Report No. 185
Section 165
Judge's power to put questions or order production.
In the 69th Report, only certain structural changes were suggested in section 165. We accept the same, subject to making it clear that the power of the Court to put questions under section 165 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."
Section 166
This section refers to 'Power of Jury or assessors to put questions.
In the 69th Report, see Ch. 97, it was suggested (para 97.2) that the system of trial by jury has since been abolished in India. So far as assessors are concerned, special laws which deal with the role of assessor make adequate provision. Hence section 166 be deleted. We agree.
