This article is written by Tanya Gupta, a 2nd-year law student, from BVP-New Law College, Pune. In this article, the author has discussed the concept of “Judge’s power to put questions or order production”.

Introduction

It is the judge’s power or right to put questions to witnesses related to a particular case which is expressly recognised in Section 165 of the Indian Evidence Act, 1872. It is expected from the judge as well as it is his duty to be well aware of all the evidence presented before him to discover the truth. In order to give the fair verdict or judgement, it is mandatory for the judge to question witnesses on points which the lawyer have either willingly overlooked or left. If the judges are not satisfied with the way in which examination of witnesses is conducted by the lawyer he has the right and duty to intervene with the questions.

Court’s power to ask questions

It is the duty of a judge to discover the truth and for that purpose, he may ask any question in any form at any time to the witness about any fact relevant or irrelevant related to the case but this he must do without trespassing the function of the counsel and without appearing to frighten the witness.

There is no time limit for which the judge may ask a question and if he has not got the depth of the matter he should further go with the examination no matter whatever is the number of questions required to disclose the truth. Under Section 165 of Indian Evidence Act, 1872 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. It is the discretionary power of the judge to give permission for cross-examination of the witnesses.

Section 165 of Evidence Act, 1872 and Section 162 of the Code of Criminal Procedure

It is true to state that Section 162 of Criminal Procedure Code imposes a ban on the use of statements of witnesses recorded during police investigation but under Section 165, a court has the right to use the statement made by the witnesses during the investigation. The restriction imposed under Section 162 of the Criminal Procedure Code cannot limit the power of the court under Section 165 of Evidence Act.

Section 162 of Evidence Act, 1872 and Section 311 of the Criminal Procedure Code

The main objective of Section 162 of Evidence Act is to enable the Court to reach the truth irrespective that the prosecution or defence has failed to produce some essential evidence which is necessary to give the fair verdict. The court may summon any witness at any stage of the proceeding until the judgement is delivered. It is cleared from this section that a Court can call the witness at any stage but if it is possible it should examine the witness before the defence is closed. The Section consists of two mandatory parts which are as follows:

• Giving discretionary powers to the Court to examine any witness at any stage
• It compels the Court to examine the witness if his evidence produced before him is essential for judgement of the court.

Under Section 311 of The Code of Criminal Procedure, 1973 the court can summon or examine or re-examine the witness before the Court. However, Section 311 does not provide that the Court gives permission to prosecution to produce any witness or documents which is already examined or recorded in the Court. It should be kept in mind that the courts are not to act as agent of any of the parties under this section.

Under the first part, the judge may call any witness whose evidence is considered helpful in giving judgement. Under the second part, the judge may call any witness if it appears to him to be essential for the only decision of the court. The purpose of both the parts of the section is to end the summon by calling the witnesses and not to be an agent of any of the parties.

Section 311 does not allow party to examine or re-examine any witness as it gives the discretion to the court to examine them. If a witness is examined under Section 311 the party whose case is supported by evidence can cross-examine and ask a leading question but if the prosecution case is closed and then court examine prosecution witnesses it is considered as illegal because by doing this the court provides the undue advantage to the prosecution. The court can act in this way when it is a matter of justice and good conscience.

Summoning of witnesses after the defence is closed

Section 165 clearly explains there is no limitation on the power of the court to summon the witness provided the court has a bonafide opinion for the just decision of the case. It is clearly inferred from section 165 that the requirement of giving only the decision of the case cannot limit the power of the court for calling the witness.

Whenever there is any type of formal defect in evidence which was already recorded in court during the proceedings the witnesses may be summoned by the court to remove that defect. The High Court of every state can also direct to take additional evidence in the interest of justice and direction of retrial can also be given only in extraordinary situations. It is also true that magistrates also have discretionary power to call any witness at any time at any stage but it should not be the opinion to give an unfair advantage to any of the party.

Order of production and examination of witnesses

Section 135 of evidence act explains the order in which witnesses should be produced and examined shall be regulated by the law relating to criminal and civil procedure and in absence of any such law, it is the discretionary power of the court. The order of examination involves two things which are as follows:

• In the proceedings either criminal or civil which party wants to examine his witness first.
• In the proceedings in which order the witnesses are to be examined.

In civil cases, the party who has the burden of proof has the right to begin first to examine his witness and in criminal proceedings, the prosecution has the right to begin first.

It is the lawyer’s advantage to decide the order in which he has to present his witnesses and examined. It comes from the practice and experience of the lawyer which makes him decide the order. Although it is the counsel discretionary power to decide the order but this section gives the power to the court to dictate the order in which witnesses has to be produced.When the council begins to examine the witness the another should be kept out of the courtroom if he is already sitting in the courtroom he has been asked to leave the courtroom.

Judge’s to decide the admissibility of the witnesses

Section 136  of The Indian Evidence Act, 1872 deals with the power of a judge to decide the admissibility of the witnesses. In order that the evidence may not go beyond its proper limits for which it is produced, the judges have the power to ask a question in whatever manner the evidence is relevant. The judges also have to see that the evidence which has been brought on the record must be relevant.

The court must decide at the time when the evidence is produced whether it is admissible or not. He must subject the evidence to objections which ultimately would save his time but the question of admissibility is to be decided when the council have given the opportunity to address the court.

For example, A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of denial depends on the identity of the property. The court has the discretionary power to either require the property to be identified before the denial of possession of the property is proved or permit the denial of the possession to be proved before the property is identified.

Examination in chief

Section 137 in The Indian Evidence Act, 1872 explains the examination in chief. The examination of a witness called by his own party is known as examination in chief. When a witness presents himself before the court, he has to give an oath or affirmation. Generally, his name and how he is related to the case is asked. Then it is the duty of the council to ask about all material facts and to make facts recorded in the court which are necessary to be proved.

The object of examination in chief is to discover the truth, to prove the facts which are in the favour of the party which is calling the witnesses. If there has been no examination in chief of a witness on a particular fact then he cannot be cross-examined on those facts by the opposite counsel. The order of examination in chief is always first during the proceedings in the court on any side either prosecution or defendant. Examination in chief is one of the necessary parts of the judicial proceedings.

Section 138 explains the order of examination that is, all the witnesses first have to be chief examined on both the sides either prosecution or defendant and then cross-examined and then if party desires can be re-examined. The examination in chief and cross-examined should be related to relevant facts.

Cross-examination

Section 139 in The Indian Evidence Act, 1872 explains cross-examination of witnesses of a person to produce documents. A person summoned to produce mere documents is not regarded as a witness until he is related to the case and he cannot be called as a witness. If a person is summoned only to produce a document which is necessary for the case, may appear to the court and present it if he has the possession of it and if he does not have the possession of the document he may inform to the court through an application. There is no provision in the law regarding a person who produces the documents can become a witness.

Cross-examination need not be confined to what has been spoken in examination in chief. The wider scope which is given in cross-examination so that any deviation from the facts can challenge the character, credibility of the witness. Once a party even by mistake enters in the witness box and swears for the oath he is called as a witness and will be subjected to cross-examination by the opponent part

When a fact is stated in chief examination is not cross-questioned in cross-examination it is regarded that the statement is accepted by the opponent party. When the evidence given by a witness appears to be unacceptable and unreliable and not cross-examined it doesn’t mean that it is considered as credible in the court. The court is not at all bound to accept the evidence or facts they have the authority to cross-examine on the behalf of opponent counsel. If no opportunity is given to cross-examine a witness his evidence produced before the court must be excluded.

Leading questions

Section 141 of the Indian Evidence Act, 1872 deals with the leading questions. Leading questions are defined as a question which suggests an answer which the person asking the question wishes to receive. Leading question should not be asked in the chief examination or re-examination. The examples of leading questions have you not lived with him for ten years? Are you not in service of Ram? Have you not lived for ten years with Rahul? In these types of questions, the counsel clearly suggests the answer instead of asking the answer. His intention is not to gain information instead of it he suggests the answer. The answers for the leading questions are generally given in “yes” or “no” 

Conclusion

Examination of witnesses is very important for any case whether it belongs to the civil or criminal nature and both the procedural law explain the examination of witnesses. Section 135 to 166 of The Indian Evidence Act, 1872 explains the examination of witnesses in which act covers all the things, like who can first examine the witnesses during the examination of witnesses and what are the relevant facts that are accepted during the examination of witnesses.

It also covers what are the questions asked by an advocate during the cross-examination of witnesses and what questions are not asked during the cross-examination. It also tells the power of judges during the examination of witnesses and at last, gives the provision related to the power of the jury and assessors to ask the question during the examination of witnesses. 

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