two or three drops of blood on his dhoti. Suddenly, I had a doubt. Similarly, PW4 also at that time Did you any one from Ramanattu house came for tea? Yes. Jose came. When did Jose come to have tea? I do not remember...... Did Jose came on the previous day. Yes. He Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Dec 03 00:25:30 IST 2016 R/SCR.A/7343/2016 ORDER came about 6 p.m. In the evening. Did he say anything? He brought a bag and said let it be here. I shall take this bag after some time.... What was the dress of the accused when he came to the shop? He was wearing white dhoti and tied a cloth on his hand. Have you noticed anything particular on the dhoti? No.Similar leading questions were put to other witnesses also to elicit on material part of the prosecution case in the chiefexamination itself without treating any of the witness hostile.
Under S. 142 leading questions must not, if objected to by the adverse party, be asked in an examinationinchief, or in a reexamination, except with the permission of the Court.
11. In the facts of that case, the court held that the criminal trial was unfair to the appellant and the procedure adopted in the trial was illegal and unconstitutional.
12. The decision of the Supreme Court in the case of Varke Joseph (supra) has been considered in the case of Sidhartha Vashisht @ Manu Sharma vs. State (N.C.T. Of Delhi), AIR 2010 SC 2352, wherein the Supreme Court in paragraph97 observes thus:
Mr. Ram Jethmalani, learned senior counsel next contended that the Public Prosecutor in the present case had put a leading question to Malini Ramani regarding identification of the accused Manu Sharma. We verified the said question. The question put by the Public Prosecutor, was at best clarificatory, and by no stretch of imagination can be termed as a leading question favouring/eliciting an answer favouring the prosecution. The evidence of Ms. Malini Ramani two paragraphs prior to the leading question and two paragraphs thereafter, if read in conjunction with each other clarifies the whole scene and sequence of events. Learned senior counsel has relied upon the judgment in Varkey Joseph vs. State of Kerala, 1993 Supp (3) SCC 745 : (AIR 1993 SC 1892 :
1993 AIR SCW 1729) to support his contention. The; said judgment is clearly distinguishable. On the facts in that case, this Court found that the Prosecutor had put leading questions, without objections by the defence, to several material and key witnesses regarding the culpability of the accused. The extent of the leading questions put, were on the facts of that case found to violate the constitutional right of a fair trial of the accused. The facts of the present appeal are wholly different. The petitioner had adequate and competent legal representation before the trial Court and leading questions, if any, put by the prosecutor were objected to by the defence and several questions were disallowed by the trial court. Furthermore, the finding of guilt of the appellant herein by the High Court has not been on account of any of the answers elicited to any such questions. It is not as if every single leading question Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Dec 03 00:25:30 IST 2016 R/SCR.A/7343/2016 ORDER would invalidate the trial. The impact of the leading questions, if any, has to be assessed on the facts of each case.
13. Thus what is discernible from the aforesaid decision of the Supreme Court is that every single leading question would not invalidate the trial. The impact of the leading question, if any, should be assessed considering the facts of each case."
7 Having regard to the position of law, as explained by this Court in the above referred judgment, the trial Court should have permitted the Public Prosecutor to put the questions which he intended and were disallowed. I may clarify that the impact of the leading questions, if any, should be assessed considering the facts of each case and every single leading question would not invalidate the trial. In the peculiar facts of this case and having regard to the case of the prosecution, in my view, the questions, which the Public Prosecutor proposes to put to the witness, should have been permitted to be put. I am told that the first informant is very much in the box. His evidence is being led. In such circumstances, there is no question of recalling the witness. Since the first informant is already in the box, the trial Court shall permit the Public Prosecutor to put those limited questions which he intends to put and were disallowed.
8 With the above, this application is disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Dec 03 00:25:30 IST 2016