Report No. 185

Section 165

This Section deals with "Judges power to put questions or order production". It reads as follows:

"165. The judge may, in order to discover or to 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 may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this Section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Sections 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."

This Section is very important Section.

This Section supplements the provisions of Order 11 Rule 14, Order 13 Rules 1, 2, Order 16 Rule 17, Order 18 Rules 17, 18 of the Code of Civil Procedure, 1908 and Section 311 of the Code of Criminal Procedure, 1973. The power of the Court under Section 311 CrPC are wider. Under Section 310 of the CrPC, the Court can make a local inspection (see also Jamatraj v. State, AIR 1968 SC 178.

The main part of Section 165 permits the judge to ask any question as he pleases, in any form, at any time, of any witness, of the party, about any fact, 'relevant or irrelevant', or order production of any document or thing.

Parties cannot object to the question or order, nor, without leave of Court, cross-examine any witness.

But, whatever be the nature of questions, the judgment must be based upon facts which are 'relevant' and 'duly proved'.

Now, there is a difference between 'relevancy' and 'admissibility' as pointed out in Chapter XXV of the 69th Report. The Evidence Act, in Section 3 defines the words 'relevant', 'evidence' and 'proved'. Section 5 of the Act states that evidence may be given in a suit on facts in issue and relevant facts. Explanation to Section 5 reads as follows:

"Explanation: This Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure."

While Section 5 and other Sections speak of relevancy, some others speak of 'admissibility'. Section 65 speaks of 'admissibility' of secondary evidence. So does Section 65B; secs. 91 to 94 exclude certain types of evidence; secs. 123 to 131 prohibit certain questions; Section 136 permits the judge to decide about the 'admissibility' of evidence. Secs. 148, 149 give power to Court to prohibit certain questions; so does secs. 151, 152, 153 etc. Secs. 24 to 27 of the Evidence Act prohibit certain questions or preclude certain answers being used by the Court.

Apart from the Evidence Act, 1872, there are other statutes which prohibit certain oral and documentary evidence. Section 35 of the Stamp Act 522 prohibits any unstamped document being admitted in evidence. Section 17 of the Registration Act, 1908 prohibits certain documents which are compulsorily registrable, to be used as evidence of the transaction contained; Section 162 of the Code of Criminal Procedure, 1973 prohibits the use of a statement made during investigation from being used except for contradiction or otherwise as stated in that Section.

Clause (3) of Article 20 of the Constitution prohibits any questions which incriminate or tend to incriminate an accused under a prosecution.

We need not propose here to give an exhaustive list of questions which a party is prohibited from putting to an adverse party or a list of answers or documents which are inadmissible in law.

Question arises, if on grounds of policy, a party is not permitted to put certain questions or to bring on record certain inadmissible oral or documentary evidence can a Court of law be allowed to put the same questions and elicit answers which are inadmissible or use such evidence merely because the said questions are not the ones covered by secs. 121 to 131 or 148 or 149 of the Evidence Act, referred to in the second proviso to Section 165?

Sarkar (1999, 15th pp. 2319 etc.) says that a judge is entitled to take a proactive role in putting questions to ascertain the truth and to fill up doubts, if any, arising out of inept examination of witnesses. But, as stated by Lord Denning in Jones v. National Coal Board, 1957 (2) All ER 155 (CA), the judge cannot 'drop the mantle of a judge and assume the role of an advocate'.

Of course, that the judge cannot be a passive spectator but has to take a proactive role is emphasized by Phipson (Evidence, 1999, 15th Ed, para 1.21). Phipson says:

"When the form of the English trial assumed its modern institutional form, the role of the judge was that of a neutral umpire. This is still broadly the position in criminal cases. In civil cases, the abandonment of jury trial except in a few exceptional cases led to some dilution of this principle. The wholesale changes in 1999 of the rules governing civil procedure has emphasized the interventionist role of the modern judge. Whereas formally the tribunal was a 'reactive judge (for centuries past at the heart of the English Common La.- concept of the independent judiciary) instead we shall have a proactive judge whose task will be to take charge of the action at an early stage and manage its conduit."

This was what was stated in the preface to the new Civil Procedure Rules of U.K.

As to criminal cases, recently, in State of Rajasthan v. Ani : AIR 1997 SC 1023, the Supreme Court clarified that "reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But, there is nothing wrong in his becoming active or dynamic during trial 524 so that criminal justice being the end, could be achieved. Criminal trials should not turn out to be a combat between two rival sides with Judge performing the role of a spectator or even an umpire to pronounce finally who won the race."

It is in the above background that Section 165 must be understood. It gives power to the Court to take a pro-active role to put questions to ascertain truth, where the parties or counsel have not done a good job. That being the object of Section 165, it would, in our opinion, be not right to allow questions which are not permissible if asked by a party. May be, Sections 148, 149 permit the parties to put some questions not relevant to the issues in the suit or proceeding when they have to discredit a witness's evidence or to refer to his character. The Court can also go to that extent. Barring such questions, the parties are not allowed to put questions or elicit answers on irrelevant aspects. The Court is also bound by the same rules.

All that Section 165 means is that the Judge has a discretionary power to put questions or summon a document. If the discretion is not exercised judicially, an appellate Court may find fault with the wrong exercise of discretion. As stated in R v. Hari Lakshman, ILR 10 Bom 185, the Judge can put an irrelevant question for the purpose of discovery of relevant facts or proof of relevant facts. Such interrogation on irrelevant matters may result in securing "indicative evidence", (which Benthan called evidence of evidence)(Sarkar, 15th Ed., 1999, p 2320).

In Krishna v. Balkrishna: ILR 57 Mad 635, it was held that under Section 165, the Court cannot order the production by a party if any document or thing, except with the object of obtaining 'indicative evidence' which may lead to discovery of something relevant.

Sarkar (ibid, p 2320) says that there is further limitation:

"A further limitation of the power will be found in the first proviso, which lays down that judgments must be based on relevant facts which have been duly proved. It is clear therefore that the judge cannot in any case admit illegal or inadmissible evidence for basing his decision or place it before the jury for their verdict. In this respect the Section is in accord with the English law. (see post:Best Section 86)".

What is crucial here is that the decision must be, based on 'relevant facts', 'duly proved', though questions could be irrelevant. Due proof here means that irrelevant or inadmissible evidence (even if it is otherwise relevant) cannot be the basis of any findings.

Even if questions by the Judge are relevant, they can still be admissible or inadmissible. Under Section 165, even irrelevant questions can be put with a view to lead to relevant evidenc.- such questions may be either admissible or inadmissible. Relevancy is a bigger circle while irrelevancy is a small circle within that bigger circle.

Can inadmissible question.- which a party is not entitled to pu.- be allowed to be put by the Judge?

On this aspect, it appears to be clear from several decisions of the High Courts that the Judge cannot put questions which are not permitted by the Evidence Act or other statutes to be put by the opposite party. But the Supreme Court in Raghunanden v. State of UP : AIR 1974 SC 463, held that questions which are inadmissible can be put by the Judge of such questions are not the ones specifically excluded in the second proviso to Section 165, viz. questions covered by Sections 121-131, 148 and 149.

We shall refer to a few decisions of the High Courts and then to the judgment of the Supreme Court above referred to.

The power conferred on the Judge cannot be used for proving a confession to police which is shut out by Section 25, or a confession made while in police custody except as mentioned in Section 27, or for eliciting a statement which Section 162 of the Code of Criminal Procedure forbids for being used for any purpose at any inquiry or trial (Pullamma v. R: 1932 MWN 625). Section 165 of the Evidence Act cannot be used for the purpose of introducing evidence in contravention of the law (Rahijaddi v. R) (ILR 58 Cal 1009).

Such statements cannot be used by the Court in order to show that the witnesses had made contradictory statements to the police officer Veramat v. R 42 CLJ 528; Maung Htin v. Mg Po ILR 4 Rang. 471. A document prepared by the police during investigation does not become evidence merely because it is formally proved and exhibited (Yaru v. R: 99 I.C. 240 (Lah).

It was however held in R v. Lal Mia: ILR 1943(1) Cal 543 that a judge can look into the previous statements of witnesses recorded in the police diary, even though the defence neither requested him nor applied for copies of such statements; and if the interests of justice demand, the Judge may himself under Section 165 put questions to witnesses to bring out the discrepancies of vital nature between such statements and the evidence of those witnesses in Court.

In re Molagan: AIR 1953 Mad. 179, it was held that the Judge, having the police diary before him, can in the interests of the accused, put to the police officer any question regarding the accused's statement to the police which goes in his favour. In P. Rajeswan v. Hotel Imperial: AIR 1989 Mad 34 it was held that the Motor Accident Claims Tribunal is obliged to find out from the evidence available or to get at the evidence as provide under Section 105, or give further opportunity to either side tio produce necessary evidence, such documents that were prepared during the course of investigation.

In Mohanlal v. Sankla 6 Bom LR 789, it was held that it is improper for the Court to receive any information of any kind in reference to case, whether it be relevant or not, other than such as comes before it in the way which the law recognizes in the form of legal evidence. In Amarnath v. R: 851 C 143(L) it was held that a Judge has no right to test evidence given in Court by material which had not legally been made evidence and that it is improper to stigmatise a witness as perjured on such material.

We then come to two decisions of the Supreme Court which are, more or less, conflicting. In Raghunandan v. State of UP: AIR 1974 S.C. 463, the Supreme Court said that the ban imposed by Section 162 of the Code of Criminal Procedure, 1973 against use of a statement of a witness recorded by the police during investigation, does not operate against the special powers of the Court under Section 165, to question a witness in order to secure the ends of justice. The second proviso prevents only questions falling under ss 121-131, 148 and 149 but not Section 162 of the Code of Criminal Procedure.

On the other hand, in Hari Ram v. Hira Singh : AIR 1984 SC 396, it was held (para 5):

"To begin with, the High Court seems to have been under the impression that the Court had ample powers to direct production of any document under Section 165 of the Indian Evidence Act. In doing so, with due deference, the High Court overlooked that the Representation of the People' Act was a special Act and provisions of the Evidence Act or the Code of Civil Procedure would only apply where they are not excluded. Thus, at the very outset, with due respect, the approach of the High Court was legally incorrect".

The Supreme Court then referred to Rule 93 of Rules for Conduct of Elections and held that the rule makes a clear distinction between ballot papers and other election papers; ballot papers may be inspected only under the order of a competent Court or tribunal, but other documents are, subject to certain conditions, open to public inspection". So far as the counter foils are concerned there is a clear prohibition for opening them unless the Court is satisfied that a cast-iron case is made out for the same.

Therefore, if under the other provisions of the Evidence Ac.- apart from Section 121 to 131, 148 and 14.- certain questions which parties are precluded either from putting those questions for the purpose of their respective pleas, then the Court cannot be deemed, because of the wide language of Section 165, to put such questions for arriving at a finding. The Stamp Act, Registration Act, or Representation of Peoples Act, our recommendation in the 172nd Report regarding 'Rape Law' may preclude certain questions and the Court does not have a special power to put the prohibited questions in these or other areas.

We are, therefore, of the view that there is need to modify the principle enunciated in Raghunandan's case. In our view, while the judge may put irrelevant questions, he cannot put inadmissible questions.

Sri Vepa P. Sarathi has suggested that Section 165 be modified as recommended in the 69th Report, that is, by making a few structural changes. He has not favoured the other proposals suggested by us with regard to restricting the power of the court to put irrelevant or inadmissible questions. The reason given by him is that the Act contains nothing but rules of natural justice and their application will not affect the speedy disposal of cases.

English and American laws of evidence have several rules of exclusion but that under law the distinction is between different types of evidence depends only on the weight to be attached thereto. But here, from what we have stated above, the question is whether the wide powers of the court could be used to violate express provisions in other statutes.

Therefore, though in the 69th Report, only certain structural changes were suggested in Section 165, while accepting the same, we propose to make it clear that the power under Section 105 cannot be used to put questions which are prohibited by the Evidence Act or any other statute.

We recommend that the restructured Section 165 should read as follows:

"165. Judge`s power to put question or order production.- (1) Subject to the provisions of sub-Sections (2), the Judge may, in order to discover or to 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 may order the production of any document or thing:

Provided that the parties or their agents shall not be entitle.-

(a) to make any objection to any such question or order, or,

(b) without the leave of the court, to cross-examine any witness upon any answers given in reply to any such question.

(2) Nothing in sub-Section (1) shall authorize a Judge to-

(a) ask or compel a witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce, under the provisions of this Act or under any other law for the time being in force, if the questions were asked or the documents were called for by the adverse party; or

(b) dispense with primary evidence of any document, except in the cases hereinbefore excepted.

(3) Notwithstanding anything contained in this Section, the judgment of the Court must be based upon facts declared relevant under this Act and duly proved."