SIKSHA O ANUSANDHANNATIONAL INSTITUTE OF LAW

Submitted for the project and and report presentation for the course of

B.B.A.L.L.B (Hons.) – 7th Semester

Academic Year: 2020-2025

JUDGES POWER TO PUT QUESTION AND ORDER PRODUCTION

SUBMITTED BY: SOUBHICK BISWAL

REGISTRATION NO.-2041801090

SUBMITTED TO: MRS. IPSITA ACHARYA

ASST. PROFESSOR OF LAW, SNIL

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 DECLARATION
I, Soubhick Biswal bearing Regd. No. – 2041801090, hereby declare that this
Research Project work entitled JUDGES POWER TO PUT QUESTION AND
ORDER PRODUCTION has been originally carried out by me under the
guidance and supervision of MRS. IPSITA ACHARYA, Assistant Professor of
Law, Siksha O Anusandhan National Institute of Law. This work has not been
submitted either in whole or in part of any Degree at any University.

SOUBHICK BISWAL

2041801090

4th year, 7th semester

2020-25

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 ACKNOWLEDGEMENT

Success in any shape is the manifestation of perspiration and diligence on the part
of person performing task but without a mentor and a guide constant Cooperation
the task remains incomplete I take this Opportunity to reward but deep sense of
gratitude to MRS. IPSITA ACHARYA , ASSISTANT PROFESSOR, SOA NATIONAL
INSTITUTE OF LAW Who’s support guidance and Inspiration help me to
successfully complete this project.
I am also thankful to my DEAN Prof. Dr.S.A.K AZAD sir, for his support and
guidance through out the academic year, where we learnt a lot about practical
application of law in real situations.

I am also thankful to my parents , Friends and all those who have helped and
supported me in completion of this project work. Your efforts and gestures towards
will be cherished forever.

SOUBHICK BISWAL
4th year,2020-25
Soa National institute of law

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 CERTICERTIFICATE BY THE GUIDE

This is to certify that Soubhick Biswal bearing Reg. No. 2041801090 of BBA.LLB
(H) has successfully completed his 7th Semester Research Project entitled JUDGES
POWER TO PUT QUESTION AND ORDER PRODUCTION as provided by
the institution for the academic session 2023-2024. And he has prepared this project
report under my guidance. This report has not been submitted to any other university
or institution for the award of any degree/diploma/certificate.

MRS. IPSITA ACHARYA

Assistant Professor of LAW
Siksha O Anusandhan National Institute of Law

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 TABLE OF CONTENTS
Topics Page No.

Chapter -1 (Introduction) 6
1.1 Judges power put question 6
1.2 Judges' Power to Order Production 8
1.3 Courts power to ask question 10
1.4 Main objective of sec 162 11
1.5 Summoning of witnesses after the defence is closed 12
1.6 Order of production and examination of witness 12
1.7 Judge’s to decide the admissibility of the witnesses
13
1.8 Examination in Chief
13
1.9 Cross Examination
14
1.10 Leading questions
15
1.11 Importance
15-17
Chapter -2 (Legal Provisions)
18
2.1 Article 142
19
2.2 Article 141
20
2.3 Section 165 Of Evidence Act
22
2.4 Section 311 of Crpc
2.5 Section 91 of CRPC 24

2.6 Provisions under CPC,1908 25

Chapter -3 (Judicial Analysis) 32-37

Chapter -4 (Conclusion) 38-45

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 INTRODUCTION
The context of the topic "Judges' Power to Put Questions and Order Production" lie at the heart
of the judicial process in legal proceedings. The role of judges in a legal system is multifaceted,
and their power to ask questions and order the production of evidence plays a crucial role in
ensuring fair and efficient trials.

In any legal proceeding, the judge acts as an impartial decision-maker responsible for interpreting
and applying the law. Judges preside over trials, hearings, and other legal proceedings to
adjudicate disputes and determine the guilt or innocence of the accused. To arrive at just and
informed decisions, judges are granted certain powers to facilitate fact-finding and to ensure that
all relevant evidence is considered.
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.

1.1 Judges' Power to Put Questions

The power of judges to put questions in India is an essential aspect of the country's judicial
system and plays a significant role in ensuring justice and fairness in legal proceedings. This
power is primarily derived from Article 142 of the Indian Constitution, which empowers the
Supreme Court of India to pass orders as necessary to do "complete justice" in any matter before
it. Additionally, Article 141 declares that the law declared by the Supreme Court is binding on
all courts within the territory of India.

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The authority to put questions, particularly in the form of suo moto (on its own motion) action,
allows judges to proactively intervene in cases where they believe there might be a miscarriage
of justice or where the legal issues are of significant public interest 1.
This power is vital for maintaining the rule of law and upholding the principles of justice,
especially when there might be a legislative or executive gap in addressing certain issues.
However, there are certain critical aspects and concerns regarding the exercise of this power that
deserve attention:
1. Judicial Activism vs. Judicial Restraint: While judicial activism can be beneficial in
addressing pressing issues, it can also raise concerns about the judiciary overstepping its
boundaries and encroaching on the domains of the legislature and the executive. Striking
the right balance between judicial activism and judicial restraint is crucial to maintain the
separation of powers and uphold the democratic principles of governance.
2. Lack of Accountability: When judges exercise their power to put questions suo moto,
they do not have to respond to any specific petition or appeal. This lack of accountability
might lead to unchecked power and could potentially lead to subjective decisions that
may not align with the legal framework or public opinion.
3. Transparency and Fairness: While the intentions behind suo moto actions may be
noble, there are concerns about transparency and fairness. Critics argue that the power to
put questions should be used sparingly and with clear guidelines to ensure that it is not
subject to abuse or personal biases.
4. Potential Delays: Suo moto actions, though important, may lead to additional delays in
the judicial process. Taking up cases on the court's own motion might disrupt the court's
regular schedule and delay other pending cases, which could affect the overall efficiency
of the judicial system.
5. Prioritization of Issues: Deciding which issues merit suo moto intervention is a complex
task. The court must carefully assess whether the matter truly warrants immediate
attention and whether it falls within the purview of the judiciary's authority.

1
https://www.legalserviceindia.com/legal/article-910

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 6. Public Perception: The judiciary's power to put questions, while designed to uphold
justice, might be perceived differently by different sections of society. Some may view it
as a necessary tool to protect the rights of citizens, while others might see it as judicial
overreach.
To mitigate these concerns and maintain the legitimacy of the judiciary's power to put questions,
several measures can be adopted:
 The Supreme Court should lay down clear guidelines for invoking suo moto jurisdiction,
ensuring that it is only used in exceptional circumstances where other legal remedies are
inadequate.
 The court should provide detailed reasoning for its suo moto actions, ensuring
transparency and accountability in the exercise of this power.
 Judicial training and sensitization programs can be conducted to educate judges about the
proper use of this power and its implications on the balance of power in a democratic
system.
 Encouraging public debate and discussion on the exercise of suo moto jurisdiction can
help the judiciary understand public concerns and gain broader perspectives before taking
such actions.
In conclusion, the power of judges to put questions, including suo moto actions, is a double-
edged sword. While it serves as a crucial mechanism to address critical issues and uphold
justice, it also demands caution, accountability, and transparency to ensure that it is not misused
or perceived as an overreach of judicial authority. Striking the right balance is essential to
maintain the integrity and effectiveness of the Indian judicial system.

1.2 Judges' Power to Order Production

In India, judges possess the power to order the production of documents, evidence, or witnesses
during legal proceedings. This power is essential for the effective administration of justice and
plays a significant role in ensuring a fair trial. However, like any judicial power, the authority to

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 order production is not without its challenges and potential pitfalls. Here is a critical analysis of
this power2:
1. Ensuring Relevance and Admissibility: One of the primary concerns is ensuring that
the documents or evidence ordered to be produced are relevant to the case at hand and are
admissible under the applicable laws. Judges must be cautious not to allow a fishing
expedition where the parties are permitted to explore any and all materials without proper
justification.
2. Balancing Rights: The power to order production must strike a balance between the
rights of the parties involved. On one hand, it is crucial for the court to have access to all
relevant evidence to arrive at a just decision. On the other hand, this power should not
unduly burden or violate the rights of the parties, such as the right to privacy or privilege
against self-incrimination.
3. Managing Delays: The process of ordering production can lead to delays in the legal
proceedings, particularly if one party refuses to comply or if there are disputes over the
scope of production. Judges need to manage these situations efficiently to ensure a timely
resolution of the case.
4. Contempt and Compliance: The power to order production is effective only when
parties comply with the court's directions. Failure to comply can lead to charges of
contempt of court. However, such coercive measures must be used judiciously, as they
can affect the trust and cooperation between the court and the parties.
5. Burden on Weaker Parties: In certain cases, ordering production may place a heavy
burden on the weaker or economically disadvantaged parties, who may struggle to gather
and produce the required documents or evidence. Judges must be sensitive to this issue
and take appropriate steps to avoid further marginalizing such parties.
6. Potential for Abuse: Like any discretionary power, there is a risk of abuse.
Unscrupulous judges may misuse the power to order production to harass or intimidate

2
https://blog.ipleaders.in/judge-power/

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 parties. To prevent such abuse, there should be mechanisms for oversight and checks on
the exercise of this power.
7. Technology and Complexity: With the increasing reliance on electronic evidence and
complex digital data, judges must be adequately equipped to deal with the technical
aspects of ordering production of such evidence. Training and awareness in handling
digital evidence are essential for the effective use of this power.
8. Cross-Examination and Authenticity: The power to order production must be
complemented with the right to cross-examine witnesses and verify the authenticity of
documents. This ensures a fair and thorough examination of evidence.
In conclusion, the power of judges to order production is a vital tool in the pursuit of justice in
India. However, it requires careful and responsible use to address the challenges and potential
pitfalls associated with it. Judges must exercise this power with fairness, transparency, and a
clear understanding of its implications on the parties involved. Additionally, ongoing training
and awareness about emerging issues related to evidence, technology, and data are crucial to
maintaining the efficacy of this power in the evolving legal landscape.

1.3 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.

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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.

1.4 MAIN OBJECTIVE OF SECTION 162

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
closed3. 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.

3
https://www.advocatekhoj.com/library/lawreports/evidenceact18725

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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.

1.5 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.

1.6 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.

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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.

1.7 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.

1.8 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

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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.

1.9 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

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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.

1.10 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” .

1.11 Importance of Judges' Power to Put Questions and Order

Production:
The importance of judges' power to put questions and order production in legal proceedings
stems from several fundamental reasons:

a. Fact-Finding: The primary goal of any legal proceeding is to ascertain the truth and establish
the facts surrounding a case. By asking questions, judges can seek clarifications, gather additional
information, and fill gaps in the evidence presented by the parties. This ensures a more complete
and accurate understanding of the case's merits, ultimately aiding in the just resolution of the
matter.

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b. Enhancing Evidentiary Record: Judges' power to order the production of evidence,
documents, or witnesses enables them to access relevant information that might otherwise be
withheld or overlooked. This power ensures that all pertinent evidence is brought to light,
promoting a fair trial and preventing any party from unduly benefitting from the suppression of
crucial information.

c. Ensuring Due Process and Fairness: Judges' ability to ask questions and order production
contributes to upholding the principles of due process and fairness in legal proceedings. By
actively engaging in fact-finding, judges can identify and address potential biases, prejudices, or
discrepancies in the evidence presented by the parties. This helps to safeguard the rights of all
individuals involved and maintain the integrity of the legal process.

d. Effective Adjudication: In complex cases, the judge's power to put questions and order
production streamlines the trial process. By proactively seeking relevant information, judges can
focus on the key issues, prevent unnecessary delays, and ensure a more efficient adjudication of
the case.

e. Impartiality and Neutral Fact-Finder: Judges are neutral and impartial parties in legal
proceedings. Their active involvement in questioning and ordering production helps create a level
playing field for all parties, ensuring that justice is served without favouritisms or prejudice.

The purpose of the project is to conduct an in-depth exploration and analysis of judges' power to
put questions and order production in legal proceedings. The project aims to achieve the following
objectives:

a. Comprehensive Understanding: To provide a thorough and comprehensive understanding of

the scope, limitations, and implications of judges' powers to put questions and order production.

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This involves examining relevant laws, regulations, case law, and legal doctrines related to the
topic.

b. Identifying Best Practices: To identify best practices and guidelines for judges in utilizing
their power to put questions and order production effectively and ethically. By drawing on
comparative studies and analysing case studies, the project seeks to highlight successful
approaches from different legal systems.

c. Ethical Considerations: To explore the ethical considerations associated with judges' powers.
The project will examine the balance between the need for judicial intervention and the
preservation of parties' rights, ensuring that the exercise of these powers is fair and just.

d. Public Perception and Legal Community Views: To gauge the perceptions and opinions of
legal professionals and the general public regarding judges' power to put questions and order
production. Understanding these viewpoints will contribute to a more holistic assessment of the
topic.

e. Recommendations for Reform: Based on the findings and analysis, the project aims to
propose recommendations for potential reforms or improvements in the exercise of judges'
powers. These recommendations should align with the principles of fairness, efficiency, and due
process in legal proceedings.

f. Contribution to Legal Scholarship: Ultimately, the project seeks to contribute to the existing
legal scholarship by shedding light on a critical aspect of the judicial process and fostering
discussions on how to enhance the administration of justice.

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 LEGAL PROVISIONS

2.1 Article 142 of the Constitution

This article grants the Supreme Court of India the power to pass any decree or order necessary for
doing "complete justice" in any matter before it. The court's power under this article is not limited
by any other provision of the Constitution, and it can pass orders to enforce its judgments
effectively.

It deals with the Supreme Court's power to exercise its jurisdiction and pass an order for doing
complete justice in any cause or matter pending before it. It provides the apex court with a special
and extraordinary power and is meant to provide justice to litigants who have suffered traversed
illegality or injustice in the course of legal proceedings.

Article 142(1) states that “The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or order so made shall be enforceable throughout
the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President
may by order prescribe”.

The article was used in the Ram Janmabhoomi-Babri Masjid land dispute case and was
instrumental in the handover of the disputed land to a trust to be formed by the union government.

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The SC invoked its plenary powers in the Union Carbide vs Union Govt case and intervened
to provide compensation to victims of the deadly Bhopal Gas Tragedy.

2.2 Article 141 of the Constitution

According to this article, the law declared by the Supreme Court of India is binding on all courts
within the territory of India. This provision gives the judgments of the Supreme Court a binding
precedent value and ensures uniformity in the interpretation of laws.

It states that “The law declared by the Supreme Court shall be binding on all courts within the
territory of India” .
The main object of doctrine of precedent is that the law of the land should be clear, certain and
consistent so that the Courts shall follow it without any hesitation.
In Union of India v. Raghubir Singh (AIR 1989 SC 1933), the Supreme Court held that “the
doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial
decisions, and enables an organic development of the law, besides providing assurance to the
individual as to the consequence of transactions forming part of daily affairs and, therefore, the
need for a clear and consistent enunciation of legal principle in the decisions of a Court.”
In India, whenever, a judgment is pronounced on a question of law, the judgment has to refer to
some provision in the written law and then proceed to interpret or expound that provision in the
written law. There is no provision in the written law of India, on the interpretation of which it can
be held that judgments of Single Judges are binding on other Single Judges of the same High Court
and that judgments of Division Court are also binding on other Division Courts of the same High
Court, but they are not binding on Division Courts consisting of more members than the earlier
Division Court.
As to the binding nature of decisions of Courts Article 141 of the Constitution is the sole provision
and the Constitution deliberately did not go beyond Article 141.Binding on all courts: The words

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‘binding on all courts in India’ though wide enough to include the Supreme Court, do not include
the Supreme Court itself, as it is not bound by its own judgments but is free to re-consider them in
appropriate cases. Article 141 has the effect, in addition to investing the decisions of the Supreme
Court with a binding force, of creating constitutional organ whose declaration of law shall be
binding on all courts in the Republic.

2.3 Section 165 of the Indian Evidence Act, 1872:

This section empowers the judge to ask any question at any time during the trial, to any witness,
or to the parties themselves. The objective is to elicit relevant and material information that might
be crucial to the just determination of the case 4.

It states “In any inquiry before it or trial before it of any offence, the judge may, in order to discover
or to obtain proper proof of relevant facts or circumstances, ask any question to any witness at any
time during the inquiry or trial."
(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

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https://blog.ipleaders.in/judge-power/

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 (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."
This provision grants the judge the authority to ask questions to any witness during the course of
an inquiry or trial. The purpose of this provision is to enable the judge to elicit relevant facts or
evidence that might be essential for the proper adjudication of the case.

The judge's power to put questions under Section 165 is distinct from the examination-in-chief,
cross-examination, and re-examination conducted by the parties or their advocates. It allows the
judge to seek clarification or additional information directly from the witness, especially when the
answers provided during the regular examination are not sufficient or when there is ambiguity in
the evidence presented.

The power conferred by Section 165 is an important tool in the hands of the judge to ensure a fair
and just trial. However, it must be exercised with caution and in a manner that does not prejudice
the rights of the parties or unduly influence the course of the proceedings. The judge must maintain
impartiality and use this power only when necessary to arrive at a well-informed decision based
on the evidence presented before the court.

This Section supplements the provisions of Order 11 Rule 14, Order 13 Rules 1, Order 16 Rule
18, 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 .

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.

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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'.
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.
.Under Section 165, even irrelevant questions can be put with a view to lead to relevant evidence
such questions may be either admissible or inadmissible. Relevancy is a bigger circle while
irrelevancy is a small circle within that bigger circle.
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 . Section 165 of the Evidence Act cannot be used
for the purpose of introducing evidence in contravention of the law.

2.4 Section 311 of the Code of Criminal Procedure (CrPC), 1973

This section empowers the judge to summon and examine any witness at any stage of the inquiry
or trial if the court considers it necessary for the proper adjudication of the case. The court can
also recall and re-examine any witness already examined.

Page 22
Section 311 of the Code of Criminal Procedure (CrPC) in India empowers the judge to summon
and examine any person as a witness, or recall and re-examine any person already examined during
the course of an inquiry or trial. The section grants discretionary power to the judge to ensure that
justice is served and no relevant evidence is left out during the proceedings.

Section 311 of the Code of Criminal Procedure, 1973:

"Power to summon material witness, or examine a person present: Any court may, at any stage of
any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine
any person in attendance, though not summoned as a witness, or recall and re-examine any person
already examined; and the court shall summon and examine or recall and re-examine any such
person if his evidence appears to it to be essential to the just decision of the case."

Wide Discretionary Power: Section 311 provides the court with wide discretionary power to
summon or examine any person at any stage of the inquiry, trial, or other proceeding. The court
may use this power when it believes that the evidence of the person is essential to arrive at a just
decision.

Summons or Examination of Witnesses: The section allows the court to summon any person as
a witness or examine any person already present in the court, even if not formally summoned as a
witness.

Recalling and Re-examination: In addition to summoning or examining new witnesses, the court
can also recall and re-examine any person who has already been examined. This provision ensures
that no relevant evidence is left out or overlooked during the proceedings.

Essential to the Just Decision: The court can exercise its power under Section 311 if it deems the
evidence of the person to be essential for a fair and just decision in the case. The court must satisfy

Page 23
itself about the relevance and necessity of the evidence before summoning or re-examining a
witness.

Principle of Fairness and Natural Justice: Section 311 is grounded in the principles of fairness
and natural justice. It allows the court to ensure that all relevant evidence is considered, and no
party is prejudiced due to the absence of essential witnesses.
Limitations: While Section 311 grants the court broad discretionary powers, it is not absolute.
The court must exercise this power judiciously, and it should not be used to unduly delay the
proceedings or harass any party. The court should balance the interests of justice with the need to
expedite the trial.

2.5 Section 91 of the Code of Criminal Procedure (CrPC), 1908

These sections grant the court the power to issue summons to produce documents or other material
evidence necessary for the adjudication of the case. Section 91 relates to documents in a case,
while.

Section 91 of the Code of Civil Procedure, 1908 states:

"Summoning of witnesses and documents: (1) The Court may, at any time, either of its own motion
or on the application of any party, summon and examine any person as a witness or require any
person to produce any document or other thing."

This section confers the power upon the court to summon witnesses or require the production of
documents or other relevant material evidence. The court can do so either on its own initiative (of
its own motion) or based on an application made by any of the parties to the case.

Page 24
2.6 Provisions under CPC,1908
Discovery of documents
When the adversary party is simply compelled to disclose the documents which are under its
possession or power, then that is called as the discovery of documents. The discovery of
documents is covered under the Rule 12-14 Order XI of the code.
Any party to a suit under oath may apply for an order from the court for the discovery of
documents which are related to the matter in question of the suit from the adversary party.
An appropriate court can order any party of the suit to dispose of the documents which are in
its power or possession to the asking party. However, the party need to be related to the suit5.
Conditions
While the discovery of documents is being asked, two conditions need to be taken care of by
the court:-
1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs.
Objection against discovery
The party can raise an objection if the documents required to submit comes under the purview
of the privileged documents. However, objecting by filing an affidavit would not be enough,
the party who is objecting also needs to give proper reasoning behind such objection. The
proper reasoning will enable the court to decide the objection raised by the party. It is open to
the court to inspect the documents and check the viability of the objection raised by the party.
Another objection which can be filed is that discovery is not necessary at this stage of the suit.
Admissibility of document

5
https://blog.ipleaders.in/documents-cpc/#Discovery_of_documents

Page 25
The documents which are asked under the discovery of documents are not always admissible
in court. The documents may be admissible in the case if they are relevant to the case and
which may have some impact on the issues dealt under the case.
In Gobinda Mohun v. Magneram Bangur & Co, it was held that:
“Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to
obtain discovery of an adversary’s documents is a very wide one and is not limited merely to
those documents which may be held to be admissible in evidence when the suit is ultimately
tried.
It is true that in a suitable case a defendant may object to the production of a document on the
ground that it relates solely to his title, but if on the other hand, that document may have some
bearing in support of the plaintiff’s title, such objection cannot be validly raised. If an order
for discovery is made under Rule 12 of Order 11 all the documents relating to the case should
be embodied in the affidavit of documents by the person against whom the order for discovery
is made. If however, the defendant considers that he is entitled to protection in respect of the
production of any particular documents which may be entered in the affidavit under Order 11,
Rule 13 of the Code, he will be at liberty to raise such objection at the proper stage of the
proceedings if and when he is ordered to produce such documents under Order 11, Rule 14 or
to give inspection of them under Order 11, Rule 18.
The Calcutta High Court sought to distinguish the Judgment of the A.P. High Court in P.
Varalakshmamma v. P. Bala Subramanyam 1958 wherein it was held that:
It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency
of any suit to order the production of a document. The words “at any time” are very significant
and important. Rule 14 does not require that the order for production should be made only
after an order of discovery is obtained under Order 11 Rule 12 C.P.C.”.
Documents disclosing evidence

Page 26
The document which is related to the evidence of the adverse party can not be ordered by the
court. Such orders can be detrimental to the administered party which is restricted under the
code.
Affidavit of documents
The documents under this rule are provided with the affidavit as under the Form No. 5 in
Appendix C with required variations as per circumstances.
Privileged documents
Privileged documents are covered under “crown privilege” which is based on the doctrine of
“public welfare is the highest law”. However, even if this doctrine is given the importance, it
does not mean that justice shall not be paramount. Thereby when parties use it as an umbrella
of defence, then under such circumstances, the court has the right to verify the admissibility
of such defence. After checking the document, the court can decide on the matter. Mere
assertion by the party will not be entertained or accepted by the court.
Oppressive discovery
While ordering the discovery of the documents it shall not be an oppressive order by the court.
The court while using its discretion power shall consider two questions:
1. Whether it is important to order such discovery;
2. Whether it is impossible for the administered party to give the documents ordered under
discovery.
Rules as to discovery
The general rules for the discovery of the documents are as follows:
1. Any party can get an order from the court for the discovery of the documents or for
inspection of documents.
2. It is the discretion of the court to pass such an order.
3. The court can use its power any time during the suit, either suo moto or by the
application of the party.

Page 27
 4. The court shall not pass an order for the discovery, inspection or production until the
written statement has been filed by the defendant.
5. No such order shall be passed if the application is made by the defendant until he has
not filed a written statement.
6. Discovery of the document shall not be made if the court is not of the opinion that this
order will lead to fair disposal of the suit or useful for saving cost.
7. A party to whom an order of discovery of documents has been passed, as a general rule,
shall produce all the documents which are under his possession related to the suit.
8. If the parties are taking any legal protection under the privileges provided under the
code, then the court shall verify such documents and give the protection.
9. Failure to comply or default from the side of the parties to the order for discovery,
production or inspection, can lead to adverse inference on the party.
Inspection of documents
Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided.
As per Rule 12 of the code the party can compel other parties to produce the documents
without filing an affidavit to apply to the court, relating to any matter of question-related to
the suit. However, such documents need not be admissible in court unless they give out some
connection in a matter of controversy.
As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided
into two categories:
1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the
power or possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not the
latter one.
Privileged documents are :
1. Public records;

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 2. Confidential communication;
3. Documents which have exclusive evidence of the parties’ title.
Such mentioned privileged documents are protected from the production. So to get benefit
from this privilege and to avoid the risk of repetition, the court can order the parties to produce
the document to the court. And the court can inspect such documents and ascertain the validity
of the claims which were made to make that set of documents underprivileged.
Premature discovery
As per Rule 20, a discovery is termed as premature discovery or inspection:
1) When the right to discovery is based on the determination of any issue or question in dispute;
or
2) For any reason, it is desirable that any issue or question in a suit should be determined before
deciding upon the right of discovery.
Non-compliance with order of discovery or inspection
As per Rule 21, the order of the court is binding in nature, and the parties who do not comply
shall be liable to pay the penalty. Hereby, we can understand that the intent of the legislature
to provide such provision is:
1. To compel the parties to disclose all the material documents and facts on oath.
2. To restrict the parties from coming up with new documents which are actually in power
or possession of the party during the trial.
The court has the discretion to postpone a premature inspection or discovery. Under such
circumstances the first thing court shall do is to determine that question or issue and
afterwards, deal with the discovery. The main logic of this provision is to enable the court to
distinguish between the difference of deciding an issue in suit from deciding the suit itself.
However, it needs to be kept in mind that this provision will not work if the discovery in itself
is necessary for solving the issue or question.
The importance of such provision is that if the defendant denies complying with the provision
it will be deemed that the defense from the defendant’s side will be struck off and that will

Page 29
restore the position of the defendant to where he had been as if he has not defended. In the
case, if the plaintiff does not comply to the provisions then it will lead to an adverse effect that
means the plaintiff will disentitle to file a case as a fresh suit on the same cause of action and
res judicata will be applicable. Therefore, non-compliance will impact the case adversely.

Order 11, Rule 14

It shall be lawful for the Court, at any time during the pendency of any suit, to order the production
by any party thereto, upon oath of such of the documents in his possession or power, relating to
any matter in question in such suit, as the Court shall think right; and the Court may deal with such
documents, when produced, in such manner as shall appear just.

Order 13, Rule 1

(1) The parties or their pleaders shall produce, 67[at or before the settlement of issues], all the
documentary evidence of every description in their possession or power, on which they intend to
rely, and which has not already been filed in Court, and all documents which the Court has ordered.

(2) The Court shall receive the documents so produced : Provided that they are accompanied by
an accurate list thereof prepared in such form as the High Court directs.

Order 16, Rule 18

Where any person arrested under a warrant is brought before the Court in custody and cannot,
owing to the absence of the parties or any of them, give the evidence or produce the document
which he has been summoned to give or produce, the Court may require him to give reasonable
bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or
security being given, may release him, and, in default of his giving such bail or security, may order
him to be detained in the civil prison6.

6
https://www.lawdadi.in/cpc/order-XVI-rule-17-cpc-application-of-rules-10-to-13-code-of-civil-procedure.html

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Order 18, Rule 17
This rule of the Code enables Court, at any stage of a suit, to recall any witness who has been
examined (subject to the law of evidence for the time being in force) and put such questions to
him as it thinks fit.

Order 18, Rule 18

Power of Court to inspect, The Court may at any stage of a suit inspect any property or thing
concerning which any question may arise and where the Court inspects any property or thing it
shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such
inspection and such memorandum shall form a part of the record of the suit.

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 JUDICIAL ANALYSIS

In the Ram Chander vs State of Haryana (19817) case, the Supreme Court held that in order to
protect innocent and weak court has the duty to bound to use their special powers and bring justice.

In the Case of Ritesh Tewari vs State of Uttar Pradesh 8Apex court in the above case held that
security of justice is by the full discovery of facts and full knowledge of truth is necessary which
can be brought by sec 165 powers.

9
In the case of Zahira Habib Ulla Sheikh vs State of Gujarat (2004) the Supreme Court
observed that sec 165 of the Indian Evidence Act and sec 311 of Code of criminal procedure are
into existence for the purpose to bring whole truth before the court. It is a mandatory duty of the
court to exercise their powers in the necessary circumstances.

In Samjhauta Express Blast case 10, a special court was appointed by the Indian Government. In
the blast of 2007 victims included 43 Pakistani citizens and 10 Indian Citizens. In a shocking
decision given by the NIA court, all accused were acquitted and chaos erupted. Many questions
were raised on the efficiency of judges sitting in the bench for the above decision. Then opposition
and now ruling government of India one of the prominent leaders accused the judges quoting that

7
1981 AIR 1036, 1981 SCR (3) 12
8
MISC. BENCH No. - 24614 of 2020
9
Appeal (crl.) 446-449 of 2004
10
CRA-D-657-DB of 2015 (O&M)

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It seems to the public that inefficiency of the court was the reason for free acquittal of these
accused. The special powers of judges to question was not efficiently used or rather not used at
all. The NIA court was a failure to recognize the crime of accused on relying prosecution.
While defending their decision of court NIA counsel Rajan Malhotra said “the court has acquitted
all accused and concluded that the prosecution failed to prove the charge of conspiracy. It was a
long-drawn trial, many of the witnesses turned hostile and, as per the verdict, the chain of evidence
could not be proven”. The whole burden of proof was on the shoulders of prosecution and court
refused to cooperate in order to maintain impartiality.

In the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) , the
Supreme Court reaffirmed the inherent powers of the court to put questions to witnesses to
elicit the truth and ensure proper administration of justice. The court emphasized that the
power to put questions should be exercised cautiously, and the judge must remain impartial
and not cross the line into the role of an advocate.

11
In Mohinder Singh Gill v. Chief Election Commissioner (1977) case, the Supreme Court
observed that the judge has the right to put questions to witnesses to clear ambiguities and
elicit material facts. However, the court also emphasized that the judge should not act as an
adversary or engage in a partisan examination of witnesses.

12
In State of Maharashtra v. Sukhdev Singh (1992) The Supreme Court held that the court
has the power to ask questions to witnesses and can seek clarification on any points relevant
to the case. However, this power should not be used to intimidate or harass witnesses or
parties.

11
1978 AIR 851 1978 SCR (3) 272
1978 SCC (1) 405
12
(1992) 3 SCC 700

Page 33
In Maneka Gandhi v. Union of India (1978) 13Although not directly related to judges' power
to put questions, this landmark case emphasized the importance of natural justice. It
established that the right to be heard and the right to a fair trial are fundamental rights under
Article 21 of the Constitution of India. This principle further supports the court's power to
put questions for the fair determination of cases.

14
In Sankaran Moitra v. Sadhna Das (1997): In this case, the Supreme Court emphasized
that the power to put questions should be exercised with caution, as it may lead to the danger
of the court becoming a witness or an advocate.

In State of Rajasthan v. Ani15, 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."
16
In Krishna v. Balkrishna case , 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 obt aining
'indicative evidence' which may lead to discovery of something relevant.

13
[1978] 2 SCR 621
14
2006 (2) R.C.R. (Criminal) 389
15
AIR 1977 SC 1023
16
I.L.R. 10 Bom. 610

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In Mohanlal v. Sankla 17 , 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 suc h as
comes before it in the way which the law recognizes in the form of legal evidence.
In Amarnath v. R18 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.
19
In Hari Ram v. Hira Singh "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".

20
Indian Oil Corporation Ltd. v. M/s. Raja Transport (2009) case, the Supreme Court of
India held that the court has the power to order the production of documents, even if they are
not specifically mentioned in the list of documents filed by a party.
21
Tamil Nadu v. Union of India (2005) In this case, the Supreme Court of India recognized
the concept of "collegium system" for the appointment of judges, which emphasizes the ro le
of the judiciary in the appointment process.

22
Zahira Habibullah Sheikh and Anr. v. State of Gujarat (2006) significant case, the
Supreme Court of India emphasized the importance of fair trial and witness protection and
held that the court has the power to order the production of witness statements and related

17
DID No. 261/10
18
851 C 143(L)
19
AIR 1984 SC 396
20
(2009) 8 SCC 520
21
AIR 2005 SC 3353
22
AIR 2004 SC 3114

Page 35
evidence. In its judgment on April 12, 2004, the Supreme Court held that the trial in the
lower court had not been fair and impartial due to the intimidation of witnesses and
victims. The Court observed that the victims, including Zahira Sheikh, were not given
adequate protection and were subjected to undue influence and pressure to change their
statements.
The Court took a stern view of the state's failure to protect witnesses and ordered a retr ial of
the case outside Gujarat. The Court further directed the Central Bureau of Investigation (CBI)
to conduct the investigation into the case and identified a few states where the retrial could
be conducted for a fair and impartial trial. The Zahira Habibullah Sheikh case is notable for
highlighting the issues of witness intimidation, lack of witness protection, and flaws in the
criminal justice system during sensitive and high-profile cases. The case drew attention to the
need for fair trials and the importance of protecting witnesses to ensure justice is served. The
judgment in this case emphasized the responsibility of the state to ensure the safety and
security of witnesses and the integrity of the trial process. It also brought attention to the
larger issue of communal violence and the challenges in prosecuting cases involving such
violence.
The "Best Bakery case" played a crucial role in raising awareness about the protection of
witnesses and the need for special measures to ensure justice in cases o f communal violence
and other sensitive matters in India.

23
State of Maharashtra v. Dr. Praful B. Desai (2003) The Supreme Court held that the
prosecution is bound to produce all documents and statements relied upon by it to the accused
during criminal proceedings.
Lalita Kumari v. Government of U.P. (2014) case 24 , the Supreme Court laid down
guidelines for the registration of FIR (First Information Report) in cognizable offenses and

23
(2003) 4 SCC 601
24
WRIT PETITION (CRIMINAL) NO. 68 OF 2008

Page 36
the need for prompt investigation. the Supreme Court of India addressed the power and
duty of police officers to register First Information Reports (FIRs) in cases of cognizable
offenses. While this case primarily focuses on the duty of the police, it indirectly touches
upon the role of judges in ensuring the proper registration of FIRs and the prompt
investigation of cognizable offenses.
Lalita Kumari, the petitioner, had approached the Supreme Court seeking directions to the
police to register an FIR for the abduction of her husband, who had been missing for some
time. The police had initially refused to register an FIR, stating that they would conduct a
preliminary inquiry before registering the complaint.
Key Points from the Judgement:
1. Duty to Register FIRs: The Supreme Court emphasized that the police have a
mandatory duty to register FIRs in cognizable offenses without conducting any
preliminary inquiry. If information discloses the commission of a cognizable offense,
the police must register the FIR promptly and initiate an investigation.
2. Zero FIR: The Court clarified that in cases where the offense falls under the
jurisdiction of a different police station, the FIR should be registered at the nearest
police station without delay. It can later be transferred to the appropriate police station,
and this process is referred to as a "Zero FIR."
3. No Need for Prior Approval: The Court held that there is no requirement for prior
approval from higher authorities for registering an FIR in cases of cognizable offenses.
The duty to register FIRs is immediate and does not depend on any administrative
approval.
4. Informant's Right: The Court recognized the right of the informant to have the
information recorded in writing and to receive a copy of the FIR. If the information is
given orally, the police officer must reduce it to writing and read it back to the
informant for confirmation.
5. Supervision by Magistrate: The Court highlighted that the duty of the police to register
FIRs and investigate cognizable offenses is not dependent on the outcome of a

Page 37
 preliminary inquiry. However, the Court also mentioned that if an FIR is registered
and an investigation is already initiated, the Magistrate can exercise his or her powers
of supervision and control under Section 156(3) of the Code of Criminal Procedure
(CrPC).

The Lalita Kumari case has had a significant impact on police practices in India. The judgment
reinforced the importance of prompt registration of FIRs in cognizable offenses and clarified
that the police should not delay or avoid registering FIRs based on preliminary inquiries. This
ensures that victims of crimes have their complaints recorded immediately and sets the stage
for the initiation of a timely and effective investigation.
While the primary focus of the judgment is on police conduct, judges play an essential role
in supervising and controlling the investigation process as per the CrPC. By ensuring that
FIRs are promptly registered and investigations are conducted diligently, judges can uphold
the principles of justice and fair trial during criminal proceeding

25
Rameshwar Singh v. Satyendra Narayan Singh This Patna High Court judgment
established that the court can order the production of documents in its possession, even if
they are not specifically sought by the parties.

25
Criminal Miscellaneous No.12229 of 2014

Page 38
 CONCLUSION

In this extensive analysis, we have delved into the concept of Jude's power to order production
and put the question. This power, also known as "judicial subpoena," enables a judge to
summon witnesses, documents, or other evidence to be produced in a court proceeding.
Additionally, a judge may exercise their authority to put questions to witnesses, which helps
ensure a fair trial and accurate fact-finding. Throughout this comprehensive examination, we
explored the historical origins, legal foundations, practical implications, and potential
challenges of this crucial judicial power. As we conclude this exploration, it becomes evident
that Jude's power to order production and put the question plays a central role in the pursuit
of justice within the legal system 26.

The power of Jude to order production and put the question has roots dating back to the
common law traditions of England. Over centuries of legal evolution, this authority was
enshrined as a fundamental component of the judicial process. It emerged as an essential
means to facilitate the truth-seeking process, ensuring a fair trial by allowing judges to assess
evidence firsthand. Despite its historical significance, this power has continued to evolve to
adapt to modern legal systems and procedural norms.

The legal foundation of Jude's power to order production and put the question varies across
jurisdictions. While some countries explicitly grant this power in their legal codes, others
derive it from precedents and customary practices. The overarching principle is the pursuit of

26
https://www.lawyersclubindia.

Page 39
truth and the delivery of justice. However, it is essential to strike a balance between judicial
discretion and the rights of the parties involved in a legal proceeding to prevent abuse of this
power.

The ability of a judge to order the production of evidence and pose questions to witnesses
plays a critical role in ensuring fair trials. By having direct access to witnesses and evidence,
judges can verify testimonies and evaluate their credibility. This assists in preventing perjury
and enhances the accuracy of fact-finding. A well-informed judge can better discern the truth,
ultimately leading to just outcomes.

Jude's power to order production and put the question significantly contributes to efficient
fact-finding. Instead of relying solely on the parties to present evidence, judges can actively
participate in the discovery process. This is particularly beneficial in complex cases where
the truth might be obscured or when parties are not forthcoming with evidence. The ability to
summon witnesses and documents expedites the trial process and aids in achieving a timely
resolution.

While the power to order production and put the question is essential for a fair trial, it is not
without challenges. One of the primary concerns is the potential for judicial overreach or bias.
To mitigate this, legal systems implement safeguards such as the right to cross-examination,
rules of evidence, and the opportunity for parties to challenge the judge's decisions.
Additionally, the balance between the need for a thorough investigatio n and protecting the
rights of witnesses and parties must be carefully maintained.

Jude's power to order production and put the question is an indispensable element of the legal
system that serves the pursuit of truth and the delivery of justice. Its hist orical roots and legal
foundations highlight its importance in ensuring fair trials and efficient fact -finding.
However, this power must be wielded judiciously, with appropriate safeguards in place to

Page 40
prevent abuse and protect the rights of all involved parties. By striking a delicate balance
between judicial authority and the rule of law, this power remains a cornerstone of a just and
equitable legal system. As legal systems continue to evolve, the ongoing examination of this
power is necessary to uphold its integrity and effectiveness in the pursuit of justice.
The importance of a judge's power to put questions and order production cannot be overstated.
These judicial powers play a crucial role in ensuring a fair and effective legal system.

The ability of a judge to put questions to witnesses serves several vital purposes:

a. Clarification of Testimony: Witnesses may sometimes provide ambiguous or unclear

statements during their testimony. Judges can ask specific questions to seek clarification and
ensure that the facts are accurately presented.
b. Uncovering the Truth: Judges can identify gaps or inconsistencies in witness testimonies
by asking probing questions. This aids in revealing the truth and helps prevent perjury.
c. Evaluating Credibility: By observing witness demeanor and responses firsthand, judges
can assess their credibility. This is particularly important in determining the reliability of
witness accounts.
d. Balancing Inequality Between Legal Representation: In cases where one party has
stronger legal representation than the other, judges can level the playing field by asking
questions on behalf of the underrepresented party. This helps ensure a fair trial.
e. Preservation of Impartiality: Judges must remain impartial throughout the trial. By asking
questions, they can avoid the appearance of favoring one party over another and maintain the
perception of a fair judicial process.

The authority of judges to order the production of evidence, documents, or witnesses is

equally significant for the following reasons:

Page 41
a. Discovery of Evidence: In some cases, parties may be unwilling or unable to provide
relevant evidence voluntarily. By ordering production, judges can ensure that all relevant
evidence is presented before the court.
b. Preventing Spoliation: In situations where evidence may be destroyed or tampered with,
judges can issue production orders to secure the evidence promptly. This prevents the
destruction of critical information.
c. Leveling the Playing Field: Judges can use their power to order production to prevent
parties from withholding evidence or using unfair tactics to gain an advantage. This ensures
that both sides have access to relevant evidence.
d. Avoiding Unnecessary Delays: Sometimes, parties may attempt to prolong the legal
process by refusing to produce evidence. Judges can use their power to expedite the trial by
compelling the production of necessary evidence.
e. Promoting Transparency: The power to order production promotes transparency in the
legal process. It ensures that all evidence considered by the judge is available to both parties,
fostering a sense of openness and accountability.
f. Enhancing Judicial Decision-making: Access to all relevant evidence empowers judges
to make well-informed and just decisions. This reinforces public trust in the judiciary and the
overall legal system.
The powers of judges to put questions and order production are integral to the fair and
effective functioning of the legal system. These powers contribute to uncovering the truth,
ensuring a level playing field, and preserving the integrity and impartiality of the judiciary.
By actively participating in the fact-finding process and securing access to relevant evidence,
judges play a critical role in delivering justice and upholding the rule of law.
In conclusion, the powers of judges to put questions and order production of evidence are
indispensable pillars of a fair and effective legal system.

These judicial powers play a crucial role in the pursuit of truth, the delivery of justice, and
upholding the rule of law. Through the ability to question witnesses directly, judges can

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clarify testimonies, evaluate credibility, and uncover the truth, ensuring accurate fact -finding
during trials.

Furthermore, the authority to order the production of evidence and documents is equally vital,
as it ensures that all relevant information is presented before the court. This power prevents
parties from withholding critical evidence, levels the playing field, and promotes transparency
and accountability in the legal process.
However, the exercise of these powers must be judicious and impartial. Judges must strike a
delicate balance between actively participating in fact-finding and respecting the rights of the
parties involved. To safeguard against abuse, legal systems have established checks and
balances, such as the right to cross-examination and rules of evidence.
While historical precedents have shaped these powers, they continue to evolve with changing
societal norms and the advancement of legal principles. The dynamism of the legal landscape
necessitates constant review and adaptation to ensure that t hese powers serve the ultimate
goal of justice.
In India, as in other jurisdictions, the courts have consistently recognized the significance of
these powers in upholding the principles of fairness, transparency, and truth-seeking. Notable
precedents have affirmed the discretionary authority of judges to put questions and order
production, emphasizing the importance of their use to prevent miscarriages of justice.

The development of a judge's power, including the power to put questions and order
production of evidence, has been a gradual and evolutionary process influenced by historical,
legal, and societal factors. The evolution of these powers can be traced through several key
stages:
1. Common Law Origins: The roots of a judge's power can be found in the common law
traditions of medieval England. During this period, judges played an active role in
fact-finding and examining witnesses. They had the authority to question witnesses
directly, with a focus on determining the truth in legal disputes.

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2. Statutory Codifications: Over time, the power of judges to put questions and order
production of evidence became recognized and formalized in statutes and legal codes.
Various legal systems began to explicitly grant judges these powers, emphasizing their
importance in facilitating fair and effective legal proceedings.
3. Equity Courts: The development of equity courts in England further expanded a
judge's powers. Equity judges had the authority to order parties to produce evidence
and documents, ensuring that all relevant information was considered in resolving
disputes.
4. Adversarial System: The emergence of the adversarial system in the legal process
brought changes to the exercise of judicial powers. While judges continued to retain
the authority to question witnesses, the adversarial system placed greater
responsibility on the parties to present evidence and witnesses.
5. Evolution of Judicial Discretion: As legal systems modernized, the concept of
judicial discretion evolved. Judges were granted more flexibility in how they exercised
their powers, allowing them to adapt their approach based on the complexities of each
case.
6. Influence of Precedents: Judicial precedents and landmark decisions have played a
significant role in shaping the scope and application of a judge's powers. Notable cases
have clarified and refined the limits and responsibilities associated with these powers.
7. Human Rights Protections: The recognition of fundamental human rights has
influenced the development of a judge's power. Legal systems have sought to balance
the judge's authority with the rights of the accused, witnesses, and other parties to
ensure a fair trial and protect individual liberties.
8. Advancements in Legal Procedures: The evolution of legal procedures and rules of
evidence has impacted the exercise of judicial powers. Modern legal systems have
established specific rules for questioning witnesses, producing evidence, and
maintaining the integrity of the trial process.

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 9. Adaptation to Contemporary Challenges: The ongoing development of a judge's
power continues to address contemporary challenges, such as the use of digital
evidence, complex international cases, and the need for efficient fact -finding.
Overall, the development of a judge's power, including the power to put questions and order
production, has been a dynamic and iterative process. It reflects the continuous efforts of legal
systems to strike a balance between judicial authority and protecting the rights of all parties
involved in legal proceedings. As societies evolve and legal principles advance, these powers
will continue to be refined to ensure a fair and just administration of justice.

In conclusion, the powers of judges to put questions and order production are not only legal
tools but essential instruments for the judiciary to fulfil its duty of ensuring justice and
safeguarding the rights of the parties involved in legal proceedings. The responsible and fair
exercise of these powers remains central to maintaining public trust and confidence in the
legal system, thereby preserving the foundation of a just and equitable society.

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