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Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 – Participatory Role of the Presiding Judge (Section 168 BSA)
Case Scenario
Consider a criminal trial where a key witness gives vague and incomplete answers because the prosecutor fails to ask follow-up questions. Important facts about the manner of commission of the offence remain unclear. The defence remains silent, hoping to benefit from these gaps. If the judge merely records whatever is said without intervention, the truth may never come out. The question then arises: Is a trial judge expected to remain silent, or does the judge have a duty to actively ensure that the truth is discovered?
This issue lies at the heart of the participatory role of presiding judges, as recognised under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and clarified by the Supreme Court.
Participatory Role of Presiding Judges – Concept Explained
The participatory role of a presiding judge means that:
This role is rooted in the idea that the court’s primary responsibility is to discover the truth and serve the ends of justice, not merely to referee between the prosecution and defence.
Supreme Court Decision: Anees v. State Govt. of NCT of Delhi
In Anees v. State Govt. of NCT, the Supreme Court strongly emphasized that:
The Court criticized the practice of judges acting as “mere tape recorders”, stating that such an approach defeats the purpose of a fair trial.
Statutory Basis under Bharatiya Sakshya Adhiniyam, 2023
Section 168 – Power of Judge to Ask Questions
Section 168 of the Bharatiya Sakshya Adhiniyam empower the presiding judge to:
This power exists independently of the parties and can be exercised even when:
Purpose of Judicial Participation
The participatory role serves the following purposes:
Limits on the Participatory Role
While judges have wide powers, they must:
Critical Analysis
Strengths
Concerns
Despite these concerns, the Supreme Court has consistently held that passivity is more dangerous than participation when justice is at stake.
10 Case Scenarios Illustrating Participatory Role of Judges
Relationship with Fair Trial Principles
The participatory role aligns with:
A fair trial is not only about rights of the accused but also about society’s interest in truth and justice.
Conclusion
The Supreme Court in Anees v. State Govt. of NCT has made it clear that trial judges must actively participate in proceedings to ensure justice. Under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, judges are empowered—and obligated—to intervene when necessary to bring relevant facts on record.
A judge who merely records testimony without scrutiny risks allowing injustice to prevail. Therefore, the participatory role of presiding judges is essential to maintain the integrity of trials, uphold fairness, and ensure that justice is not only done but is also seen to be done.
Case Scenario
Consider a criminal trial where a key witness gives vague and incomplete answers because the prosecutor fails to ask follow-up questions. Important facts about the manner of commission of the offence remain unclear. The defence remains silent, hoping to benefit from these gaps. If the judge merely records whatever is said without intervention, the truth may never come out. The question then arises: Is a trial judge expected to remain silent, or does the judge have a duty to actively ensure that the truth is discovered?
This issue lies at the heart of the participatory role of presiding judges, as recognised under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and clarified by the Supreme Court.
Participatory Role of Presiding Judges – Concept Explained
The participatory role of a presiding judge means that:
- A judge is not a passive observer
- A judge is not a “mere tape recorder” of witness statements
- A judge has a duty to actively guide the trial to ensure justice
This role is rooted in the idea that the court’s primary responsibility is to discover the truth and serve the ends of justice, not merely to referee between the prosecution and defence.
Supreme Court Decision: Anees v. State Govt. of NCT of Delhi
In Anees v. State Govt. of NCT, the Supreme Court strongly emphasized that:
- Trial judges must play a proactive and participatory role
- Judges should not mechanically record whatever witnesses say
- If the prosecutor fails to ask necessary questions, the judge must intervene
- The ultimate duty of the court is to arrive at the truth
The Court criticized the practice of judges acting as “mere tape recorders”, stating that such an approach defeats the purpose of a fair trial.
Statutory Basis under Bharatiya Sakshya Adhiniyam, 2023
Section 168 – Power of Judge to Ask Questions
Section 168 of the Bharatiya Sakshya Adhiniyam empower the presiding judge to:
- Ask any question to any witness
- At any stage of the trial
- In any form
- For the purpose of discovering relevant facts
This power exists independently of the parties and can be exercised even when:
- Prosecutor is negligent
- Defence chooses silence
- Important facts are being overlooked
Purpose of Judicial Participation
The participatory role serves the following purposes:
- Truth Discovery – Ensures that the real facts are brought on record
- Fair Trial – Protects both prosecution and defence from injustice
- Prevention of Miscarriage of Justice – Avoids convictions or acquittals based on incomplete evidence
- Judicial Responsibility – Reinforces the judge’s role as guardian of justice
Limits on the Participatory Role
While judges have wide powers, they must:
- Remain impartial
- Not assume the role of prosecutor or defence counsel
- Avoid filling gaps deliberately left for strategic reasons
- Use powers only in aid of justice, not to secure conviction
Critical Analysis
Strengths
- Prevents injustice due to prosecutorial lapses
- Ensures comprehensive examination of witnesses
- Enhances quality of fact-finding
- Upholds constitutional mandate of fair trial
- Reinforces public confidence in judiciary
Concerns
- Risk of judicial overreach
- Possibility of perceived bias
- Excessive intervention may prejudice defence
- Requires high judicial competence and restraint
Despite these concerns, the Supreme Court has consistently held that passivity is more dangerous than participation when justice is at stake.
10 Case Scenarios Illustrating Participatory Role of Judges
- Prosecutor forgets to ask about weapon – judge intervenes
- Witness gives vague timeline – judge seeks clarification
- Contradiction in testimony – judge questions witness
- Key fact omitted unintentionally – judge elicits details
- Prosecutor inexperienced – judge ensures essential facts emerge
- Defence silent to exploit gaps – judge neutralises injustice
- Witness confused – judge simplifies questions
- Trial court passive – appellate court criticises approach
- Judge exceeds role and appears biased – conviction set aside
- Balanced intervention – conviction upheld
Relationship with Fair Trial Principles
The participatory role aligns with:
- Article 21 of the Constitution (Right to Fair Trial)
- Principles of natural justice
- Sections governing examination and cross-examination of witnesses
A fair trial is not only about rights of the accused but also about society’s interest in truth and justice.
Conclusion
The Supreme Court in Anees v. State Govt. of NCT has made it clear that trial judges must actively participate in proceedings to ensure justice. Under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, judges are empowered—and obligated—to intervene when necessary to bring relevant facts on record.
A judge who merely records testimony without scrutiny risks allowing injustice to prevail. Therefore, the participatory role of presiding judges is essential to maintain the integrity of trials, uphold fairness, and ensure that justice is not only done but is also seen to be done.
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