Discuss the power of a Judge to put question or order production.

Question: Discuss the power of a Judge to put question or order production.

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Answer

Section 165 of the Indian Evidence Act talks about the power of the judge to put questions or order production.

Under Section 165, “for the purpose of obtaining proper proof of relevant facts, the Judge has been given the power to ask any question to a witness or to a party. Such a question may be asked at any time and may take any form and the question itself may relate to a relevant or an irrelevant fact.

The court may also order the production of any document or thing. No party or his agent shall be entitled to raise any objection to any such question or order, nor, without the court’s permission, the witness shall be cross-examined as to any answer that he may give.”

This section is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the court will be able to look at and enquire into every fact whatever.

He can ask (1) any question he pleases, (2) in any form, (3) at any time, (4) of any witness, (5) or of the parties, (6) about any fact relevant or irrelevant. No party is entitled to object to any such question or order, or to cross-examine the witness without the leave of the court.

But out of the evidence so brought out, the judge can only use that which is relevant and duly proved. There are three exceptions to the very wide powers given to the judge. The witness cannot be compelled to answer:

1. any question or to produce any document contrary to sections 121–131;
2. any question contrary to section 148 or 149; and
3. the judge shall not dispense with primary evidence of any document except as provided before.

The object of allowing the judge to ask irrelevant questions was to obtain “indicative evidence” which might lead to the discovery of relevant evidence. It may be noted that Order X, Rules 2 and 4, Order XVI, Rule 14 of C.P.C. and Section 311, Cr.P.C, have conferred similar powers on the court.

This power has been explained by the Supreme Court in the case of Ritesh Tewari v. State of UP, (2010) 10 SCC 677 as an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require.

Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form.

“Every trial is voyage of discovery in which truth is the quest”.

Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth.

Court’s power to ask questions

The judge’s part in the hearing of a case is to hearken to the evidence, only himself asking questions to witnesses when it is necessary to clear any point that has been overlooked or left absence, to see that the advocates behave themselves properly and keep to the rules laid down by law.

It is the duty of a Judge to discover the truth and for that purpose, he may ask any question and in any form, at any time, of any witnesses or of the parties about any fact relevant or irrelevant. But this he must do, without unduly trespassing upon the function of the counsel of the parties without any hint of partisanship and without appearing to frighten or bully witnesses

Cross-examination on answers given to the Court

Under Section 165 the parties have no right to cross-examine any witness or answers given to the question of the Court except with the permission of the Court. The discretion will have to be exercised judicially and ordinarily, the Judge would give the requisite permission if the answers given are adverse to the party who seeks the said permission.

Proviso 1.—No doubt a Judge is empowered to put irrelevant questions to witness, he cannot base his judgment on irrelevant facts. The judgment must be based on facts declared relevant by the Act and duly proved. Having regard to the stringent provisions of the section a judgment based on irrelevant fact cannot be sustained.

Proviso 2.—Where the question is asked, with a view to criminal proceeding being taken against the witness, the witness is not legally bound to answer it and he cannot be punished under Section 179, I.P.C. for refusing to answer.

The time

Although the law allows the Judge to put any question to any time generally considered proper for an extended examination is, when lawyers for the parties, have finished their questions or at least, when the lawyer.

The Judge may always intervene, in the course of examination by counsel to put a question in a clearer form or to have an obscure answer clarified or to prevent a witness, being unfairly misled, but if he does more, and stops counsel again and again to put a long series of his own questions, he makes an effective examination or cross-examination impossible and demerits the trial from its material course.

Limit on Number of Questions

There is no limit to the questions which the Judge may put, and if he considers, that he has not yet got at the bottom of the matter, or that the witness has not yet made his full meaning clear there is no reason why he should not go with the examination, whatever the number of the questions required to achieve the purpose of eliciting the truth, may be.

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Important Mains Questions Series for Judiciary, APO & University Exams

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