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Section 165
Under Section 165 of Indian Evidence Act, the Judge possesses the authority to pose any question, in any manner, at any moment, to any witness or party regarding any fact, whether relevant or irrelevant, for the purpose of uncovering or securing proper evidence of pertinent facts.
Furthermore, the Judge may mandate the production of any document or item. Neither the parties nor their representatives have the right to object to any such question or mandate.
Additionally, unless permitted by the Court, they may not cross-examine any witness regarding responses to such inquiries.
However, the verdict must rely on facts recognized as relevant by this Act and must be appropriately substantiated.
It is also stipulated that this provision does not empower a Judge to force a witness to respond to questions or present documents that the witness could legally decline to provide in response to queries from the opposing party, as per sections 121 to 131.
Moreover, the Judge should not pose questions that would be inappropriate for others under sections 148 or 149, nor should he forego primary evidence of any document, except in previously specified exceptions.
Judicial Responsibilities in Criminal Trials
The responsibilities of a presiding judge in a criminal trial to uncover the truth are elucidated in a landmark decision of this Court penned by Justice O. Chinnappa Reddy in the case of Ram Chander v. State of Haryana.
Justice Reddy, referencing a prior judgement from his tenure at the Andhra Pradesh High Court, noted:
“Every criminal trial is a voyage of discovery where the truth is the ultimate goal. It is incumbent upon a presiding judge to exhaust all available avenues to unearth the truth and promote justice.
To this end, Section 165 of the Evidence Act expressly empowers a judge to interrogate witnesses. The scope of this authority is so broad that a judge may inquire about any fact, relevant or irrelevant, from any witness or party at any time and in any manner.”
The responsibility of the presiding judge in a criminal trial transcends the role of a mere observer or recorder. Instead, the judge must actively engage in the proceedings by posing questions to witnesses, thereby playing a pivotal role in the pursuit of truth.
Citing Lord Denning's opinion in Jones v. National Coal Board, the learned Judge emphasised that it is the judge's duty to intervene by questioning witnesses whenever necessary to clarify any points that remain ambiguous or unaddressed.
Expanding on Lord Denning's perspective, it was further asserted that the judge's role is crucial in unveiling the truth, which justifies the extensive powers granted under Section 165 of the Evidence Act.
This section empowers the judge to "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant." Nevertheless, in exercising this authority, the judge must carefully balance not overstepping the roles of the public prosecutor and the defence counsel.
The judge should remain neutral, avoiding any appearance of bias or intimidation towards witnesses.
The judicial approach should foster a collaborative atmosphere in the courtroom, where the judge, acting akin to a choir conductor, leverages their personality to cultivate a harmonious and effective team dynamic among the court, the prosecution, and the defence.
The overarching objective is to achieve justice through a cooperative effort, with the judge guiding and harmonising the contributions of all parties involved, thereby ensuring a fair and just trial.
In Ram Chander v. State of Haryana, AIR 1981 SC 1036 it was held that, under Section 165, judges are endowed with broad authority to interrogate witnesses.
This power grants them the flexibility to ask any questions they deem necessary, irrespective of the timing, format, or relevance of the facts being inquired about.
Authority to Request Documents for Fact Discovery
The court's authority to direct the production of documents under section 165 of the Indian Evidence Act is constrained by a critical stipulation that such directives are intended "to discover or obtain proper proof of relevant facts."
This initial proviso is vital in ensuring that the powers granted are exercised appropriately. Commentary on the law further clarifies that the allowance for judges to pose seemingly irrelevant questions is aimed at garnering "indicative evidence," which could potentially lead to uncovering pertinent evidence.
Moreover, despite the restrictions imposed by section 162 of the Criminal Procedure Code, which precludes the use of statements made to a police officer by an accused if the defence wishes to rely on them, the court still holds considerable leeway under this section.
For instance, if a court possesses a case diary and upon the defence counsel's request, it would be within its broad powers to query a police officer about the accused's statements to him.
Such an inquiry would be conducted purely in the interest of the accused, demonstrating the extensive scope of judicial discretion provided to ensure fairness and aid in the pursuit of truth.
Proviso 1 to Section 165 of Indian Evidence Act
This provision mandates that a judgement must be based solely on facts deemed relevant by this Act (sections 5–55) and that have been adequately proven (sections 56–100).
Judges are prohibited from basing their decisions on indicative evidence alone, as it might lead to reliance on hearsay, potentially opening opportunities for fraud and resulting in significant time wastage.
This safeguard is critical to ensure that judicial decisions are founded on solid, primary evidence rather than on speculative or second-hand information.
Proviso 2 to Section 165 of Indian Evidence Act
This proviso ensures that while judges may pose irrelevant questions to witnesses to extract evidence relevant to the case, they cannot compel witnesses to respond if such responses might incriminate them.
This protection is aligned with sections 121–131, and sections 148 and 149, safeguarding the rights of witnesses under potential criminal scrutiny.
Additionally, witnesses retain the right to refuse to answer questions under such circumstances, as reinforced by section 179 of the Indian Penal Code.
Constraints on the Use of Section 165
Section 165 becomes inapplicable once the evidence phase is concluded, the prosecution has rested its case, and the judge has begun deliberating on the judgement.
At this stage, if it becomes evident that the prosecution has overlooked a critical aspect of the case, this section cannot be utilised to reintroduce evidence to rectify such an oversight.
This ensures that the judicial process is not misused to compensate for earlier procedural or evidential deficiencies.
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