- Published on
Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Production of Documents (Section 165)
Case Scenario
During a criminal trial, a witness is summoned by the court to produce certain official records that are in his possession. The witness appears before the court but raises objections, claiming that the documents are confidential and should not be produced. The judge must decide whether the documents should still be brought before the court, whether they can be inspected, and how objections regarding admissibility or privilege should be handled.
These issues are governed by Section 165 of the Bharatiya Sakshya Adhiniyam, 2023, which lays down detailed rules regarding the production, inspection, and handling of documents.
Section 165 – Production of Documents (Overview)
Section 165 deals with the production of documents before the court. Document production is a legal process through which:
may require a person to produce documents in his possession or control, so that relevant evidence may be obtained for deciding the case fairly.
Section 165(1): Duty to Produce Documents
Statutory Rule (Explained Simply)
When a witness is summoned to produce a document, he must:
This obligation exists:
However:
👉 A witness cannot refuse production on his own authority.
Key Principle under Section 165(1)
Production of a document and its admissibility are two distinct stages.
Section 165(2): Inspection of the Document by the Court
The court:
Important Exception
This protects sensitive state information.
Section 165(3): Translation of Documents
When necessary for deciding admissibility:
Confidentiality Safeguard
If the translator disobeys:
Special Proviso: Communications Between Ministers and the President
Section 165 expressly provides that:
This is an absolute protection and reflects:
Changes Introduced Under Section 165
This change:
Scope of Section 165
Obligation of the Witness
Role of the Court
Affairs of State
Court’s Power to Hold Preliminary Inquiry
The court is empowered to:
Limitation
The inquiry focuses on:
Liability for Non-Production
He may:
Critical Analysis
Strengths
Limitations
10 Illustrative Case Scenarios
Conclusion
Section 165 of the Bharatiya Sakshya Adhiniyam, 2023 provides a comprehensive framework governing the production, inspection, and handling of documents in judicial proceedings. It ensures that witnesses cannot unilaterally refuse to produce documents, while also safeguarding sensitive state communications and confidential material.
By clearly distinguishing between production and admissibility, and by granting courts the power to conduct preliminary inquiries into privilege claims, Section 165 strikes a careful balance between truth-seeking, procedural fairness, and national interest.
Production of Documents (Section 165)
Case Scenario
During a criminal trial, a witness is summoned by the court to produce certain official records that are in his possession. The witness appears before the court but raises objections, claiming that the documents are confidential and should not be produced. The judge must decide whether the documents should still be brought before the court, whether they can be inspected, and how objections regarding admissibility or privilege should be handled.
These issues are governed by Section 165 of the Bharatiya Sakshya Adhiniyam, 2023, which lays down detailed rules regarding the production, inspection, and handling of documents.
Section 165 – Production of Documents (Overview)
Section 165 deals with the production of documents before the court. Document production is a legal process through which:
- A party, or
- The court itself
may require a person to produce documents in his possession or control, so that relevant evidence may be obtained for deciding the case fairly.
Section 165(1): Duty to Produce Documents
Statutory Rule (Explained Simply)
When a witness is summoned to produce a document, he must:
- Bring the document to the court
- If the document is in his possession or power
This obligation exists:
- Even if objections are raised regarding production or admissibility
However:
- The validity of such objections is to be decided by the court, not by the witness
👉 A witness cannot refuse production on his own authority.
Key Principle under Section 165(1)
Production of a document and its admissibility are two distinct stages.
- First: The document must be produced
- Second: The court decides whether it can be admitted or relied upon
Section 165(2): Inspection of the Document by the Court
The court:
- May inspect the document if it thinks fit
- Or may take other evidence to decide its admissibility
Important Exception
- If the document relates to affairs of State, the court:
- Cannot inspect the document
- Must decide objections without looking into it
This protects sensitive state information.
Section 165(3): Translation of Documents
When necessary for deciding admissibility:
- The court may order translation of the document
Confidentiality Safeguard
- The court may direct the translator to:
- Keep the contents secret
If the translator disobeys:
- He commits an offence under Section 198 of the Bharatiya Nyaya Sanhita, 2023
Special Proviso: Communications Between Ministers and the President
Section 165 expressly provides that:
- The court shall not require production of:
- Communications between the Ministers and the President of India
This is an absolute protection and reflects:
- Constitutional confidentiality
- Executive privilege
Changes Introduced Under Section 165
- A new proviso has been added protecting:
- Communications between Ministers and the President of India
This change:
- Strengthens confidentiality
- Recognizes the sensitive nature of high-level constitutional communications
Scope of Section 165
Obligation of the Witness
- A person summoned must produce the document
- Failure to do so may attract legal consequences
Role of the Court
- The court decides:
- Whether a document should be produced
- Whether objections are valid
- Whether inspection is permissible
Affairs of State
- If privilege is claimed:
- The court cannot inspect the document
- The claim of privilege by the competent officer is conclusive
Court’s Power to Hold Preliminary Inquiry
The court is empowered to:
- Conduct a preliminary inquiry
- Examine:
- The officer claiming privilege
- The surrounding circumstances
Limitation
- The court cannot inspect the document itself if it relates to state affairs
The inquiry focuses on:
- Whether the document relates to unpublished state affairs
- Whether privilege is properly claimed under Section 126
Liability for Non-Production
- If a witness:
- Omits or refuses to produce a document without lawful justification
He may:
- Be held legally liable
- Face consequences under procedural law
Critical Analysis
Strengths
- Ensures access to relevant documentary evidence
- Prevents arbitrary refusal by witnesses
- Preserves judicial control over admissibility
- Balances transparency with state confidentiality
- Strengthens fair trial principles
Limitations
- Heavy reliance on executive privilege in state matters
- Limited judicial scrutiny over classified documents
- Potential misuse of privilege claims
10 Illustrative Case Scenarios
- Witness summoned to produce contract – must comply
- Objection raised – court decides validity
- Court inspects document to rule on admissibility
- State document claimed privileged – no inspection
- Translator ordered to maintain secrecy
- Translator leaks contents – criminal liability
- Officer claims state privilege – court conducts inquiry
- Court rejects frivolous objection
- Witness refuses production – held liable
- Minister–President communication – absolute protection
Conclusion
Section 165 of the Bharatiya Sakshya Adhiniyam, 2023 provides a comprehensive framework governing the production, inspection, and handling of documents in judicial proceedings. It ensures that witnesses cannot unilaterally refuse to produce documents, while also safeguarding sensitive state communications and confidential material.
By clearly distinguishing between production and admissibility, and by granting courts the power to conduct preliminary inquiries into privilege claims, Section 165 strikes a careful balance between truth-seeking, procedural fairness, and national interest.
- Published on
Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Giving, as Evidence, of a Document Called for and Produced on Notice (Section 166)
Case Scenario (Beginning as Required)
In a civil suit over financial transactions, the defendant believes that the plaintiff’s account books contain entries favourable to the defence. The defendant serves a notice on the plaintiff to produce those account books. During trial, the plaintiff produces the books, and the defendant inspects them. Later, when the defendant hesitates to place those books on record because some entries appear unfavourable, the plaintiff insists that the documents be given in evidence.
The question arises: Can the party who called for and inspected the document now refuse to put it in evidence?
Section 166 of the Bharatiya Sakshya Adhiniyam, 2023 squarely governs this situation.
Section 166 – Giving as Evidence a Document Called for and Produced on Notice
Statutory Rule (Paraphrased in Simple English)
When:
then:
In other words, once a party inspects a document obtained on notice, he cannot later refuse to rely on it as evidence if the producing party insists.
Rationale Behind Section 166
The rationale of this provision is based on fairness and procedural discipline:
The law does not permit
Scope of Section 166
Essentials for the Application of Section 166
Three essential conditions must be satisfied:
Evidentiary Value of a Document Produced Under Section 166
Does the Document Automatically Become Proof?
No. A document produced under Section 166:
The court must still examine:
Document Must Be Considered as a Whole
Once a document is admitted:
A party cannot:
Leading Case: Rajagopal Ayyangar v. Ramanuja Ayyangar
Facts (Simplified)
Held
The court held:
👉 The document becomes evidence only when produced before the court, and:
Key Legal Principles Emanating from Section 166
Strengths
Limitations
10 Illustrative Case Scenarios
Section 166 of the Bharatiya Sakshya Adhiniyam, 2023 embodies the principle that a party who calls for and inspects a document must accept the legal consequences of that inspection. If the producing party so demands, the document must be given in evidence.
At the same time, the section carefully preserves judicial scrutiny by requiring that the document’s relevancy, admissibility, and truth be independently examined. By discouraging selective reliance and ensuring openness, Section 166 strengthens fairness and integrity in judicial proceedings.
Giving, as Evidence, of a Document Called for and Produced on Notice (Section 166)
Case Scenario (Beginning as Required)
In a civil suit over financial transactions, the defendant believes that the plaintiff’s account books contain entries favourable to the defence. The defendant serves a notice on the plaintiff to produce those account books. During trial, the plaintiff produces the books, and the defendant inspects them. Later, when the defendant hesitates to place those books on record because some entries appear unfavourable, the plaintiff insists that the documents be given in evidence.
The question arises: Can the party who called for and inspected the document now refuse to put it in evidence?
Section 166 of the Bharatiya Sakshya Adhiniyam, 2023 squarely governs this situation.
Section 166 – Giving as Evidence a Document Called for and Produced on Notice
Statutory Rule (Paraphrased in Simple English)
When:
- One party gives notice to the other party to produce a document, and
- The document is produced and inspected by the party who called for it,
then:
- The party who called for and inspected the document must give it in evidence
- If the party producing the document demands that it be so given
In other words, once a party inspects a document obtained on notice, he cannot later refuse to rely on it as evidence if the producing party insists.
Rationale Behind Section 166
The rationale of this provision is based on fairness and procedural discipline:
- A party who compels production of a document must:
- Take the risk of its contents
- Accept that the document may operate against him
The law does not permit
- Selective use of documents
- Tactical inspection followed by suppression
- Civil proceedings
- Criminal trials
Scope of Section 166
- Applies when documents are produced at the instance of the opposite party
- Prevents misuse of the right to call for documents
- Ensures transparency in judicial proceedings
- If the document has already been produced before the court by any party,
👉 Section 166 does not apply.
Essentials for the Application of Section 166
Three essential conditions must be satisfied:
- Notice to Produce
- One party must require the other party to produce a document
- Actual Production and Inspection
- The document must be produced and inspected by the party who sought it
- Demand by Producing Party
- The party producing the document must demand that it be given in evidence
Evidentiary Value of a Document Produced Under Section 166
Does the Document Automatically Become Proof?
No. A document produced under Section 166:
- Does not automatically prove its contents
- Does not become conclusive evidence
The court must still examine:
- Relevancy
- Admissibility
- Proof of genuineness and truth
Document Must Be Considered as a Whole
Once a document is admitted:
- It becomes evidence against both parties
- It must be read as a whole, not selectively
A party cannot:
- Rely on favourable portions
- Reject unfavourable portions
Leading Case: Rajagopal Ayyangar v. Ramanuja Ayyangar
Facts (Simplified)
- Plaintiff sued on the basis of entries in his account books
- Defendants summoned those account books under this provision
- Defendants inspected the books and found relevant entries
- Defendants sought to cross-examine the plaintiff on genuineness
- Plaintiff objected
Held
The court held:
- Plaintiff had no right to object
- The mere production of the document does not mean its contents are true
- Cross-examination is necessary to test genuineness
👉 The document becomes evidence only when produced before the court, and:
- The court decides relevancy and admissibility
- The burden of proof lies on the party asserting its truth
Key Legal Principles Emanating from Section 166
- A party calling for a document:
- Cannot inspect and then suppress it
- Truth of the document:
- Can be challenged
- Can be disproved by cross-examination
- Court retains control over:
- Admission
- Proof
- Evaluation of evidence
Strengths
- Prevents selective and unfair use of documents
- Encourages procedural fairness
- Discourages fishing expeditions
- Maintains integrity of evidence
- Promotes transparency in trials
Limitations
- May operate harshly if inspection reveals unexpected prejudice
- Depends on proper judicial supervision
- Does not dispense with need for proof, causing delay
10 Illustrative Case Scenarios
- Party inspects contract and must produce it
- Inspection reveals unfavourable clause – cannot suppress
- Producing party insists on admission – court allows
- Document already on record – Section 166 inapplicable
- Cross-examination allowed on genuineness
- Document read as a whole
- Partial reliance rejected by court
- Burden of proof examined independently
- Fair trial ensured by transparency
- Tactical misuse prevented
Section 166 of the Bharatiya Sakshya Adhiniyam, 2023 embodies the principle that a party who calls for and inspects a document must accept the legal consequences of that inspection. If the producing party so demands, the document must be given in evidence.
At the same time, the section carefully preserves judicial scrutiny by requiring that the document’s relevancy, admissibility, and truth be independently examined. By discouraging selective reliance and ensuring openness, Section 166 strengthens fairness and integrity in judicial proceedings.
- Published on
Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Using as Evidence a Document Whose Production Was Refused on Notice (Section 167)
Case Scenario
Suppose A files a civil suit against B based on a written agreement. A knows that the original agreement is in B’s possession and therefore serves B with a legal notice to produce the document in court. During the trial, when the court calls upon B to produce the agreement, B deliberately refuses. As a result, A is permitted to give secondary evidence of the contents of the agreement. Later, B attempts to produce the original document to contradict A’s evidence and argue that the agreement was not properly stamped.
The question arises: Can B now rely on the very document he earlier refused to produce?
Section 167 of the Bharatiya Sakshya Adhiniyam, 2023 provides a clear answer.
Section 167 – Using as Evidence a Document Whose Production Was Refused on Notice
Statutory Rule (Paraphrased in Simple English)
When a party has been given notice to produce a document and refuses to produce it, that party cannot later use that document as evidence, unless:
This rule applies irrespective of the purpose for which the document is later sought to be produced.
Illustrative Example (Explained Simply)
Scope of Section 167
Meaning and Operation
Rationale Behind the Provision
The principle underlying Section 167 is:
A party cannot take advantage of its own refusal to cooperate with the court.
The law discourages:
Thus, refusal to produce a document results in a legal disability.
Consent of Opposite Party or Permission of Court
The disability imposed by Section 167 is not absolute. The document may still be used if:
Presumptions Arising from Non-Production of Documents
1. Presumption as to Proper Execution and Attestation (Section 91)
When a document is not produced after notice:
2. Presumption of Unfavourable Contents (Section 119)
Another important presumption is that:
This is based on the logic that:
Legal Effect of Section 167
Strengths
Limitations
Overall, the provision strikes a balance between fairness and procedural discipline.
10 Illustrative Case Scenarios
Conclusion
Section 167 of the Bharatiya Sakshya Adhiniyam, 2023 ensures that no party benefits from withholding evidence after being duly called upon to produce it. A party who refuses to produce a document on notice cannot later rely on that document as evidence, except with consent or court permission.
The provision operates both as a procedural safeguard and a penalty against unfair conduct, supported by strong legal presumptions against the defaulting party. By enforcing cooperation and discouraging suppression of evidence, Section 167 strengthens the fairness, integrity, and truth-seeking function of judicial proceedings.
Using as Evidence a Document Whose Production Was Refused on Notice (Section 167)
Case Scenario
Suppose A files a civil suit against B based on a written agreement. A knows that the original agreement is in B’s possession and therefore serves B with a legal notice to produce the document in court. During the trial, when the court calls upon B to produce the agreement, B deliberately refuses. As a result, A is permitted to give secondary evidence of the contents of the agreement. Later, B attempts to produce the original document to contradict A’s evidence and argue that the agreement was not properly stamped.
The question arises: Can B now rely on the very document he earlier refused to produce?
Section 167 of the Bharatiya Sakshya Adhiniyam, 2023 provides a clear answer.
Section 167 – Using as Evidence a Document Whose Production Was Refused on Notice
Statutory Rule (Paraphrased in Simple English)
When a party has been given notice to produce a document and refuses to produce it, that party cannot later use that document as evidence, unless:
- The other party gives consent, or
- The court grants permission
This rule applies irrespective of the purpose for which the document is later sought to be produced.
Illustrative Example (Explained Simply)
- A sues B on an agreement.
- A gives B notice to produce the agreement.
- At trial, B refuses to produce it.
- A gives secondary evidence of its contents.
- B later wants to produce the original agreement:
- To contradict A’s secondary evidence, or
- To show that the agreement is unstamped
Scope of Section 167
Meaning and Operation
- If a party in possession of a document:
- Is given notice to produce it, and
- Refuses to produce it when required,
- Loses the right to later rely on that document as evidence
- Cannot use it to:
- Contradict secondary evidence, or
- Improve their own case
Rationale Behind the Provision
The principle underlying Section 167 is:
A party cannot take advantage of its own refusal to cooperate with the court.
The law discourages:
- Suppression of evidence
- Strategic non-production
- Abuse of procedural fairness
Thus, refusal to produce a document results in a legal disability.
Consent of Opposite Party or Permission of Court
The disability imposed by Section 167 is not absolute. The document may still be used if:
- The opposing party consents, or
- The court permits its production in the interests of justice
Presumptions Arising from Non-Production of Documents
1. Presumption as to Proper Execution and Attestation (Section 91)
When a document is not produced after notice:
- The court may presume that:
- The document was properly attested
- The document was duly stamped
- The document was executed in accordance with law
2. Presumption of Unfavourable Contents (Section 119)
Another important presumption is that:
- The contents of the document are unfavourable to the party who refuses to produce it
This is based on the logic that:
- If the document were favourable, it would have been produced
Legal Effect of Section 167
- Prevents a party from:
- First suppressing evidence, and
- Later selectively using it for advantage
- Protects the other party who relied on secondary evidence in good faith
- Strengthens the integrity of the judicial process
Strengths
- Discourages unfair tactics and suppression of evidence
- Promotes transparency and cooperation in trials
- Protects the credibility of secondary evidence
- Upholds fairness and equality between parties
- Ensures procedural discipline
Limitations
- May operate harshly in cases of genuine mistake
- Relies on judicial discretion for relaxation
- Requires careful application to avoid injustice
Overall, the provision strikes a balance between fairness and procedural discipline.
10 Illustrative Case Scenarios
- Party refuses to produce contract – later barred from using it
- Secondary evidence admitted due to refusal
- Original document later offered – court rejects it
- Court permits production in exceptional circumstances
- Non-production leads to adverse presumption
- Withholding party suffers evidentiary disadvantage
- Consent of opposite party allows later use
- Strategic suppression penalized
- Honest refusal corrected by court’s permission
- Fair trial preserved through judicial control
Conclusion
Section 167 of the Bharatiya Sakshya Adhiniyam, 2023 ensures that no party benefits from withholding evidence after being duly called upon to produce it. A party who refuses to produce a document on notice cannot later rely on that document as evidence, except with consent or court permission.
The provision operates both as a procedural safeguard and a penalty against unfair conduct, supported by strong legal presumptions against the defaulting party. By enforcing cooperation and discouraging suppression of evidence, Section 167 strengthens the fairness, integrity, and truth-seeking function of judicial proceedings.
- Published on
Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Section 168 vis-à-vis Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Full Form / Full Terms of BNSS
BNSS stands for Bharatiya Nagarik Suraksha Sanhita, 2023.
It is the criminal procedural law of India which has replaced the Code of Criminal Procedure, 1973 (CrPC). The BNSS governs the procedure for investigation, inquiry, trial, summoning and examination of witnesses, and delivery of criminal justice.
Case Scenario
Assume a criminal trial where the prosecution examines several witnesses, but during their testimony it becomes clear that an important person who witnessed the incident was never summoned. Further, some documents referred to by the witnesses were not produced. The prosecution overlooks these gaps, and the defence remains silent to exploit them. In such a situation, the trial court must decide whether it can intervene on its own to uncover the truth.
This is where Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) operate together.
Section 168 of Bharatiya Sakshya Adhiniyam, 2023 – Explained
Nature of Power
Section 168 empowers the presiding judge to:
The purpose of this power is to discover relevant facts necessary for a just decision.
Key Feature
Section 348 of Bharatiya Nagarik Suraksha Sanhita, 2023 – Explained
Nature of Power
Section 348 of BNSS authorizes the court to:
This power can be exercised at any stage of the trial if the court believes that such evidence is essential for a just decision.
Combined Practical Application
In real trial practice, Sections 168 BSA and 348 BNSS are often used together:
Together, they ensure:
Judicial Discretion and Its Importance
The powers under these Sections are discretionary, not mandatory. However:
Critical Analysis
Strengths
Concerns
Despite these concerns, judicial passivity is far more harmful than careful intervention.
10 Illustrative Case Scenarios
Comparative Understanding of Section 168 BSA and Section 348 BNSS (Note Form)
Full Form
1. Nature of the Provisions
2. Object and Purpose
3. Powers Conferred on the Court
4. Stage of Application
5. Scope of Judicial Discretion
6. Role in Trial Process
7. Relationship Between the Two Sections
8. Judicial Role Emphasized
9. Limitations
10. Practical Significance
11. Overall Impact on Fair Trial
Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) together form a powerful judicial mechanism to ensure that truth, fairness, and justice prevail in criminal trials. While Section 168 empowers the judge to extract relevant facts and order document production, Section 348 provides the procedural authority to summon and re-examine witnesses.
When used harmoniously and with restraint, these provisions reinforce the court’s duty to conduct a fair, complete, and meaningful trial—ensuring that justice is not sacrificed due to procedural lapses or party negligence.
Section 168 vis-à-vis Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Full Form / Full Terms of BNSS
BNSS stands for Bharatiya Nagarik Suraksha Sanhita, 2023.
It is the criminal procedural law of India which has replaced the Code of Criminal Procedure, 1973 (CrPC). The BNSS governs the procedure for investigation, inquiry, trial, summoning and examination of witnesses, and delivery of criminal justice.
Case Scenario
Assume a criminal trial where the prosecution examines several witnesses, but during their testimony it becomes clear that an important person who witnessed the incident was never summoned. Further, some documents referred to by the witnesses were not produced. The prosecution overlooks these gaps, and the defence remains silent to exploit them. In such a situation, the trial court must decide whether it can intervene on its own to uncover the truth.
This is where Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) operate together.
Section 168 of Bharatiya Sakshya Adhiniyam, 2023 – Explained
Nature of Power
Section 168 empowers the presiding judge to:
- Put any question to any witness
- At any stage of the trial
- In any form
- Order the production of any document or thing
The purpose of this power is to discover relevant facts necessary for a just decision.
Key Feature
- This power is independent of the prosecution and defence
- The judge may exercise it even if parties fail to act
Section 348 of Bharatiya Nagarik Suraksha Sanhita, 2023 – Explained
Nature of Power
Section 348 of BNSS authorizes the court to:
- Summon any person as a witness
- Examine any person not previously examined
- Recall and re-examine any witness already examined
This power can be exercised at any stage of the trial if the court believes that such evidence is essential for a just decision.
Combined Practical Application
In real trial practice, Sections 168 BSA and 348 BNSS are often used together:
- The court may use Section 168 to:
- Ask clarifying questions
- Order production of missing documents
- The court may then invoke Section 348 BNSS to:
- Summon new witnesses
- Recall or re-examine existing witnesses
Together, they ensure:
- No vital evidence is omitted
- No decision is based on incomplete material
- Justice is not defeated by technical lapses
Judicial Discretion and Its Importance
The powers under these Sections are discretionary, not mandatory. However:
- Discretion must be exercised judiciously
- Courts must avoid acting mechanically or passively
- Powers must be used only to advance justice, not to fill prosecution loopholes unfairly
Critical Analysis
Strengths
- Ensures discovery of truth
- Prevents miscarriage of justice
- Strengthens active judicial role
- Protects fair trial rights
- Enhances credibility of verdicts
Concerns
- Risk of judicial overreach
- Possible delay in proceedings
- Danger of appearing partisan if misused
- Requires judicial maturity and restraint
Despite these concerns, judicial passivity is far more harmful than careful intervention.
10 Illustrative Case Scenarios
- Judge asks missing questions under Section 168
- Court summons omitted eyewitness under Section 348
- Document ordered to be produced mid-trial
- Witness recalled for clarification
- Prosecution oversight cured by court intervention
- Defence benefits from complete fact-finding
- Passive court leads to acquittal on appeal
- Balanced use results in conviction upheld
- Overuse leads to bias allegation
- Proper use ensures justice
Comparative Understanding of Section 168 BSA and Section 348 BNSS (Note Form)
Full Form
- BSA: Bharatiya Sakshya Adhiniyam, 2023
- BNSS: Bharatiya Nagarik Suraksha Sanhita, 2023
1. Nature of the Provisions
- Section 168 (BSA)
- Evidentiary provision
- Deals with powers of the judge during examination of witnesses
- Section 348 (BNSS)
- Procedural provision
- Deals with summoning, recalling, and re-examining witnesses
2. Object and Purpose
- Section 168 (BSA)
- To enable the judge to discover the truth
- To ensure that relevant facts are brought on record
- Section 348 (BNSS)
- To ensure that essential witnesses are examined
- To complete the evidentiary chain for a just decision
3. Powers Conferred on the Court
- Section 168 (BSA)
- Power to ask any question to any witness
- Power to order production of documents or things
- Power exercisable at any stage of the trial
- Section 348 (BNSS)
- Power to summon any person as a witness
- Power to examine persons not earlier examined
- Power to recall and re-examine witnesses
4. Stage of Application
- Section 168 (BSA)
- Can be exercised at any stage of trial
- During examination, cross-examination, or re-examination
- Section 348 (BNSS)
- Can be exercised at any stage before conclusion of trial
- Generally invoked when evidence is found incomplete
5. Scope of Judicial Discretion
- Section 168 (BSA)
- Wide discretion to ask relevant or even irrelevant questions
- Subject to safeguards against self-incrimination
- Section 348 (BNSS)
- Discretion to decide necessity of summoning or recalling witnesses
- Must be exercised judiciously and not arbitrarily
6. Role in Trial Process
- Section 168 (BSA)
- Helps in clarification of testimony
- Assists in removing ambiguity in evidence
- Section 348 (BNSS)
- Helps in filling gaps in witness testimony
- Ensures all vital witnesses are examined
7. Relationship Between the Two Sections
- Section 168 (BSA)
- Operates internally within the evidence already on record
- Section 348 (BNSS)
- Operates externally by bringing new or recalled witnesses
- Combined Use
- Section 168 extracts truth from witnesses
- Section 348 ensures presence of necessary witnesses
8. Judicial Role Emphasized
- Section 168 (BSA)
- Active participation of judge in questioning
- Section 348 (BNSS)
- Active participation of judge in managing witness examination
9. Limitations
- Section 168 (BSA)
- Judge must remain impartial
- Cannot compel self-incriminating answers
- Section 348 (BNSS)
- Cannot be used to unfairly assist prosecution
- Cannot reopen trial after conclusion of evidence
10. Practical Significance
- Section 168 (BSA)
- Prevents miscarriage of justice due to unclear testimony
- Section 348 (BNSS)
- Prevents miscarriage of justice due to absence of crucial witnesses
11. Overall Impact on Fair Trial
- Section 168 (BSA)
- Strengthens truth-finding function of the court
- Section 348 (BNSS)
- Strengthens completeness and reliability of evidence
- Conclusion
Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) together form a powerful judicial mechanism to ensure that truth, fairness, and justice prevail in criminal trials. While Section 168 empowers the judge to extract relevant facts and order document production, Section 348 provides the procedural authority to summon and re-examine witnesses.
When used harmoniously and with restraint, these provisions reinforce the court’s duty to conduct a fair, complete, and meaningful trial—ensuring that justice is not sacrificed due to procedural lapses or party negligence.
- Published on
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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Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 – Powers and Duties of a Presiding Judge in a Criminal Trial (Section 168 BSA)
Case Scenario
Imagine a murder trial where crucial witnesses give incomplete statements. The prosecutor fails to properly examine them, and the defence also does not cross-examine effectively. The trial judge merely records what is said without asking clarifying questions. The accused is convicted based on weak circumstantial evidence. On appeal, it becomes evident that the truth was never fully explored. The central question arises: Was the presiding judge justified in remaining passive, or did he fail in his judicial duty?
This issue highlights the powers and duties of a presiding judge in a criminal trial, as emphasized by the Supreme Court under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023.
Powers and Duties of a Presiding Judge – Concept Explained
A presiding judge in a criminal trial:
The judge’s primary duty is to ensure a fair trial by actively engaging in the proceedings, while maintaining strict impartiality.
Supreme Court Ruling: Ram Chander v. State of Haryana
In Ram Chander v. State of Haryana, the Supreme Court held that:
However, the Court laid down clear limits on this participation.
Judicial Guidelines from the Case
The presiding judge must:
The Court described the judge as::
Statutory Basis – Section 168 of Bharatiya Sakshya Adhiniyam, 2023
Section 168 empowers the presiding judge to:
Recent Supreme Court Reminder: Dinesh Kumar v. State of Haryana
In Dinesh Kumar v. State of Haryana, the Supreme Court:
Court’s Observations
The Court reiterated that Section 168 BSA empowers and obligates judges to intervene when necessary.
Failure of Judicial Duty and Its Consequences
Because:
The Supreme Court:
Duties of a Presiding Judge Summarized
A presiding judge must:
Critical Analysis
Strengths of Judicial Participation
Risks and Limitations
Thus, participation must be balanced and judicious.
10 Illustrative Case Scenarios
Relationship with Fair Trial and Natural Justice
The participatory role of a presiding judge supports:
Justice is a collective effort, but the judge is the guiding force.
Conclusion
The Supreme Court in Ram Chander v. State of Haryana and Dinesh Kumar v. State of Haryana has firmly established that a presiding judge in a criminal trial must not behave like a passive spectator. Under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, the judge has both the power and duty to actively participate in proceedings to uncover the truth.
At the same time, this power must be exercised with restraint, fairness, and neutrality. A judge who fails to engage meaningfully risks denying the accused a fair trial and allowing injustice to prevail. Ultimately, justice is a team effort, and the judge, as the captain, must ensure that the trial moves forward in harmony toward truth and fairness.
Case Scenario
Imagine a murder trial where crucial witnesses give incomplete statements. The prosecutor fails to properly examine them, and the defence also does not cross-examine effectively. The trial judge merely records what is said without asking clarifying questions. The accused is convicted based on weak circumstantial evidence. On appeal, it becomes evident that the truth was never fully explored. The central question arises: Was the presiding judge justified in remaining passive, or did he fail in his judicial duty?
This issue highlights the powers and duties of a presiding judge in a criminal trial, as emphasized by the Supreme Court under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023.
Powers and Duties of a Presiding Judge – Concept Explained
A presiding judge in a criminal trial:
- Is not a silent spectator
- Is not a mere recording machine
- Is an active participant entrusted with discovering the truth
The judge’s primary duty is to ensure a fair trial by actively engaging in the proceedings, while maintaining strict impartiality.
Supreme Court Ruling: Ram Chander v. State of Haryana
In Ram Chander v. State of Haryana, the Supreme Court held that:
- The duty of a trial judge is not to merely watch proceedings
- The judge must participate by showing intelligent and active interest
- The judge may put questions to witnesses to ascertain the truth
However, the Court laid down clear limits on this participation.
Judicial Guidelines from the Case
The presiding judge must:
- Not encroach upon the role of the prosecutor or defence counsel
- Avoid any sign of bias or partisanship
- Not intimidate, frighten, or bully witnesses
- Carry both prosecution and defence together
The Court described the judge as::
- The captain of the team, where prosecution and defence are team members
- Like a conductor of a choir, harmonizing all participants so justice is achieved
Statutory Basis – Section 168 of Bharatiya Sakshya Adhiniyam, 2023
Section 168 empowers the presiding judge to:
- Put questions to any witness
- At any stage of the trial
- In any form necessary
- For the purpose of discovering relevant facts
Recent Supreme Court Reminder: Dinesh Kumar v. State of Haryana
In Dinesh Kumar v. State of Haryana, the Supreme Court:
- Set aside the conviction for murder
- Found that the “last seen” evidence did not complete the chain of circumstances
Court’s Observations
- Material witnesses were not properly examined or cross-examined
- The trial court acted as a passive umpire
- The accused were denied a fair trial
- The truth could not be elicited
The Court reiterated that Section 168 BSA empowers and obligates judges to intervene when necessary.
Failure of Judicial Duty and Its Consequences
Because:
- The trial judge failed to exercise powers under Section 168
- Essential facts were not brought on record
- Circumstantial evidence remained incomplete
The Supreme Court:
- Granted benefit of doubt to the accused
- Acquitted them of all charges
- Directed their immediate release
Duties of a Presiding Judge Summarized
A presiding judge must:
- Actively monitor trial proceedings
- Ask clarificatory questions when needed
- Ensure all material evidence is examined
- Protect the rights of the accused
- Maintain neutrality and fairness
- Prevent injustice due to procedural lapses
Critical Analysis
Strengths of Judicial Participation
- Helps uncover the truth
- Prevents wrongful convictions
- Protects fair trial rights
- Improves quality of justice delivery
- Enhances public trust in courts
Risks and Limitations
- Risk of judicial overreach
- Possibility of perceived bias
- Excessive intervention may prejudice defence
- Requires judicial restraint and skill
Thus, participation must be balanced and judicious.
10 Illustrative Case Scenarios
- Judge clarifies gaps in witness testimony
- Prosecutor omits key question – judge intervenes
- Defence silent – judge ensures fairness
- Judge intimidates witness – conviction overturned
- Passive judge – appellate court criticizes trial
- Balanced intervention – conviction upheld
- Circumstantial evidence incomplete – acquittal granted
- Judge acts like prosecutor – bias alleged
- Judge harmonizes proceedings – fair trial ensured
- Failure to exercise Section 168 – miscarriage of justice
Relationship with Fair Trial and Natural Justice
The participatory role of a presiding judge supports:
- Article 21 of the Constitution
- Principles of natural justice
- Rights of the accused and interests of society
Justice is a collective effort, but the judge is the guiding force.
Conclusion
The Supreme Court in Ram Chander v. State of Haryana and Dinesh Kumar v. State of Haryana has firmly established that a presiding judge in a criminal trial must not behave like a passive spectator. Under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, the judge has both the power and duty to actively participate in proceedings to uncover the truth.
At the same time, this power must be exercised with restraint, fairness, and neutrality. A judge who fails to engage meaningfully risks denying the accused a fair trial and allowing injustice to prevail. Ultimately, justice is a team effort, and the judge, as the captain, must ensure that the trial moves forward in harmony toward truth and fairness.
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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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Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023– A New Framework for Evidence in India
Introduction
The Bharatiya Sakshya Adhiniyam represents a major transformation in India’s evidence law, replacing the colonial-era Indian Evidence Act, 1872. The new law has been designed to reflect constitutional values, technological advancements, and the contemporary needs of the Indian judicial system. One of the most significant aspects of this transition is the omission of certain outdated provisions that no longer align with India’s legal, political, and social realities.
Overview of the Omitted Sections
Under the Indian Evidence Act, 1872, several sections were framed in the context of British rule, jury trials, and older communication systems. The Bharatiya Sakshya Adhiniyam consciously removes these provisions to modernize the law. The omitted sections include:
Explanation: Why These Provisions Were Removed
The omission of these sections is not accidental but deliberate and reform-oriented:
Extension: How the Bharatiya Sakshya Adhiniyam Improves Evidence Law
The Bharatiya Sakshya Adhiniyam goes beyond omission—it rebuilds evidence law for modern India:
The Bharatiya Sakshya Adhiniyam marks a decisive break from colonial-era evidence law. By omitting outdated sections of the Indian Evidence Act, 1872, it modernizes legal principles, embraces technological change, and strengthens India’s judicial sovereignty. This reform ensures that evidence law remains relevant, effective, and aligned with the constitutional and societal realities of contemporary India.
Introduction
The Bharatiya Sakshya Adhiniyam represents a major transformation in India’s evidence law, replacing the colonial-era Indian Evidence Act, 1872. The new law has been designed to reflect constitutional values, technological advancements, and the contemporary needs of the Indian judicial system. One of the most significant aspects of this transition is the omission of certain outdated provisions that no longer align with India’s legal, political, and social realities.
Overview of the Omitted Sections
Under the Indian Evidence Act, 1872, several sections were framed in the context of British rule, jury trials, and older communication systems. The Bharatiya Sakshya Adhiniyam consciously removes these provisions to modernize the law. The omitted sections include:
- Interpretation Clause defining “India”
Earlier, “India” was defined in a manner that excluded certain territories based on colonial constitutional arrangements. This definition has now been rendered unnecessary. - Oral admissions regarding electronic records
The old law treated oral statements about electronic records as generally irrelevant unless the authenticity of the electronic record itself was questioned. - Presumption regarding foreign (English or Irish) documents
Courts were allowed to presume the authenticity of documents admissible in England or Ireland without proof of seal or signature. - Presumption as to telegraphic messages
Courts could presume that a telegram sent from a telegraph office corresponded with the message delivered, though not the identity of the sender. - Proof of cession of territory
Notifications in the British-era Official Gazette regarding transfer of territory were treated as conclusive proof of valid territorial cession. - Power of jury or assessors to put questions
This provision allowed juries or assessors to ask questions to witnesses through the judge.
Explanation: Why These Provisions Were Removed
The omission of these sections is not accidental but deliberate and reform-oriented:
- End of Colonial Legacy
Provisions referring to England, Ireland, British territory, and colonial governance have no relevance in a sovereign democratic republic. - Abolition of Jury Trials
Since jury trials were abolished in India decades ago, provisions empowering juries or assessors to question witnesses became redundant. - Technological Evolution
Telegraphs have been replaced by digital communication, emails, messaging platforms, and cloud-based records. The new law focuses on electronic and digital evidence rather than outdated technologies. - Constitutional Clarity
The definition of India and issues related to territorial sovereignty are now clearly governed by the Constitution of India, making older evidentiary presumptions unnecessary.
Extension: How the Bharatiya Sakshya Adhiniyam Improves Evidence Law
The Bharatiya Sakshya Adhiniyam goes beyond omission—it rebuilds evidence law for modern India:
- Technology-Oriented Evidence Framework
The new law gives greater recognition to electronic records, digital documents, and modern modes of communication, ensuring courts can effectively deal with cybercrime and digital transactions. - Simplification and Clarity
By removing obsolete provisions, the law becomes easier to interpret, reducing confusion for judges, lawyers, and litigants. - Alignment with Indian Judicial Practice
The law now reflects actual courtroom realities in India, where judges play an active role in evaluating evidence without juries. - Efficiency and Speed in Trials
Clearer rules on admissibility and presumptions help in faster adjudication, contributing to judicial efficiency. - Sovereign and Indigenous Legal Identity
The Bharatiya Sakshya Adhiniyam symbolizes India’s shift from colonial legal structures to a homegrown, future-ready legal system.
The Bharatiya Sakshya Adhiniyam marks a decisive break from colonial-era evidence law. By omitting outdated sections of the Indian Evidence Act, 1872, it modernizes legal principles, embraces technological change, and strengthens India’s judicial sovereignty. This reform ensures that evidence law remains relevant, effective, and aligned with the constitutional and societal realities of contemporary India.
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Evidence Law – Bharatiya Sakshya Adhiniyam – Repeal, Savings, and Transitional Justice s170 Bharatiya Sakshya Adhiniyam Act 2023
Introduction
Section 170 of the Bharatiya Sakshya Adhiniyam formally brings an end to the operation of the Indian Evidence Act, 1872, a statute that governed evidentiary principles in India for more than 150 years. However, recognizing the importance of legal continuity and fairness, the legislature has incorporated a savings clause to protect ongoing legal processes. This section ensures that while the old law is repealed, justice is not disrupted by abrupt legal transitions.
Explanation of Section 170
Detailed Explanation
1. Purpose of Repeal
The repeal clause signifies a complete legislative replacement, not a partial amendment. It reflects the intent of Parliament to modernize evidence law in line with constitutional values, digital realities, and contemporary judicial practices.
2. Importance of the Savings Clause
The savings provision serves as a transitional safeguard. Without it, ongoing cases would face uncertainty regarding admissibility of evidence, standards of proof, and procedural fairness. The clause ensures:
3. Doctrine of Prospective Application
Section 170 reinforces the principle that procedural laws, though generally retrospective, should not unsettle ongoing proceedings unless explicitly stated. Here, the legislature has consciously chosen prospective application of the Bharatiya Sakshya Adhiniyam.
Critical Analysis of Section 170
Strengths
Limitations and Concerns
Case Scenarios Illustrating Section 170 (10 Examples)
1. Criminal Trial at Evidence Stage
A murder trial where witness examination began before the new Adhiniyam commenced will continue under the Indian Evidence Act, 1872.
2. Cybercrime Case Filed After Commencement
A cyber fraud case registered after the new law comes into force will be governed by the Bharatiya Sakshya Adhiniyam.
3. Appeal Pending in High Court
An appeal challenging conviction, pending on the date of commencement, will apply the old Evidence Act.
4. Investigation Stage Case
If an investigation was ongoing before the new law commenced, evidentiary rules applicable at that stage remain unchanged.
5. Civil Suit on Contractual Dispute
A civil suit filed before commencement continues under the 1872 Act, even if evidence is recorded later.
6. Fresh Suit After Repeal
A property dispute filed after the repeal must follow the new evidentiary rules.
7. Revision Petition Pending
A criminal revision pending before a Sessions Court continues under the old law.
8. Digital Evidence in Ongoing Case
Even if the new law has better provisions for electronic evidence, an ongoing trial cannot switch to the new standards.
9. Special Court Proceedings
Cases pending before special courts (NDPS, PMLA, etc.) will continue under the old Evidence Act if instituted earlier.
10. Retrial Ordered After Commencement
If a retrial is ordered in a case originally filed before commencement, courts may still apply the old law due to the saving clause.
Comparative Insight: Repeal with Savings in Indian Legislation
Section 170 follows a well-established legislative pattern seen in:
This approach reflects legislative prudence, balancing reform with continuity.
Effects on Court Proceedings
1. Procedural Continuity in Ongoing Cases
Courts are not required to restart trials, re-record evidence, or reassess admissibility already determined. This avoids:
2. Parallel Operation of Two Evidence Laws
For a transitional period, courts will adjudicate:
This requires judges to apply case-specific evidentiary regimes, increasing judicial responsibility but preserving fairness.
3. Judicial Interpretation Challenges
Courts must carefully distinguish:
Errors in classification could lead to appeals or constitutional challenges.
4. Impact on Case Management and Scheduling
Judicial officers must:
This may initially slow proceedings but stabilizes over time.
Effects on Parties to a Proceeding
1. Protection of Legitimate Expectations
Parties prepared their cases based on the Indian Evidence Act, 1872. Section 170 ensures:
2. Equality Between Litigants
Both sides in a pending case remain subject to the same evidentiary framework, avoiding advantage or prejudice to either party.
3. Avoidance of Retrospective Hardship
If the new law were applied retrospectively:
4. Strategic Considerations for Litigants
Litigants and lawyers must now consider:
This affects litigation planning, especially in borderline cases.
Effects on Specific Types of Proceedings
Criminal Proceedings
Civil Proceedings
Appeals and Revisions
Institutional and Systemic Effects
1. Judicial Training and Capacity Building
Judges, prosecutors, and lawyers must remain conversant with:
2. Reduction of Constitutional Challenges
By preventing retrospective application, Section 170 minimizes:
3. Strengthening Rule of Law
The provision demonstrates that legal reform in India is evolutionary, not disruptive, reinforcing public trust in the justice system.
Critical Perspective on Practical Impact
Positive Effects
Potential Drawbacks
Despite these challenges, the balance tilts strongly in favor of justice and certainty.
Conclusion
Section 170 of the Bharatiya Sakshya Adhiniyam has a deep and practical impact on court proceedings and parties to litigation. By preserving pending cases under the Indian Evidence Act, 1872, it safeguards fairness, legal certainty, and judicial efficiency. While courts and litigants must navigate a temporary dual-law environment, the provision ensures that the transition to a modern evidence regime is orderly, just, and constitutionally sound.
Introduction
Section 170 of the Bharatiya Sakshya Adhiniyam formally brings an end to the operation of the Indian Evidence Act, 1872, a statute that governed evidentiary principles in India for more than 150 years. However, recognizing the importance of legal continuity and fairness, the legislature has incorporated a savings clause to protect ongoing legal processes. This section ensures that while the old law is repealed, justice is not disrupted by abrupt legal transitions.
Explanation of Section 170
- Repeal of the Indian Evidence Act, 1872
- Saving of Pending Proceedings
Detailed Explanation
1. Purpose of Repeal
The repeal clause signifies a complete legislative replacement, not a partial amendment. It reflects the intent of Parliament to modernize evidence law in line with constitutional values, digital realities, and contemporary judicial practices.
2. Importance of the Savings Clause
The savings provision serves as a transitional safeguard. Without it, ongoing cases would face uncertainty regarding admissibility of evidence, standards of proof, and procedural fairness. The clause ensures:
- Legal certainty
- Protection of vested rights
- Continuity in judicial proceedings
- Prevention of retrospective application of law
3. Doctrine of Prospective Application
Section 170 reinforces the principle that procedural laws, though generally retrospective, should not unsettle ongoing proceedings unless explicitly stated. Here, the legislature has consciously chosen prospective application of the Bharatiya Sakshya Adhiniyam.
Critical Analysis of Section 170
Strengths
- Legal Stability
- Protection of Fair Trial Rights
- Judicial Efficiency
- Clear Legislative Intent
Limitations and Concerns
- Dual Legal Regime
- Delayed Benefits of Reform
- Training and Adaptation Challenges
- Inconsistent Evidentiary Standards
Case Scenarios Illustrating Section 170 (10 Examples)
1. Criminal Trial at Evidence Stage
A murder trial where witness examination began before the new Adhiniyam commenced will continue under the Indian Evidence Act, 1872.
2. Cybercrime Case Filed After Commencement
A cyber fraud case registered after the new law comes into force will be governed by the Bharatiya Sakshya Adhiniyam.
3. Appeal Pending in High Court
An appeal challenging conviction, pending on the date of commencement, will apply the old Evidence Act.
4. Investigation Stage Case
If an investigation was ongoing before the new law commenced, evidentiary rules applicable at that stage remain unchanged.
5. Civil Suit on Contractual Dispute
A civil suit filed before commencement continues under the 1872 Act, even if evidence is recorded later.
6. Fresh Suit After Repeal
A property dispute filed after the repeal must follow the new evidentiary rules.
7. Revision Petition Pending
A criminal revision pending before a Sessions Court continues under the old law.
8. Digital Evidence in Ongoing Case
Even if the new law has better provisions for electronic evidence, an ongoing trial cannot switch to the new standards.
9. Special Court Proceedings
Cases pending before special courts (NDPS, PMLA, etc.) will continue under the old Evidence Act if instituted earlier.
10. Retrial Ordered After Commencement
If a retrial is ordered in a case originally filed before commencement, courts may still apply the old law due to the saving clause.
Comparative Insight: Repeal with Savings in Indian Legislation
Section 170 follows a well-established legislative pattern seen in:
- Code of Criminal Procedure amendments
- Companies Act transitions
- Taxation statutes
This approach reflects legislative prudence, balancing reform with continuity.
Effects on Court Proceedings
1. Procedural Continuity in Ongoing Cases
Courts are not required to restart trials, re-record evidence, or reassess admissibility already determined. This avoids:
- Re-examination of witnesses
- Re-admission of documents
- Procedural delays and backlog
2. Parallel Operation of Two Evidence Laws
For a transitional period, courts will adjudicate:
- Older cases under the Indian Evidence Act, 1872
- New cases under the Bharatiya Sakshya Adhiniyam
This requires judges to apply case-specific evidentiary regimes, increasing judicial responsibility but preserving fairness.
3. Judicial Interpretation Challenges
Courts must carefully distinguish:
- Whether a proceeding is “pending” or “fresh”
- Whether subsequent stages (appeal, revision, retrial) fall within the saving clause
Errors in classification could lead to appeals or constitutional challenges.
4. Impact on Case Management and Scheduling
Judicial officers must:
- Maintain separate evidentiary standards
- Ensure correct statutory references in orders and judgments
- Adapt courtroom practices accordingly
This may initially slow proceedings but stabilizes over time.
Effects on Parties to a Proceeding
1. Protection of Legitimate Expectations
Parties prepared their cases based on the Indian Evidence Act, 1872. Section 170 ensures:
- No sudden change in rules of admissibility
- No surprise burdens regarding proof
- Preservation of procedural fairness
2. Equality Between Litigants
Both sides in a pending case remain subject to the same evidentiary framework, avoiding advantage or prejudice to either party.
3. Avoidance of Retrospective Hardship
If the new law were applied retrospectively:
- Evidence earlier admissible might become inadmissible
- Parties could lose strategic advantages
4. Strategic Considerations for Litigants
Litigants and lawyers must now consider:
- Filing date of proceedings
- Applicable evidence law
- Differences in treatment of electronic and digital evidence
This affects litigation planning, especially in borderline cases.
Effects on Specific Types of Proceedings
Criminal Proceedings
- Accused persons benefit from certainty in evidentiary standards.
- Prosecution cannot introduce evidence under a new, possibly stricter or broader regime mid-trial.
Civil Proceedings
- Contractual, property, and commercial disputes retain consistent proof requirements.
- Documentary and oral evidence already tendered remains valid.
Appeals and Revisions
- Appellate courts continue applying the old law to assess correctness of trial court findings.
- No reinterpretation under the new Adhiniyam is permitted for pending appeals.
Institutional and Systemic Effects
1. Judicial Training and Capacity Building
Judges, prosecutors, and lawyers must remain conversant with:
- Both statutes
- Transitional jurisprudence
2. Reduction of Constitutional Challenges
By preventing retrospective application, Section 170 minimizes:
- Article 14 (equality) challenges
- Article 20(1) concerns in criminal cases
- Natural justice violations
3. Strengthening Rule of Law
The provision demonstrates that legal reform in India is evolutionary, not disruptive, reinforcing public trust in the justice system.
Critical Perspective on Practical Impact
Positive Effects
- Stability in administration of justice
- Fair treatment of litigants
- Predictable outcomes in pending cases
Potential Drawbacks
- Temporary confusion in lower courts
- Increased burden on judges to track applicable law
- Uneven modernization benefits across cases
Despite these challenges, the balance tilts strongly in favor of justice and certainty.
Conclusion
Section 170 of the Bharatiya Sakshya Adhiniyam has a deep and practical impact on court proceedings and parties to litigation. By preserving pending cases under the Indian Evidence Act, 1872, it safeguards fairness, legal certainty, and judicial efficiency. While courts and litigants must navigate a temporary dual-law environment, the provision ensures that the transition to a modern evidence regime is orderly, just, and constitutionally sound.
- Published on
Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 – Improper Admission and Rejection of Evidence (Section 169)
Case Scenario
Imagine a criminal trial where the court accidentally allows a document that should not have been admitted. Later, the accused challenges the judgment in appeal, arguing that the trial must start again because the document was wrongly accepted. However, apart from that document, there is strong eyewitness testimony and medical evidence clearly proving guilt. The appellate court now faces an important question: Should a new trial be ordered merely because of this technical mistake?
Section 169 of the Bharatiya Sakshya Adhiniyam, 2023 answers this question by prioritizing substantial justice over technical errors.
Improper Admission and Rejection of Evidence – Synopsis
Section 169 of the Bharatiya Sakshya Adhiniyam deals with situations where evidence is wrongly admitted or wrongly rejected by a court. It clearly lays down that not every mistake relating to evidence will result in a new trial or reversal of judgment.
**1. No New Trial for Improper Admission or Rejection of Evidence
[Section 169 – Bharatiya Sakshya Adhiniyam, 2023]**
Paraphrased Provision in Simple English
When evidence is wrongly admitted or wrongly rejected by a court, that mistake alone is not enough to cancel the judgment or order a new trial, if the court is satisfied that:
In such cases, the judgment will stand.
Meaning and Scope of Section 169
This section applies to:
It reflects the principle that justice should not fail due to minor procedural or technical mistakes.
Object of Section 169
Main Purpose
The main object of Section 169 is to ensure that:
In short, technical objections should not defeat substantial justice.
Improper Admission or Rejection as a Ground for Reversal
Improper admission or rejection of evidence can be a ground for reversal only when:
If the mistake does not affect the outcome, it is not a valid ground for interference.
Effects in Civil Cases
In civil cases:
Section 169 uses the term “reversal of judgment”, which shows that:
Judicial View
In Abdul Rahim v. King-Emperor (Bombay High Court), it was held that:
Effects in Criminal Cases
In criminal matters, the courts apply Section 169 cautiously because:
The appellant must show:
Key Principles in Criminal Appeals
Case Law
In State of Mysore v. Sampangiramiah, the court held:
Improper Admission vs Rejection of Evidence
Therefore, rejection of important evidence is more likely to justify a new trial.
Rejection of Evidence – Clarified
In Narain v. State of Punjab, the court clarified:
Critical Analysis of Section 169
Strengths
Weaknesses
10 Case Scenarios Illustrating Section 169
Conclusion
Evidence plays a central role in ensuring justice. While improper admission or rejection of evidence can seriously affect a trial, Section 169 of the Bharatiya Sakshya Adhiniyam, 2023 makes it clear that every error does not justify a new trial.
A new trial or reversal is warranted only when the mistake affects the final decision. If sufficient legal evidence exists independently, the judgment must stand. This section thus balances fairness, efficiency, and justice, ensuring that courts do not sacrifice truth at the altar of technicality.
Case Scenario
Imagine a criminal trial where the court accidentally allows a document that should not have been admitted. Later, the accused challenges the judgment in appeal, arguing that the trial must start again because the document was wrongly accepted. However, apart from that document, there is strong eyewitness testimony and medical evidence clearly proving guilt. The appellate court now faces an important question: Should a new trial be ordered merely because of this technical mistake?
Section 169 of the Bharatiya Sakshya Adhiniyam, 2023 answers this question by prioritizing substantial justice over technical errors.
Improper Admission and Rejection of Evidence – Synopsis
Section 169 of the Bharatiya Sakshya Adhiniyam deals with situations where evidence is wrongly admitted or wrongly rejected by a court. It clearly lays down that not every mistake relating to evidence will result in a new trial or reversal of judgment.
**1. No New Trial for Improper Admission or Rejection of Evidence
[Section 169 – Bharatiya Sakshya Adhiniyam, 2023]**
Paraphrased Provision in Simple English
When evidence is wrongly admitted or wrongly rejected by a court, that mistake alone is not enough to cancel the judgment or order a new trial, if the court is satisfied that:
- Even without the wrongly admitted evidence, there was enough lawful evidence to support the decision; or
- Even if the wrongly rejected evidence had been accepted, it would not have changed the final decision.
In such cases, the judgment will stand.
Meaning and Scope of Section 169
This section applies to:
- Civil cases
- Criminal cases
- Appeals
- Revisions
- All judicial proceedings before courts
It reflects the principle that justice should not fail due to minor procedural or technical mistakes.
Object of Section 169
Main Purpose
The main object of Section 169 is to ensure that:
- Courts focus on real justice, not technical defects
- Decisions are not disturbed unnecessarily
- Appeals are not misused to delay justice
In short, technical objections should not defeat substantial justice.
Improper Admission or Rejection as a Ground for Reversal
Improper admission or rejection of evidence can be a ground for reversal only when:
- It causes serious injustice to a party, and
- It materially affects the final decision
If the mistake does not affect the outcome, it is not a valid ground for interference.
Effects in Civil Cases
In civil cases:
- Courts usually rely on multiple pieces of evidence
- If sufficient evidence exists to justify the judgment, a new trial is not required
Section 169 uses the term “reversal of judgment”, which shows that:
- It mainly applies at the appellate stage
Judicial View
In Abdul Rahim v. King-Emperor (Bombay High Court), it was held that:
- Acceptance of inadmissible evidence does not automatically require a new trial
- A judgment need not be set aside if there is other reliable evidence
- The decision can stand if findings are supported independently
Effects in Criminal Cases
In criminal matters, the courts apply Section 169 cautiously because:
- Personal liberty is involved
The appellant must show:
- Not only that evidence was wrongly admitted or rejected
- But also that it resulted in a serious failure of justice
Key Principles in Criminal Appeals
- Wrongly admitted evidence should be excluded and the remaining evidence examined
- If the remaining evidence proves guilt, the conviction stands
- A new trial is ordered only if the case collapses without the faulty evidence
Case Law
In State of Mysore v. Sampangiramiah, the court held:
- If the decision is based solely on wrongly admitted evidence, it must be reversed
- If independent legal evidence exists, the decision remains valid
Improper Admission vs Rejection of Evidence
- Improper admission is less harmful because such evidence can be ignored later
- Improper rejection is more serious because valid evidence never comes on record
Therefore, rejection of important evidence is more likely to justify a new trial.
Rejection of Evidence – Clarified
In Narain v. State of Punjab, the court clarified:
- Evidence is not “rejected” if a party never seriously tried to present it
- The real test is whether the rejected evidence ought to have changed the decision
Critical Analysis of Section 169
Strengths
- Prevents unnecessary retrials
- Saves judicial time and resources
- Discourages misuse of appeals
- Promotes finality of litigation
- Focuses on justice, not technicalities
Weaknesses
- Risk of overlooking procedural fairness
- Depends heavily on judicial discretion
- In criminal cases, even small errors may impact fairness
- May appear harsh to parties affected by evidentiary mistakes
10 Case Scenarios Illustrating Section 169
- A forged document admitted, but strong oral evidence supports judgment – no retrial
- A witness statement wrongly rejected but would not alter result – judgment upheld
- In a murder case, CCTV wrongly admitted but eyewitnesses sufficient – conviction stands
- In a civil suit, one inadmissible email admitted but contract proved otherwise – no reversal
- Confession wrongly admitted, but no other evidence – retrial ordered
- Expert evidence rejected, but medical records sufficient – decision unchanged
- Prosecution drops a witness voluntarily – no rejection under Section 169
- Minor procedural error in document proof – no effect on decree
- Appellate court excludes illegal evidence and reassesses remaining material
- Entire conviction based on inadmissible evidence – judgment reversed
Conclusion
Evidence plays a central role in ensuring justice. While improper admission or rejection of evidence can seriously affect a trial, Section 169 of the Bharatiya Sakshya Adhiniyam, 2023 makes it clear that every error does not justify a new trial.
A new trial or reversal is warranted only when the mistake affects the final decision. If sufficient legal evidence exists independently, the judgment must stand. This section thus balances fairness, efficiency, and justice, ensuring that courts do not sacrifice truth at the altar of technicality.
