Power of the Judge to Put Questions or Order Production (s. 168) — BSA (Law of Evidence) Notes

Power of the Judge to Put Questions or Order Production (s. 168)

An English judge once described his role as that of an umpire who must not “descend into the arena”. Indian law takes a bolder view. The judge is not a passive scorekeeper waiting for the lawyers to bring out the truth; s. 168 arms him with a wide power to ask any witness anything, at any time, to get at proper proof. But — and this is the exam point — that power comes with two firm leashes.

Section 168 [IEA s. 165] gives the judge an exceptionally wide investigative power, and then limits how he may use what he finds.

A. The wide power

The judge may, in order to discover or obtain proper proof of relevant facts:

ask any question he pleases, in any form, at any time, of any witness or of the parties, about any fact — relevant or irrelevant; and
order the production of any document or thing.

And neither the parties nor their advocates may object to any such question or order, nor (without the court’s leave) cross-examine any witness on his answer. The object is purely to help the court get at proper proof — the judge may travel beyond the questions the parties chose to ask.

B. The two leashes (the marks)

The power is wide in asking but tightly controlled in using:

The judgment must rest only on relevant facts, duly proved. Although the judge may ask about an irrelevant fact, he must base his decision solely on facts that the Adhiniyam declares relevant and that are duly proved. He cannot convict on something he merely fished out that is not legally relevant.
He cannot override privilege or the primary-evidence rule. Section 168 does not authorise the judge to compel a witness to answer, or to produce a document, which the witness could lawfully refuse under the privilege sections (ss. 127–136); nor may he ask a question that would be improper for a party to ask under ss. 151–152 (indecent/insulting); nor may he dispense with the need for primary evidence.

So the section hands the judge a searchlight but forbids him to shine it into the protected corners, and forbids him to decide the case on anything the searchlight reveals that is not relevant and proved.

🧩 WORKED EXAMPLE — the judge fills a gap

Facts. In a trial, neither lawyer has clarified a crucial date. The judge himself asks the witness the date and orders production of a register to fix it. The defence objects that the judge is “helping the prosecution”. Later, the judge wants to rely on an admission the witness let slip that is irrelevant to the charge.

Rule. Section 168 lets the judge ask any question and order any production to get proper proof, and bars objection; but the judgment must rest only on relevant, duly-proved facts, and the judge cannot breach privilege.

Apply. The judge’s questions and the order for the register are squarely within s. 168 — the objection is not maintainable. But when he decides the case, he may rely only on relevant facts duly proved; the irrelevant admission cannot form the basis of his judgment.

Conclusion. The judge acted lawfully in questioning and ordering production, but must decide solely on relevant, proved facts — not on the irrelevant material his questions turned up.

Section 168, BSA 2023: “The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he considers necessary, in any form, at any time, of any witness, or of the parties about any fact; and may order the production of any document or thing; and neither the parties nor their representatives shall be entitled to make any objection to any such question or order… Provided that the judgment must be based upon facts declared by this Adhiniyam to be relevant, and duly proved.”

In Simple Terms: The judge is not a silent referee — he may ask any witness any question, in any form, at any time, and call for any document, to get at the truth, and no lawyer may object. But two limits bind him: he must decide the case only on relevant, properly-proved facts, and he cannot force out anything the law lets a witness keep back.

flowchart TD
    ROOT["Judge's power (s. 168)"]:::root
    ROOT --> A["WIDE: any question, any form,<br/>any time, any fact; order production<br/>— no objection allowed"]:::leaf
    ROOT --> B["LEASH 1: judgment only on<br/>relevant facts, duly proved"]:::diamond
    ROOT --> C["LEASH 2: cannot breach privilege<br/>(ss. 127-136) or ss. 151-152,<br/>nor dispense with primary evidence"]:::diamond
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Case Laws

Ram Chander vs State of Haryana (1981) — s. 165 IEA (now s. 168) gives the judge wide power to question witnesses to elicit the truth, but he must not intimidate a witness or descend into the arena so as to lose his objectivity; the power is to be used to advance justice, not to help one side.
Jamatraj Kewalji Govani vs State of Maharashtra (1968) — the court’s power to summon or question witnesses to reach a just decision is wide, but it must be exercised for the discovery of truth and consistently with the rules of evidence.

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