IMPORTANT POINT
Every single leading question would not invalidate trial.

ORDER (ORAL)

J.B. Pardiwala, J.—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.

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 under trial 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 v. 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 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: Examination-in-chief

The examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examination. The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination. 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 examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) reexamined.

The examination and cross-examination must relate to relevant facts,