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Judgment
Heard.
The applicant has filed this second application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short- “BNSS”) seeking grant of regular bail in connection with Crime No.766/2025 registered at Police Station Gotegaon, District Narsinghpur, for the offences punishable under Sections 296, 115(2), 118(2) and 3(5) of the Bharatiya Nyaya Sanhita, 2023. The applicant is in judicial custody since 23.10.2025. The first application, being M.Cr.C. No. 54723/2025, was dismissed as withdrawn by this Court vide order dated 13.01.2026.
As per the prosecution portrayal, the applicant, along with co-accused Lalaram and Chhotu Silawat, was consuming liquor separately near a canal. Thereafter, while hurling filthy abuses, Chhotu Silawat assaulted Satish Rajak with a wooden stick (lathi), whereas Lalaram struck him with an axe, causing injuries. As a result of the axe blow, Satish Rajak sustained a lacerated wound on his hand, leaving it dangling. On this premise, the aforesaid crime has been registered.
4 Learned counsel for the applicant, besides other grounds, submits that this second application for bail is mainly grounded on the substantial change in the prosecution portrayal that the prime witness of prosecution injured Satish Rajak has been examined in the trial Court and has been declared hostile by the prosecution. The prosecution itself did not believe the said witness, thus, his evidentiary value loses its efficacy. It is also submitted that the applicant has been in judicial custody since 23.10.2025 and the trial is likely to take considerable time to conclude. Alternatively, learned counsel for the applicant prayed that if this Court is not inclined to grant bail, the applicant may be permitted to withdraw this application.
It is a well settled proposition of law that the Court while considering bail matter, is not required to examine the case on its merits, rather, should refrain from expressing any opinion on the merits. Since, the core contention rests on the “hostility” of a key witness, it is necessary to discuss the legal position relating to hostile witnesses. A copy of the statement of witness, namely Satish Rajak has been placed on record as Annexure-P/3. It is evident from the examination-in-chief of witness Satish Rajak that he categorically narrated the incident and deposed in support of the prosecution case, however, when the witness could not depose on his own, as he wasn’t asked by the Public Prosecutor, regarding the lodging of Dehati Nalishi, the learned Public Prosecutor declared the witness hostile and sought permission from the trial Court to put questions which might be asked during the cross-examination of such witness. The learned trial Court granted permission taking into account the provisions of Section 154 of Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as "the Sakshya Adhiniyam").
The procedure adopted for examining the witness Satish Rajak, in the considered opinion of this Court, amounts to a procedural deviation and reflects a misconception of the legal concept of a hostile witness. This Court has, on several occasions, noticed that Public Prosecutors, as a matter of routine, seek permission to put questions in the nature of cross-examination after having a witness declared hostile, even in cases where the witness has substantially supported the prosecution and has merely omitted to state a particular fact. The trial Courts also, in many such cases, mechanically grant such permission. It is, therefore, considered apposite to briefly examine the legal position governing the examination of hostile witnesses.
Chapter X of the Sakshya Adhiniyam, deals with the examination of witnesses. Section 142 provides three categories of examination based on which side calls such witnesses. It is imperative to quote the provisions of Section 142 of Sakshya Adhiniyam, as under:-
“142.Examination of witnesses;- (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2)The examination of a witness by the adverse party shall be called his cross-examination.
(3)The examination of a witness subsequent to the cross examination by the party who called him shall be called his re-examination.”
Further, Section 143 of the Sakshya Adhiniyam lays down the order of examination of witnesses and also the extent of testifying a witness, as the scope of cross-examination is not confined merely to the facts stated by the witness in his examination-in-chief, but extends to all relevant facts permissible under law. It is apt to quote Section 143, which reads as under:-
“143.Order of examinations;- (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
(2)The examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3)The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.”
The pattern and manner of questioning constitute the nucleus of the examination of a witness. Section 146 of the Sakshya Adhiniyam defines “leading questions” and lays down that leading questions cannot ordinarily be asked in examination-in-chief or re-examination. Section 157, on the other hand, empowers the Court to permit the party calling a witness to put to him questions which might be put in cross-examination by the adverse party. Section 146 and Section 157 are reproduced hereinbelow:-
“146.Leading questions;- (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.”
“157.Question by party to his own witness;- (1) The court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross examination by the adverse party.
(2)Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.”
The distinction between permitting leading questions and permitting cross-examination of one's own witness is required to be kept in mind. A bare reading of Section 146 makes it clear that a leading question, namely a question which suggests the answer desired by the person putting it or assumes the existence of a disputed fact, may be put in examination-in-chief only with the permission of the Court. The concept of the basic requirement for pulling a leading question is to lead a witness to an undisputed point with the permission of the Court. This is just to save the time or not to repeat what has already been conceded to or to skip over the undisputed facts. Leading questions may appropriately be permitted on introductory matters, matters relating to identification, or other formal aspects which merely facilitate the examination of the witness. A question does not become a leading question merely because it can be answered by "yes" or "no". Where the witness merely omits to state a particular fact or his memory requires to be refreshed, the Court may, in an appropriate case, permit leading questions under Section 146.
Further, where the witness resiles from his previous statement, suppresses material facts, adopts an attitude adverse to the party calling him, or gives evidence inconsistent with his previous version so as to prejudice the case of such party, the Court may, in the exercise of its discretion under Section 157, permit the party calling the witness to put questions in the nature of cross-examination. Section 157 thus confers a wider discretion upon the Court by enabling the party calling the witness, with the leave of the Court, to put any question which might lawfully be put by the adverse party in cross-examination.
The provisions contained in Sections 146 and 157 of the Sakshya Adhiniyam, give rise to an important question, namely, whether a witness must necessarily be declared hostile before the Court can permit the party calling him either to put leading questions under Section 146 or to put questions in the nature of cross-examination under Section 157. The answer to this question is no longer res integra. Indeed, the law has remained settled for more than a century. The Privy Council, in Baikuntha Nath v. Prasannamoyi, AIR 1922 PC 409 observed as under:-
“Nagendra Nath Ghose does not support the proponent’s case, for in his examination-in-chief he declared that he did not know whether Mandakini executed any Will, and that it was to a blank paper that he put his signature at the request of Ram Lal Gosain.
An application was therefore made to the District Judge to declare the witness hostile and to allow the proponent to cross-examine him.
This is a position for which provision is made by Section 154 of the Evidence Act, which says nothing as to declaring a witness hostile, but provides that the Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.”
The expression "hostile witness" does not find place either in the Indian Evidence Act, 1872 or in the Sakshya Adhiniyam. A hostile witness is one who, by his omissions and commissions from the witness box, raises a reasonable belief in the mind of the Court that, for some reason or the other, he has changed sides. It is a phrase coined in judicial parlance to describe a witness who, by his conduct or testimony, appears to have shifted his allegiance to the opposite party.
The statutory scheme does not contemplate that a witness must first be declared hostile before the Court can exercise its discretion either to permit the party calling the witness to put leading questions under Section 146 or to permit such party to put questions in the nature of cross-examination under Section 157 of the Sakshya Adhiniyam. The permission granted by the Court under either of these provisions is merely procedural in nature and does not amount to a declaration that the witness has become hostile or that his entire testimony stands effaced. Likewise, the grant of permission to put questions in the nature of cross-examination is not conditional upon the witness first being declared hostile. The expressions "declared hostile" or "declared adverse" have no independent statutory significance inasmuch as the grant of such permission neither determines the credibility of the witness nor amounts to an adjudication upon his veracity.
The Supreme Court in Sat Paul v. Delhi Administration, (1976) 1 SCC 727, while examining the scope of Sections 142 and 154 of the Indian Evidence Act, 1872 (corresponding to Sections 146 and 157 of the Bharatiya Sakshya Adhiniyam, 2023) has observed as under:-
“37.To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi AIR 1922 PC 409). The discretion conferred by Section 154 on the court is unqualified and untrammelled and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesse's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
The Supreme Court, further, examining the evidentiary value of a witness declared hostile by the party calling such witness in the following terms;
51.From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.”
The Supreme Court in Varkey Joseph v. State of Kerala, AIR 1993 SC 1892, has also explained the scope and object of permitting leading questions and the discretion vested in the Court while regulating the examination of witnesses. In Rajesh Yadav and another v. State of Uttar Pradesh, (2022) 12 SCC 200, the Apex Court has explained the concept of a hostile witness in the following words:
“22.…........ It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion.”
Thus, the statute does not contemplate a formal declaration of hostility as a condition precedent for granting such permission. What is required is that the party seeking such permission should disclose sufficient reasons to enable the Court to exercise its judicial discretion. Therefore, the mere fact that the prosecution seeks permission to put leading questions cannot, by itself, justify treating the witness as hostile. The trial Court is required to examine whether the witness has, in fact, exhibited an adverse attitude, resiled from his previous version, or otherwise made it necessary, in the interest of justice, to permit the prosecution to put questions in the nature of cross-examination. The discretion of the Court must, therefore, be exercised cautiously and not as a matter of routine but only to the extent necessary for eliciting admissible evidence.
It is noteworthy that the examination of a witness by the party calling him remains an examination-in-chief notwithstanding the fact that, with the permission of the Court under Section 157 of the Sakshya Adhiniyam, such party is permitted to put questions which might otherwise be asked by the adverse party in cross-examination. The mere fact that leading questions are permitted or that questions in the nature of cross-examination are put to the witness by the party calling him does not alter the character of such examination. It continues to remain an examination-in-chief within the meaning of Section 143 of the Sakshya Adhiniyam. This principle has been recognized by this Court in Bansilal v. State of M.P. and another, 1981 JLJ 143 and also by the Gujarat High Court in State v. Mohan Hire, AIR 1960 Gujarat 9.
In the present case, a perusal of the deposition of prosecution witness Satish Rajak demonstrates that he has substantially supported the prosecution case in his examination-in-chief and narrated the occurrence. The only omission is that he did not specifically state that the information furnished by him was reduced into writing in the form of a Dehati Nalishi. Such omission, by itself, could not justify an inference that the witness had become adverse to the prosecution. Since the contents of the Dehati Nalishi had already been narrated by the witness and the document itself was available on record, the learned Public Prosecutor could have sought permission of the Court to put an appropriate leading question, without drawing the attention of the witness to the contents of the Dehati Nalishi, merely to elicit the fact that the information was reduced into writing in that form. Such permission could have been granted under Sections 146 and 157 of the Sakshya Adhiniyam, even without declaring the witness hostile. Declaring the witness hostile in such circumstances reflects a misconception of the true scope and object of the aforesaid provisions.
After considering the arguments raised on the ground of hostility of witness, which has no force, this Court is inclined to permit the applicant to withdraw the application. Accordingly, the application is permitted to be withdrawn. Hence, the application filed under Section 483 of BNSS is, hereby, dismissed as withdrawn.