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Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Judge’s Power to Put Questions or Order Production (Section 168)
Case Scenario
In a criminal trial, a witness gives unclear answers about the time and place of the incident. The prosecutor fails to ask follow-up questions, and the defence remains silent, hoping the ambiguity will benefit the accused. The judge, realizing that the truth is not fully emerging, intervenes by asking direct questions and orders the production of a document referred to by the witness. The parties object, claiming that the judge is exceeding his role.
Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 squarely answers whether such judicial intervention is lawful.
Judge’s Power to Put Questions or Order Production – Section 168
Statutory Concept (Paraphrased in Simple English)
Section 168 empowers the Judge, for the purpose of discovering or proving relevant facts, to:
Once the Judge exercises this power:
Core Principle Behind Section 168
The foundation of Section 168 is that:
The primary duty of the court is to discover the truth and do justice, not merely to act as an umpire between two adversaries.
Mandatory Safeguard: Judgment Must Be Based on Relevant and Proved Facts
Even though the Judge has wide powers:
This ensures that:
Limits on Judge’s Power – Important Restrictions
1. No Power to Compel Protected Answers or Documents
The Judge cannot compel a witness to:
if the witness is legally entitled to refuse under Sections 127–136 (privileged communications, self-incrimination, professional secrecy, etc.).
👉 The Judge’s power is subject to witness protections.
2. No Power to Ask Improper Questions
The Judge:
3. No Dispensation with Primary Evidence
The Judge:
This maintains the integrity of documentary evidence.
Changes Introduced Under the Bharatiya Sakshya Adhiniyam, 2023
Compared to the Old Evidence Act, 1872
Old Act
New Adhiniyam
Term “agents”
Term “representatives”
“Ask any question he pleases”
“Ask any question he considers necessary”
👉 These changes:
Scope of Section 168
Section 168 deals with:
Judicial intervention is not optional—it is often a duty.
Court’s Power to Ask Questions – Explained
However, the Judge must:
If the Judge is not satisfied:
Objections and Cross-Examination
Critical Analysis of Section 168
Strengths
Limitations
10 Illustrative Case Scenarios
Conclusion
Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 confers wide but carefully regulated powers on judges to ask questions and order production of documents. The provision reflects the modern understanding that a fair trial requires an active and vigilant judge, not a silent recorder of proceedings.
At the same time, the section builds strong safeguards to protect witnesses, preserve procedural fairness, and ensure that judgments rest only on legally relevant and duly proved facts. When exercised with restraint and impartiality, Section 168 becomes a powerful tool for achieving truth, justice, and fairness in judicial proceedings.
Judge’s Power to Put Questions or Order Production (Section 168)
Case Scenario
In a criminal trial, a witness gives unclear answers about the time and place of the incident. The prosecutor fails to ask follow-up questions, and the defence remains silent, hoping the ambiguity will benefit the accused. The judge, realizing that the truth is not fully emerging, intervenes by asking direct questions and orders the production of a document referred to by the witness. The parties object, claiming that the judge is exceeding his role.
Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 squarely answers whether such judicial intervention is lawful.
Judge’s Power to Put Questions or Order Production – Section 168
Statutory Concept (Paraphrased in Simple English)
Section 168 empowers the Judge, for the purpose of discovering or proving relevant facts, to:
- Ask any question
- In any form
- At any time
- To any witness or party
- About any fact
- Order the production
- Of any document
- Or any material object
Once the Judge exercises this power:
- Neither the parties nor their representatives can object to such questions or orders
- Cross-examination on answers given to such questions is not allowed unless the Court permits it
Core Principle Behind Section 168
The foundation of Section 168 is that:
The primary duty of the court is to discover the truth and do justice, not merely to act as an umpire between two adversaries.
Mandatory Safeguard: Judgment Must Be Based on Relevant and Proved Facts
Even though the Judge has wide powers:
- The final judgment must be based only on facts:
- Declared relevant by the Adhiniyam, and
- Properly proved according to law
This ensures that:
- Judicial curiosity does not replace legal proof
- Decisions are not based on speculation or unproven material
Limits on Judge’s Power – Important Restrictions
1. No Power to Compel Protected Answers or Documents
The Judge cannot compel a witness to:
- Answer a question, or
- Produce a document
if the witness is legally entitled to refuse under Sections 127–136 (privileged communications, self-incrimination, professional secrecy, etc.).
👉 The Judge’s power is subject to witness protections.
2. No Power to Ask Improper Questions
The Judge:
- Cannot ask questions that are improper under Sections 151 and 152
- Cannot humiliate, insult, annoy, or harass witnesses
3. No Dispensation with Primary Evidence
The Judge:
- Cannot dispense with primary evidence of documents,
- Except in exceptional cases recognized by law
This maintains the integrity of documentary evidence.
Changes Introduced Under the Bharatiya Sakshya Adhiniyam, 2023
Compared to the Old Evidence Act, 1872
Old Act
New Adhiniyam
Term “agents”
Term “representatives”
“Ask any question he pleases”
“Ask any question he considers necessary”
👉 These changes:
- Narrow arbitrariness
- Emphasize judicial necessity and responsibility rather than discretion without limits
Scope of Section 168
Section 168 deals with:
- The right and duty of the Judge to question witnesses
- The expectation that the Judge must be fully aware of evidence
- The obligation to intervene when:
- Advocates overlook important points
- Examination of witnesses is inadequate
Judicial intervention is not optional—it is often a duty.
Court’s Power to Ask Questions – Explained
- The Judge may ask:
- Relevant or even irrelevant questions
- At any stage of the trial
- Purpose:
- To remove ambiguity
- To uncover concealed facts
- To understand the depth of the matter
However, the Judge must:
- Not take over the role of advocates
- Not frighten or pressure witnesses
- Maintain neutrality
If the Judge is not satisfied:
- He may continue questioning
- Regardless of the number of questions required
Objections and Cross-Examination
- Parties cannot object to:
- Questions asked by the Judge
- Orders passed by the Judge under Section 168
- Cross-examination on answers:
- Allowed only with permission of the Court
- Entirely at judicial discretion
Critical Analysis of Section 168
Strengths
- Ensures discovery of truth
- Prevents miscarriage of justice due to poor advocacy
- Strengthens participatory role of the Judge
- Protects fairness of trial
- Discourages tactical silence by parties
Limitations
- Risk of judicial overreach
- Possibility of perceived bias
- Requires high judicial restraint and competence
- Overuse may intimidate witnesses
10 Illustrative Case Scenarios
- Judge clarifies vague witness testimony
- Prosecutor omits key question—Judge intervenes
- Missing document ordered to be produced
- Defence silence neutralized by judicial questions
- Judge asks improper question—appellate correction
- Witness refuses privileged answer—Judge respects refusal
- Primary document insisted upon by Judge
- Excessive questioning leads to allegation of bias
- Balanced intervention ensures conviction upheld
- Passive judge leads to acquittal on appeal
Conclusion
Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 confers wide but carefully regulated powers on judges to ask questions and order production of documents. The provision reflects the modern understanding that a fair trial requires an active and vigilant judge, not a silent recorder of proceedings.
At the same time, the section builds strong safeguards to protect witnesses, preserve procedural fairness, and ensure that judgments rest only on legally relevant and duly proved facts. When exercised with restraint and impartiality, Section 168 becomes a powerful tool for achieving truth, justice, and fairness in judicial proceedings.
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