Report No. 69
Power of the Judge
In order to elicit the truth or to get all facts necessary for a proper decision, the law gives certain powers to the court in section 165. If attention is confined to the proof brought forward by the parties, appropriate materials for decision may not be available and the truth may not always come out. Examination of witnesses may not have been conducted scientifically or skilfully, and things may have been left unsaid or obscure unintentionally, or as is sometimes seen intentionally1.
1. Sarkar Commentary on section 165.
96.2. So, whenever the judge finds that the examination has not been conducted in a way as to unfold the truth, or that obscurities in the evidence should be made clear and intelligible, it is not only his right, but also his duty, to probe into matters that he deems important.1 This the Act empowers the judge to do. He can put his own questions. But this power of interrogation is to be exercised within well-recognised limits by maintaining judicial calm and detachment and without assuming the functions of counsel.
The judge may intervene by questions any time he considers necessary, but if extended examination is necessary, it is usually made after the counsel have finished their task. The power conferred by section 165 is wide, in as much as the judge can put any questions which he considers fit for eliciting the truth. But there are certain limitations given in the section.
1. Sarkar Commentary on section 165.
96.3. Gist of the section.-
Under the section, 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". The history of the section1 shows that it was enacted in that wide form, because, in 1872, it was thought that in many of the lower courts of the country, neither were cases properly prepared, nor were witnesses properly examined, so that it was necessary to vest the judge with an over-all power to get at the truth by asking any questions he liked. But although a great deal of time has since passed, the section has remained on the statute book and we cannot say that even in the present circumstances, the section is not needed.
The powers conferred by the section can, therefore, still be claimed and exercised. "It is obvious that the judge contemplated by the section is not a mere umpire at a contest between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost."2 He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and, to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or wilfully avoided.
2. Stephen Introduction to the Evidence Act.
Explaining the object of the section, Stephen in his Introduction to the Evidence Act,1 wrote: "When a man has to inquire into facts of which he report, and facts relevant in the highest degree to facts in issue may often be extremely important for him to trace the most cursory and apparently futile report, and facts relevant in the highest degree to facts in issue may often be discovered in this manner.
A policeman or a lawyer engaged in getting up a case, criminal or civil, would neglect his duty altogether if he shut his ears to everything which was not relevant within the meaning of the Evidence Act. A judge or magistrate in India frequently has to perform duties "which in England would be performed by police officers or attorneys. He has to sift out the truth for himself as well as he can and with little assistance of professional kind. Section 165 is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth."
1. Stephen Introduction to the Evidence Act.
96.5. Indicative evidence.-
The effect of this section is that, in order to get to the bottom of the matter before it, the court will be able to look at and inquire into every fact whatever. A judge may ask any question he pleases about any irrelevant fact, if he does so in order to discover or to obtain proper proof of the relevant facts.1 It is, therefore, appropriate to say that the object of allowing the judge to ask irrelevant questions under this section is to obtain "indicative evidence" which may lead to the discovery of relevant evidence.2
1. Queen Empress v. Hari Lakshman, ILR 10 Born 185.
2. K.L. Krishna Ayyar v. T. Balakrishna lyer, AIR 1934 Mad 199(2) (201-202).
96.6. Nature of examination.-
As regards the nature of the examination, the judge may question the witness either in the manner and with the object followed by the parties, or he may avail himself of the more extended power of interrogation which is given to him under the terms of this section. It has been a matter of juristic dispute whether a judge can, on his own motion, put to the witness questions independently of counsel, so as to bring out points which counsel designedly or undesignedly overlook. On one side, it has been urged, in conformity with the scholastic view, that the judge is confined to the proof adduced by the parties.
On the other side, it is insisted that it is absurd for a judge with a witness before him not to do what he can to elicit, the, truth. So far as concerns the abstract principle, writers on the English common law repeatedly affirm the scholastic view that the judge must form his judgment exclusively on the proof brought forward by the parties. So far as concerns the practice,1 judges, both in England and in the United States, do not hesitate to interrogate a witness at their own discretion, eliciting any facts they deem important to the case. Best has discussed the matter in these terms-
"Again, the judge has a certain latitude allowed him with respect to the rules of forensic proof. He may ask any questions in any form and at any stage of the cause, and to certain extent even allow parties or their advocates to do so. This, however, does not mean that he can receive illegal evidence at pleasure; for, if, such be left to the jury, a new trial may be granted, even though the evidence were extracted by questions put from the Bench, but it is a power necessary to prevent justice being defeated by technicality, to secure indicative evidence and in criminal cases to assist in fixing the amount of punishment. And it should be exercised with due discretion."2
It is this latter object (the securing of indicative evidence) which is the main ground for the enactment of this section.
1. Wharton Evidence, section 281, cited in Woodroffe and Ameer Ali Evidence.
96.7. Power to be exercised with care.-
At the same time, there is a certain disadvantage to the judge when he examines a witness. One important drawback is that the judge may overlook the demeanour of the witness. This only shows the care to be exercised by the Judge.
We generally agree with what Best has said.1 The section does not seem to need any change in point of substance. But by way of structural improvement, we recommend the following redraft.
1. Para. 96.6., supra
Revised Section 165
165. Judge's power to put questions or order production.-(1) Subject to the provisions of sub-sections (3) and (4), 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.
(2) Neither the parties nor their agents shall be entitled-
(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 answer given in reply to any such question.
(3) Notwithstanding anything contained in this section, the judgment must be based upon facts declared by this Act to be relevant, and duly proved.
(4) Nothing in this section shall authorise the Judge-
(a) 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 questions were asked or the documents were called for by the adverse party; or
(b) to ask any question which it would be improper for any other person to ask under section 148 or 149; or
(c) to dispense with primary evidence of any document, except in the cases herein before excepted.