The Judge's Power to Ask Questions and Order Production under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023

Section 168 confers the widest power in the Adhiniyam. The judge may ask any question he pleases, in any form, at any time, of any witness or of the parties, about any fact relevant or irrelevant, and neither the parties nor their agents may object. The width is astonishing on a first reading and is deliberate: it exists because a system that leaves the discovery of truth entirely to the parties will sometimes fail to discover it. Three provisos are what keep the power within bounds.

1. The Provision

Section 168 corresponds to Section 165 of the Indian Evidence Act and is carried forward unchanged. The provision of the earlier Act empowering a jury or assessors to put questions has been omitted, juries having been abolished.

2. The Width of the Power

Every limiting expression that might have been used has been deliberately left out, and the effect is cumulative.

The power to ask about an irrelevant fact is the one that requires explanation. A judge cannot know in advance whether a line of enquiry will lead to something relevant. The section therefore permits him to ask, and confines the use of what he learns by the first proviso — he may enquire into anything, and may decide only on relevant facts duly proved.

The section also confers a power to order the production of any document or thing, which is the court's own counterpart to a party's notice to produce under Section 64 and to a summons under the criminal procedure legislation.

3. The Three Limits

The provisos are what make the width tolerable, and each performs a distinct function.

3.1 The judgment must rest on relevant facts duly proved

The first proviso is the fundamental one. The judge may ask about anything; he may decide only on facts declared relevant by the Adhiniyam and duly proved.

Two consequences follow. The width of the enquiry does not enlarge the basis of the decision, and an answer about an irrelevant fact remains irrelevant however it was obtained. And material elicited under the section still has to be proved in the ordinary way — a document ordered to be produced is not thereby in evidence, and must be proved under Sections 56 to 73 like any other.

3.2 The privileges survive

The second proviso preserves Sections 129 to 136 entirely. The judge may not compel a witness to answer or produce what he could refuse if the adverse party had asked.

3.3 Improper questions

The judge may not ask a question that it would be improper for any other person to ask under Section 152 — a question going to credit without reasonable grounds — or Section 153, the provision under which such a question may be reported to the questioner's professional authority.

Nor may he dispense with the primary evidence of any document except in the cases the Adhiniyam itself excepts. The power to ask questions is not a power to relax the rules of proof.

4. Why the Power Exists

The adversarial system assumes that the truth will emerge from a contest between two parties each pursuing its own interest. The assumption fails in identifiable situations, and Section 168 exists for them.

• Where a party is unrepresented or poorly represented, and a material question is simply never asked.
• Where an answer has been left ambiguous and neither side has an interest in clarifying it.
• Where a witness has plainly misunderstood a question and answered a different one.
• Where both parties have an interest in suppressing the same matter.
• Where witnesses have turned hostile and the prosecution has become passive.

The decision is the leading Indian statement on the judicial role, and its two halves are usually quoted separately. The first is an instruction to intervene; the second is a warning about how. Both are part of the same holding.

The classical English formulation says the same thing from the other direction. A judge's part is to hearken to the evidence, to ask questions only when it is necessary to clear up a point that has been overlooked or left obscure, to see that the advocates behave themselves, to exclude irrelevancies and to make sure by wise intervention that he follows the points made — but if he descends into the arena, his vision may be clouded by the dust of the conflict.

5. Where the Power Is Most Needed

The decision reads Section 168 together with the power in the criminal procedure legislation — corresponding to Section 311 of the Code of Criminal Procedure, 1973 — under which a court may at any stage summon any person as a witness, or recall and re-examine any person already examined, and shall do so if his evidence appears to it essential to the just decision of the case.

6. The Limits in Practice

The statutory provisos are not the only constraints. Four further limits are supplied by the decisions and by the requirements of a fair trial.

The judge must not descend into the arena. Intervention directed at eliciting evidence is proper; intervention that amounts to conducting one side's case is not, and a judgment delivered after a trial in which the judge effectively prosecuted is open to attack.

He must not frighten, coerce, confuse or intimidate a witness — Ram Chander. A witness who varies his evidence out of fear of the judge has not given evidence at all.

He should ordinarily allow cross-examination on his questions. The section makes it subject to leave, but leave will normally be given where the answer is material, since a party against whom an answer operates should be able to test it.

The timing matters. Questions put during a party's examination may disrupt a planned sequence and may reveal to the witness the direction of a cross-examination. The conventional practice is to note the point and put it after the party has finished, unless clarification cannot wait.

7. The Judge's Role Across the Adhiniyam

Section 168 is the widest expression of a theme that runs through the statute: the court is an active participant and not a spectator.

Reading them together, the Adhiniyam does not contemplate a passive judge at any stage. What Section 168 adds is a general power where the specific ones do not reach.

8. Practical Points

1. No objection lies to a question under Section 168. The correct course is to seek leave to cross-examine on the answer.
2. Seek that leave where the answer is material, and expect it to be given.
3. Where a privilege under Sections 129 to 136 is engaged, say so. The second proviso preserves it against the court's own power.
4. Remember that material elicited must still be proved. A document ordered to be produced is not thereby in evidence.
5. Where a judge's questioning has crossed into conducting a case, record the objection, since the point is one for appeal rather than for argument at the time.
6. Where witnesses have turned and the truth is being suppressed, invite the court to act — Section 168 and the power to summon or recall.
7. Do not invite the court to fill a gap in your case. The first proviso requires the judgment to rest on facts duly proved, however they were elicited.

9. The Position Stated Shortly

1. Section 168 confers the widest power in the Adhiniyam — any question, in any form, at any time, of any witness or party, about any fact relevant or irrelevant.
2. The parties may not object, and may cross-examine on the answer only with leave.
3. The judgment must rest on facts declared relevant and duly proved — the first proviso, and the fundamental limit.
4. The privileges in Sections 129 to 136 survive the power entirely.
5. The judge may not ask what would be improper under Sections 152 or 153, nor dispense with primary evidence.
6. The judge is not a mere umpire and must intervene to discover the truth — Ram Chander.
7. But he must not frighten, coerce, confuse or intimidate a witness, nor descend into the arena.
8. Where the parties have ceased to pursue the truth, the court has a duty to act — Zahira Sheikh.

10. Related Topics and Provisions