Introduction 

• Section 168 of Bhartiya Sakshya Adhiniyam, 2023 (BSA). states the provisions regarding Judge's power to put questions or order production. 
• This section is covered under Chapter X of BSA which is based on Examination of Witnesses. 
• The main objective of the judicial system is to ensure justice regardless of any procedural limitations. 
• This section states the duty of the court to ensure the discovery of truth and for that he has the authority to out forward certain relevant or irrelevant questions. 
• This Section was earlier covered under Section 165 of the Indian Evidence Act, 1872 (IEA). 

Who is a Witness? 

About: 

• A witness is a person who has personally seen an event happen. The event could be a crime or an accident or anything. Sections 124-139 of BSA talks about who can testify as a witness, how one can testify, what statements will be considered as testimony, and so on. 
• As per Section 124 of BSA a competent witness is one who has the capacity and ability to understand the questions put to him by the court. If he has the understanding of questions and the ability to give rational answers, then he is a competent witness. 
• Any person can be a witness. There’s no restriction as to who a witness can be. 
• A person, either male or female, a child or aged, can be a witness. The only restriction is that if a person does not understand the questions and is not able to answer rationally, then he is not a competent witness. 

Power of Judges to Ask Questions or to Order Production 

• Section 168 of the BSA states that: 
  • The duty of the judge is to ensure justice by putting questions to the witnesses as it deems fit. 
  • There is no such time limit given to the judges to ask questions and similarly no limit on the number of questions he can ask. 
  • The parties do not have the right to object to any question asked by the judge. 
  • The judges may grant permission to cross examine any witness. 
  • There is no such restriction on judges based on the kind, form, time, relevant or irrelevant of the question asked. 
  • The judge under this section has power to obtain the evidence and find facts which are relevant to the case therefore, this section is also known as indicative evidence. 
  • The object behind such questions is to make the evidence provided by the parties more intelligible. 
  • These questions make the evidence more reliable and trustworthy. 
  • The court under this section may ask questions to both the parties whether appearing and non-appearing as witnesses. 
  • It is specifically given under the section that the judgment must be based on the facts declared relevant and which are duly proved. 
  • It is further specifically given that the judge cannot compel any witness to answer any question and for such question for which the witness is entitled to refuse (Section 127 to Section 136 of the BSA). 
    • The judge shall not ask any improper question under Section 151 or Section 152 of BSA. 
    • The judge shall not dispense with primary evidence of any document produced except for the cases where it is accepted. 
  • It is to be noted that the statements made under this Section cannot be restricted based on Section 181 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which states the provisions based on Statements to police and use. 
  • The statements obtained by the court are necessary to ensure justice and therefore cannot be barred. 

Landmark Judgements 

• Nepal Chandra Roy v. Netai Chandra Das & State of Rajasthan (1971): 
  • The Supreme Court in this case held that the power given to the courts by Section 165 of IEA is to extract the best evidence; courts shall not be overzealous in asking questions. It shall be patient to let the parties put their questions to the witness and after the cross-examination if something remains to be answered then the court can ask questions. 
• Raghunandan v. State of U.P (1974): 
  • In this case it was held that the court that 162 of Code of Criminal Procedure, 1973 (CrPC) is a general provision and on the other hand sec 165 of IEA is a special provision. The restriction of section 162 will not apply upon 165 of IEA. Therefore, the court is free to ask questions to witnesses based on their statement made to the police during investigation. 
• Mohanlal Shamji Soni v. UOI (1991): 
  • In this case it was held that Section 165 of IEA and Sec 311 of CrPC are complementary to each other and between them, they confer jurisdiction on the Judge to act in aid of justice. 

Conclusion  

• The powers assigned to the judges are to ensure justice and it is the duty of the courts to make the best use of such powers. The questions under this section must be asked in such a way that is not improper and causes a threat to the witness. The obtained evidence must be essential for the case and to rely on them prudence and application of judicial mind is necessary by the judges.