.

Power of a judge under the indian evidence act-its extent and

limitation-a critical examination in the light of observation
made my malimath committee and law commission of india.

Submitted by:

Sagar kamrani; PRN- 16010324361

Division- ‘D’; Batch:2016-21

In

january, 2020

Under the Guidance of

DR.Sarfaraz Ahmed Khan

(Director)

Symbiosis Law School, Hyderabad

Symbiosis International Deemed University, PUNE

Introduction
A judge is a person who presides over court proceedings, either alone or as a part of a panel of
judges. The powers, functions, method of appointment, discipline, and training of judges vary
widely across different jurisdictions.

Power of judge under the Indian evidence act is defined under section 165, this section defines
judge’s power to put question or order production, it authorizes the Judge in order to discover or
to obtain proper proof of relevant facts to ask any question he pleases, in any form, at any time of
any witness, or of the parties, about any fact relevant or irrelevant

Section 165 of the Evidence Act confers a wide discretion upon the Judge. The object of section
165 is to discover the truth or to obtain proper or relevant facts. A judge should endeavour to
elucidate the facts and record evidence in clear and intelligible manner. A judge in a criminal
trial is not merely a disinterested auditor of the contest between the prosecution and the defence.
But it is his duty to elucidate points left in ambiguity by either side,intentionally or
unintentionally, to come to a clear understanding of the actual event that occurred and to remove
the ambiguities as far as possible. The Supreme Court has criticized the silence of trial judges
who have permitted the trials to develop into a contest between the prosecution and defence
resulting into contradictions entering into the trial in several cases. If a criminal court is to be an
effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a
mere recording machine. He must become a participant in the trial by showing intelligent and
active interest. The Judge has to take a participatory role in the trial. He has to monitor the
proceedings in aid of Justice in the manner that something which is not relevant is not
unnecessarily brought on record. He has to control the proceedings effectively so that the
ultimate objective i.e. truth is arrived at. The judgement must be based upon facts declared by
this Act to be relevant and duly proved under this Section and shall not authorize any judge to
compel any witness to answer any question or to produce any document which such witness
would be eligible to refuse to answer or produce under Section 121 to 131, if the questions were
asked or the documents were called for by the opposite party nor shall the judge ask any question
which it would be not in proper way for any other person to ask under Section 148 and 149 nor
shall he dispense with primary evidence of any document except in the cases herein before
excepted.

Some of recommendation were made by malimath committes ,in which one of was Right to
silence,The panel recommended a modification to Article 20 (3) of the Constitution that protects
the accused from being compelled to be a witness against himself/herself. The Committee
suggested that the court be given freedom to question the accused to elicit information and draw
an adverse inference against the accused in case the latter refuses to answer. The Committee also
felt that the accused should be required to file a statement to the prosecution disclosing his/her
stand and the other was Presumption of innocence,in which the courts follow “proof beyond
reasonable doubt” as the basis to convict an accused in criminal cases. This, the committee felt,
gives “very unreasonable burden'” on the prosecution and hence suggested that a fact be
considered as proven “if the court is convinced that it is true” after evaluating the matters before
it.This committee also recommended Court’s power to summon any person, whether or not listed
as a witness if it felt necessary.

Research Methodology

Doctrinal legal methodology will be used for carrying out this research. Analytical method will
be used to identify what law currently is and to evaluate it’s efficiency

Research Question

What is relevancy of question asked by the judge to be considered in the final judgement?

What is the relevancy of cross examination on the basis of section 165 of IEA,1872?

What are drawbacks faced by the judge while performing his power under section 165 of indian
evidence act,1872?

Chapterisation

In this research, Chapter 1, titled ‘Introduction’ in it’s various parts, deals with the meaning of
judge, and also deals with powers of judge which is defined under section 165 of indian evidence
act.it also talks about some of examination made by both malimath committee and law
commission of india,furtherly extent and limitation of power of judge is also explained thereon.

Chapter 2, titled ‘critical examination made by malimath committee’ which talks about the
critical examination in the light of observation made by malimath committee

Chapter 3, titled, ‘critical examination made by law commission of india, tells about some of
reforms regarding power of judge under evidence act and also observations and recommendation
made by law commission of india.

Chapter 4, titled “section 165 of indian evidence act” deals with power of a judge that till what
extent one has power to question parties to the case.
Chapter 5, titled ‘Conclusion’ puts forward the findings of the comparison and attempts to
answer the questions that (a) What is the relevancy of cross examination on the basis of section
165 of IEA,1872?

(b). What are drawbacks faced by the judge while performing his power under section 165 of
indian evidence act,1872?

Report of literature review

Shantanu chakral in his work ‘Judge’s power to put questions or order production ,in this he is
talking about power of a judge which is defined under section 165 of indian evidence act,1872.
By this section a judge is empowered:

(i) To ask any question in any form and at anytime to any witness or to parties about any fact
either relevant or irrelevant.

(ii) To order the production of any document or thing.

According to author this section directs that a party or his agent shall be entitled to make any
objection when the court is exercising its power. It also provides that no party shall be entitled to
cross-examine the witness upon answer given by the witness. When any question is asked by a
judge no party can without permission of the court “examine or recall or re-examine any witness
for the interest of justice. A judge has wide power to participate in a trial to elicit the truth of the
case.

In the article written by Ehtisham Ali, Law Graduate from Teerthanker Mahaveer University
Moradabad (U.P).The articles discuss Examination of Witnesses Under Indian Evidence Act,
1872.in between of article he has discussed about power of judge according to indian evidence
act,1872.in which he has explained all the power of judge in different heads like Power of judge
to put questions production or order, Power of judge to put questions,the time, Cross
examination on answers given to the Court, Power of Court to ask questions

Ysrao judge in his work “examination of witness by the court in the absence of prosecutor” has
explained us about what all power a judge has to examine prosecution witness.in furtherance of
his article he also explain us about that how section 165 of indian evidence act,1872 confers vast
and wide powers on presciding officer of court

In the article named Burden of Proof in Criminal Cases and the Supreme Court which is written
by Dr K.N. Chandrasekharan Pillai,in this he is talking about how 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.