​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Refreshing Memory of a Witness (Section 162)

Case Scenario
During a trial, a witness is questioned about events that took place several years ago. He appears unsure about specific dates and details. To answer accurately, he requests permission from the court to look at his diary entries made at the time of the incident. The court must decide whether the witness can lawfully refresh his memory using those writings and under what conditions.
This situation is governed by Section 162 of the Bharatiya Sakshya Adhiniyam, 2023.


Section 162 – Refreshing Memory
Statutory Rule Explained in Simple English
Section 162 permits a witness, while under examination, to refresh his memory by referring to certain writings.
Section 162(1): Refreshing Memory from Writings
A witness may refresh his memory by referring to:

• Any writing made by him:
  • At the time of the transaction, or
  • So soon thereafter that the court considers the facts were still fresh in his memory

Provided that:

• The witness may also refer to a writing made by another person,
• If the witness read it within the same time period, and
• At the time of reading, he knew it to be correct

Section 162(2): Refreshing Memory by Reference to Copies and Treatises

• A witness may, with the permission of the court, refer to a copy of a document
• The court must be satisfied that:
  • There is a sufficient and reasonable reason for non-production of the original

Special Rule for Experts

• An expert witness may refresh memory by referring to:
  • Professional treatises
  • Works of authority in the field

Scope of Section 162

• Normally, a witness testifies from personal recollection
• Human memory is imperfect and fades over time
• Section 162 recognizes this limitation and allows:
  • Written aids to assist recollection
  • Accurate and complete testimony

Important point:

• The document itself need not be admissible as evidence
• The facts sought to be proved must be admissible

Example:

• An insufficiently stamped promissory note may still be used to refresh memory

Rules Regarding Refreshing Memory (Note Form)
A witness may refresh memory using writings falling under the following categories:
(i) Own Writing

• Writing made by the witness himself
• Made:
  • At the time of the transaction, or
  • Soon after, when facts were fresh in memory

(ii) Third-Party Documents

• Writing made by another person
• Conditions:
  • Witness must have read it soon after the transaction
  • At the time of reading, he knew it to be correct

Meaning of “Writing”

• Includes printed matter
• Example:
  • A witness to a speech may refresh memory using a newspaper report,
  • If he read it soon afterwards and knew it was accurate

(iii) Professional Treatises

• Applicable to expert witnesses
• Experts may refresh memory using:
  • Standard textbooks
  • Professional works regarded as authoritative

(iv) Copies of Documents (Secondary Evidence)

• A witness may refer to a copy of a document:
  • Only with court’s permission
• Court must be satisfied that:
  • Original document cannot be produced for valid reasons

If no sufficient reason exists:

• The original document must be produced

Documents That May Be Used for Refreshing Memory
Section 162 does not restrict the type of documents. Any document fulfilling statutory conditions may be used, such as:

• Account books
• Private notebooks
• Diaries
• Registers
• Horoscopes

Documents Not Permissible for Refreshing Memory
Due to restrictions under Section 181 of BNSS:

• Statements recorded during police investigation (e.g., Section 180 BNSS)
• Case diaries

However:

• Statements recorded under Section 183 BNSS may be used for refreshing memory

Purpose of Section 162

• To secure full benefit of witness’s recollection
• To reduce errors caused by lapse of memory
• To assist the court in arriving at the truth
• To balance human fallibility with judicial accuracy

Critical Analysis
Strengths

1. Recognizes natural weakness of human memory
2. Ensures accurate and complete testimony
3. Aids truth-finding process
4. Allows flexibility in evidence handling
5. Supports expert testimony

Limitations

1. Risk of tutoring if not carefully monitored
2. Heavy reliance on judicial discretion
3. Potential misuse of unauthenticated documents

10 Illustrative Case Scenarios

1. Witness refers to diary entries
2. Accountant refreshes memory from ledger
3. Expert doctor refers to medical textbook
4. Witness uses copy due to lost original
5. Newspaper used to recall speech
6. Private notebook used in testimony
7. Court refuses copy for lack of justification
8. Police statement disallowed for refreshing memory
9. Business records used to aid recollection
10. Fair trial ensured through controlled use

Conclusion
Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 provides a practical and realistic mechanism for refreshing the memory of witnesses. By allowing reference to writings, copies, and professional treatises—subject to judicial control—the section ensures that evidence reflects truth rather than the limitations of human memory.
At the same time, safeguards against misuse preserve fairness and integrity in judicial proceedings, making Section 162 a vital component of modern evidence law.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
What Matters May Be Proved in Connection with a Proved Statement Relevant under Sections 26 or 27 (Section 161)


Case Scenario
In a murder trial, the prosecution relies on a dying declaration made by the victim, which is admissible under Section 26 of the Bharatiya Sakshya Adhiniyam. The person who made the statement is no longer alive and therefore cannot be cross-examined. The defence argues that since the maker of the statement is unavailable, no further evidence should be allowed regarding the truthfulness or credibility of that statement.
The court must now decide: Can facts be proved to support or contradict such a statement, even though the maker is not before the court?
Section 161 of the Bharatiya Sakshya Adhiniyam, 2023 provides the answer.


Section 161 – Matters That May Be Proved in Connection with Statements under Sections 26 or 27
Statutory Rule (Paraphrased in Simple English)
Whenever a statement that is relevant under Section 26 or Section 27 is proved, then:

• All facts may be proved which:
  • Contradict the statement, or
  • Corroborate the statement, or
  • Impeach (discredit) the credibility of the maker, or
  • Confirm the credibility of the maker

And these matters may be proved in the same manner as they could have been proved:

• If the person who made the statement had been called as a witness, and
• Had denied the truth of those matters during cross-examination.

Meaning and Purpose of Section 161
Section 161 ensures that:

• Statements admitted under Sections 26 or 27 are not treated as unquestionable truth
• The opposing party is given a fair opportunity to:
  • Challenge their correctness, and
  • Test their reliability

The provision places such statements on the same footing as oral testimony, even when the maker is unavailable.


Application Where the Maker of the Statement Is Unavailable
When the maker of the statement:

• Cannot be found, or
• Is dead (e.g., dying declaration),

and the statement is proved as relevant under Section 26 or 27, then:

• Evidence may still be given:
  • To confirm the statement, or
  • To contradict it
• Evidence may also be given:
  • To support or impeach the credibility of the person who made it

This is done to the same extent as if:

• The person were alive,
• Had appeared before the court, and
• Had been cross-examined.

Rationale Behind Section 161
The rationale is based on fair trial and natural justice:

• Normally, credibility of a witness is tested by cross-examination
• When the maker of a statement is not available, cross-examination is impossible
• Section 161 compensates for this by allowing:
  • Independent evidence to test truthfulness
  • Safeguards against false or unreliable statements

Thus, the law ensures:
The same safeguards for veracity as if the maker were personally before the court.


Nature of Evidence Permitted under Section 161
Under this section, evidence may be led to:

• Contradict the statement
• Corroborate the statement
• Impeach the credit (character, reliability, trustworthiness) of the maker
• Confirm the credit of the maker

This includes:

• Prior inconsistent statements
• Circumstances affecting credibility
• Conduct of the maker
• Independent corroborative facts

Relationship with Sections 26 and 27

• Section 26 / 27: Make certain statements relevant and admissible
• Section 161: Regulates how such statements may be tested for truth

Section 161 does not create relevance, but provides procedural fairness after relevance is established.


Connection with Refreshing Memory (Sections 162–164)
Sections 162 to 164 deal with refreshing memory of witnesses through writings.
Illustrative Case: State of Andhra Pradesh v. Cheemalapati Ganeshwara Rao
Facts (Simplified)

• Accused were charged with conspiracy, breach of trust, falsification of accounts
• An approver gave evidence
• He refreshed his memory by referring to account books maintained by him
• Absence of entries in certain books was relied upon against the accused

Held
The court held:

• Section 162 expressly permits a witness to refresh memory:
  • By writings made by himself, or
  • By writings made by others and read by him soon after
• The witness need not wait until he is “in difficulty”
• He may refer to documents generally to ensure accuracy

Thus, objections to refreshing memory in such a manner were rejected.


Critical Analysis of Section 161
Strengths

1. Ensures fairness despite absence of cross-examination
2. Prevents blind reliance on dying declarations or similar statements
3. Maintains balance between admissibility and credibility
4. Protects rights of the accused
5. Upholds principles of natural justice

Limitations

1. Depends heavily on quality of surrounding evidence
2. Risk of over-reliance on circumstantial corroboration
3. Requires careful judicial evaluation

10 Illustrative Case Scenarios

1. Dying declaration contradicted by medical evidence
2. Dying declaration corroborated by eyewitness testimony
3. Prior conduct impeaches credibility of declarant
4. Statement supported by surrounding circumstances
5. Inconsistent prior statement proved
6. Motive shown to affect reliability
7. Character evidence affecting credibility
8. Absence of corroboration weakens statement
9. Independent evidence confirms truth
10. Court treats statement like testimony of unavailable witness

Conclusion
Section 161 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in ensuring fairness when statements admissible under Sections 26 or 27 are relied upon. It allows courts to admit evidence that either supports or challenges such statements, thereby providing safeguards equivalent to cross-examination.
By placing these statements on par with live testimony for the purpose of testing truth and credibility, Section 161 strengthens the justice delivery system and ensures that admissibility does not become unquestioned acceptance.

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:

• 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

👉 B is not allowed to do so without A’s consent or the court’s order.

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,

then that party:

• Loses the right to later rely on that document as evidence
• Cannot use it to:
  • Contradict secondary evidence, or
  • Improve their own case

This restriction acts as a penalty for unfair litigation tactics.

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

This ensures flexibility while maintaining discipline in judicial proceedings.

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

This presumption operates against the party withholding the document.

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

Critical Analysis

Strengths

1. Discourages unfair tactics and suppression of evidence
2. Promotes transparency and cooperation in trials
3. Protects the credibility of secondary evidence
4. Upholds fairness and equality between parties
5. Ensures procedural discipline

Limitations

1. May operate harshly in cases of genuine mistake
2. Relies on judicial discretion for relaxation
3. Requires careful application to avoid injustice

Overall, the provision strikes a balance between fairness and procedural discipline.

10 Illustrative Case Scenarios

1. Party refuses to produce contract – later barred from using it
2. Secondary evidence admitted due to refusal
3. Original document later offered – court rejects it
4. Court permits production in exceptional circumstances
5. Non-production leads to adverse presumption
6. Withholding party suffers evidentiary disadvantage
7. Consent of opposite party allows later use
8. Strategic suppression penalized
9. Honest refusal corrected by court’s permission
10. 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.

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:

1. One party gives notice to the other party to produce a document, and
2. 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

This principle applies equally to:

• 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

Important Limitation

• 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:

1. Notice to Produce
   • One party must require the other party to produce a document
2. Actual Production and Inspection
   • The document must be produced and inspected by the party who sought it
3. Demand by Producing Party
   • The party producing the document must demand that it be given in evidence

Only when all three are present does Section 166 operate.

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

Critical Analysis

Strengths

1. Prevents selective and unfair use of documents
2. Encourages procedural fairness
3. Discourages fishing expeditions
4. Maintains integrity of evidence
5. Promotes transparency in trials

Limitations

1. May operate harshly if inspection reveals unexpected prejudice
2. Depends on proper judicial supervision
3. Does not dispense with need for proof, causing delay

10 Illustrative Case Scenarios

1. Party inspects contract and must produce it
2. Inspection reveals unfavourable clause – cannot suppress
3. Producing party insists on admission – court allows
4. Document already on record – Section 166 inapplicable
5. Cross-examination allowed on genuineness
6. Document read as a whole
7. Partial reliance rejected by court
8. Burden of proof examined independently
9. Fair trial ensured by transparency
10. Tactical misuse prevented

Conclusion

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.

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:

• 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

1. Ensures access to relevant documentary evidence
2. Prevents arbitrary refusal by witnesses
3. Preserves judicial control over admissibility
4. Balances transparency with state confidentiality
5. Strengthens fair trial principles

Limitations

1. Heavy reliance on executive privilege in state matters
2. Limited judicial scrutiny over classified documents
3. Potential misuse of privilege claims

10 Illustrative Case Scenarios

1. Witness summoned to produce contract – must comply
2. Objection raised – court decides validity
3. Court inspects document to rule on admissibility
4. State document claimed privileged – no inspection
5. Translator ordered to maintain secrecy
6. Translator leaks contents – criminal liability
7. Officer claims state privilege – court conducts inquiry
8. Court rejects frivolous objection
9. Witness refuses production – held liable
10. 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.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Right of Adverse Party as to Writing Used to Refresh Memory (Section 164)


Case Scenario

During a trial, a witness while giving evidence appears uncertain about certain dates and events. To recall the facts accurately, the witness refers to a diary and some notes. The opposing counsel notices this and demands to see the documents being used. The question arises: Does the adverse party have a right to inspect those writings and cross-examine the witness on them?

Section 164 of the Bharatiya Sakshya Adhiniyam, 2023 clearly governs this situation.


Section 164 – Right of Adverse Party as to Writing Used to Refresh Memory

Statutory Rule (Paraphrased in Simple English)

Whenever a witness uses any writing to refresh his memory while giving evidence:

• That writing must be produced and shown to the adverse party, if demanded
• The adverse party has the right to cross-examine the witness on the basis of that writing

This applies to writings referred to under the preceding two Sections relating to refreshing memory.


Scope of Section 164

Section 164 confers a procedural right on the adverse party to ensure fairness in evidence.

• The right covers every document or paper used by the witness to refresh memory
• It ensures transparency in witness testimony
• The right must be exercised at the time the writing is used

Important Limitation

• If the right is not exercised immediately, it may not continue for the entire duration of the witness’s examination

Rights of the Adverse Party under Section 164

The adverse party is entitled to:

1. Production of the Writing
   • The witness must produce the writing used to refresh memory
2. Inspection of the Writing
   • The adverse party may examine its contents
3. Cross-Examination of the Witness
   • The witness may be questioned based on the writing

Purpose and Justification of the Right

The law allows inspection and cross-examination for the following reasons:

(i) To Secure Full and Accurate Recollection

• Ensures that the witness presents a complete and correct account of facts

(ii) To Prevent Improper Use of Documents

• Prevents coaching or manipulation of testimony
• Avoids misuse of notes or documents not genuinely aiding memory

(iii) To Compare Oral Testimony with Written Record

• Helps expose inconsistencies or contradictions
• Enhances credibility assessment

Nature of the Writing

• The writing need not be admissible as evidence
• It need not be proved independently
• Its use is limited to testing the credibility and accuracy of the witness

Critical Analysis

Strengths

1. Promotes transparency in witness testimony
2. Prevents unfair advantage through hidden documents
3. Strengthens cross-examination
4. Ensures procedural fairness
5. Protects rights of the adverse party

Limitations

1. Requires timely assertion of the right
2. Overuse may interrupt flow of examination
3. Depends on judicial control to prevent harassment

10 Illustrative Case Scenarios

1. Witness refers to diary – adverse party inspects it
2. Notes used during testimony – cross-examination allowed
3. Witness coached through document – exposed
4. Adverse party fails to object immediately – right lost
5. Inconsistency between writing and testimony revealed
6. Court restricts abusive cross-examination
7. Memory refreshed from electronic record – inspection allowed
8. Witness uses document briefly – still inspectable
9. Improper document use prevented
10. Fair trial ensured through transparency

Conclusion

Section 164 of the Bharatiya Sakshya Adhiniyam, 2023 safeguards the right of the adverse party to inspect and challenge any writing used by a witness to refresh memory. By allowing inspection and cross-examination, the provision prevents misuse of documents, ensures accurate recollection, and strengthens the truth-finding process.

This section reinforces the principle that evidence must be transparent, tested, and fair, thereby maintaining the integrity of judicial proceedings.

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:

• 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:

1. Truth Discovery – Ensures that the real facts are brought on record
2. Fair Trial – Protects both prosecution and defence from injustice
3. Prevention of Miscarriage of Justice – Avoids convictions or acquittals based on incomplete evidence
4. 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

Judicial participation must be balanced, fair, and restrained.

Critical Analysis

Strengths

1. Prevents injustice due to prosecutorial lapses
2. Ensures comprehensive examination of witnesses
3. Enhances quality of fact-finding
4. Upholds constitutional mandate of fair trial
5. Reinforces public confidence in judiciary

Concerns

1. Risk of judicial overreach
2. Possibility of perceived bias
3. Excessive intervention may prejudice defence
4. 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

1. Prosecutor forgets to ask about weapon – judge intervenes
2. Witness gives vague timeline – judge seeks clarification
3. Contradiction in testimony – judge questions witness
4. Key fact omitted unintentionally – judge elicits details
5. Prosecutor inexperienced – judge ensures essential facts emerge
6. Defence silent to exploit gaps – judge neutralises injustice
7. Witness confused – judge simplifies questions
8. Trial court passive – appellate court criticises approach
9. Judge exceeds role and appears biased – conviction set aside
10. 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.

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:

• 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

This power is meant to advance justice, not to secure conviction.

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:

1. Actively monitor trial proceedings
2. Ask clarificatory questions when needed
3. Ensure all material evidence is examined
4. Protect the rights of the accused
5. Maintain neutrality and fairness
6. Prevent injustice due to procedural lapses

Critical Analysis

Strengths of Judicial Participation

1. Helps uncover the truth
2. Prevents wrongful convictions
3. Protects fair trial rights
4. Improves quality of justice delivery
5. Enhances public trust in courts

Risks and Limitations

1. Risk of judicial overreach
2. Possibility of perceived bias
3. Excessive intervention may prejudice defence
4. Requires judicial restraint and skill

Thus, participation must be balanced and judicious.


10 Illustrative Case Scenarios

1. Judge clarifies gaps in witness testimony
2. Prosecutor omits key question – judge intervenes
3. Defence silent – judge ensures fairness
4. Judge intimidates witness – conviction overturned
5. Passive judge – appellate court criticizes trial
6. Balanced intervention – conviction upheld
7. Circumstantial evidence incomplete – acquittal granted
8. Judge acts like prosecutor – bias alleged
9. Judge harmonizes proceedings – fair trial ensured
10. 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.

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:

• 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

1. Ensures discovery of truth
2. Prevents miscarriage of justice
3. Strengthens active judicial role
4. Protects fair trial rights
5. Enhances credibility of verdicts

Concerns

1. Risk of judicial overreach
2. Possible delay in proceedings
3. Danger of appearing partisan if misused
4. Requires judicial maturity and restraint

Despite these concerns, judicial passivity is far more harmful than careful intervention.


10 Illustrative Case Scenarios

1. Judge asks missing questions under Section 168
2. Court summons omitted eyewitness under Section 348
3. Document ordered to be produced mid-trial
4. Witness recalled for clarification
5. Prosecution oversight cured by court intervention
6. Defence benefits from complete fact-finding
7. Passive court leads to acquittal on appeal
8. Balanced use results in conviction upheld
9. Overuse leads to bias allegation
10. 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.

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:

1. Ask any question
   • In any form
   • At any time
   • To any witness or party
   • About any fact
2. 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

1. Ensures discovery of truth
2. Prevents miscarriage of justice due to poor advocacy
3. Strengthens participatory role of the Judge
4. Protects fairness of trial
5. Discourages tactical silence by parties

Limitations

1. Risk of judicial overreach
2. Possibility of perceived bias
3. Requires high judicial restraint and competence
4. Overuse may intimidate witnesses

10 Illustrative Case Scenarios

1. Judge clarifies vague witness testimony
2. Prosecutor omits key question—Judge intervenes
3. Missing document ordered to be produced
4. Defence silence neutralized by judicial questions
5. Judge asks improper question—appellate correction
6. Witness refuses privileged answer—Judge respects refusal
7. Primary document insisted upon by Judge
8. Excessive questioning leads to allegation of bias
9. Balanced intervention ensures conviction upheld
10. 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.