Judge's Power to Put Questions and Order Production — Section 168 BSA / Section 165 IEA

Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — re-enacting Section 165 of the Indian Evidence Act, 1872 (IEA) — confers on the trial judge a reserve power of extraordinary breadth: in order to discover or obtain proper proof of relevant facts, the judge may ask any question, in any form, at any time, of any witness or party, about any fact, and may order the production of any document or thing. Neither the parties nor their representatives are entitled to object to any such question or order, nor — without the leave of the court — to cross-examine the witness on any answer given in reply to such a question.

The provision is the textual seat of the activist trial judge. It rejects the pure-umpire model of the Indian trial system in favour of one in which the judge is a participant in the search for truth, free to question, summon, and demand documents in pursuit of a just decision. Read this chapter together with the chapter on Evidence Act and BSA, and alongside the procedural counterpart in Section 348 BNSS (previously Section 311 CrPC), which confers the parallel power to summon any person as a witness or recall and re-examine any person already examined.

Statutory anchor: Section 168 BSA

The provision can be paraphrased as follows: the judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he thinks fit, in any form, at any time, of any witness or of the parties, about any fact; he may order the production of any document or thing; and neither the parties nor their representatives are entitled to make any objection to such question or order, nor (without leave of the court) to cross-examine any witness upon any answer given in reply.

The BSA-IEA correspondence table records that the words "proper", "please", and "relevant or irrelevant" are excluded from the BSA text, and that the word "agents" in the IEA is replaced by "representatives". The substantive doctrine is unaffected. The breadth of the power, the freedom from objection, and the need for the judge's leave before cross-examination on Section 168 BSA answers all carry forward intact.

The architecture of the power

Section 168 BSA confers four distinct authorities on the trial judge:

1. To put any question. The judge may ask questions "in any form" — leading or non-leading, on cross-examination lines or in clarification — and "at any time", whether during examination-in-chief, cross-examination, or re-examination.
2. To question any witness or party. The witness need not have been called by either side. The judge may also question the parties themselves on factual matters within their knowledge.
3. To order production. The judge may direct the production of any document or thing whose existence is suggested by the record, even if neither party has applied for its production.
4. To deny objection. The parties cannot object to a Section 168 BSA question or order. The only review of the judge's exercise of the power is through the appellate process.

The Bombay High Court in Yusuf H. Abbas v. Bhagwandas P. Nangpal AIR 1949 Bom 346 and the Madras High Court in K.L. Krishna Ayyar v. T. Balakrishna Iyer AIR 1934 Mad 199 (2) settled the doctrine that the power is independent of the rules of admissibility — the judge may put even questions about facts that, if asked by a party, would be inadmissible. The judgment, however, must rest only on relevant facts duly proved (the IEA's older language tied this to facts "declared by this Act to be relevant" — the doctrine survives under the BSA's closed list of relevant facts).

The reserve nature of the power

The Supreme Court in Hanuman Ram v. State of Rajasthan (2008) 15 SCC 652 captured the operational character of Section 165 IEA — and now Section 168 BSA — as a reserve power. The trial court is not bound to ask questions in every case; the discretion is wide, and its exercise must be judicious. The Court in Ram Chander v. State of Haryana AIR 1981 SC 1036 added the institutional caution: the wider the power, the greater the necessity for application of judicial mind. A judge who uses Section 168 BSA recklessly — putting hostile questions, taking sides, or cross-examining witnesses on lines that should have been left to the parties — risks vitiating the trial.

The Supreme Court in Ram Chander went further and held that, in the process of asking questions, a judge may not rebuke or threaten the witness with prosecution for perjury. The power is to elicit truth, not to coerce it. The dignity of the proceeding and the credibility of the witness's response both depend on the judge's restraint in exercising the power judiciously.

The limits on Section 168 BSA

The provision itself imposes three explicit limits on the judge's power, and case law has added two more:

• The judgment must rest on relevant facts duly proved. The judge may ask any question, but the verdict must be anchored in evidence that meets the BSA's relevancy test. A wide-ranging Section 168 BSA inquiry that produces material outside the BSA's relevancy categories cannot ground the decision.
• Privilege is preserved. The judge may not compel a witness to answer any question or produce any document which the witness would be entitled to refuse if the question were asked, or the document called for, by the adverse party. The privilege rules under competency and privilege bind the judge as much as they bind the parties.
• Improper questions are barred. The judge may not ask any question which it would be improper for any party to ask, nor dispense with primary evidence of a document except in cases specifically allowed by the BSA. Section 168 BSA is a power to elicit truth within the BSA's framework; it is not a power to override the framework.
• Self-incrimination protection survives. The Supreme Court in cases on voice samples and DNA tests has held that physical, non-testimonial evidence elicited under Section 165 IEA does not violate Article 20(3) of the Constitution. The doctrine carries forward to Section 168 BSA.
• The judge must not become a partisan. The Supreme Court in State of Rajasthan v. Ani AIR 1997 SC 1023 emphasised that a trial may be vitiated if the judge's questioning crosses the line from elicitation of truth to advocacy for one side.

Section 168 BSA and Section 348 BNSS — complementary jurisdiction

The Supreme Court has repeatedly held that Section 165 IEA (now Section 168 BSA) and Section 311 CrPC (now Section 348 BNSS) are complementary provisions that together confer on the trial judge the jurisdiction to act in aid of justice. Jamatraj Kewalji Govani v. State of Maharashtra [1968] 3 SCR 415 settled the doctrine. Section 348 BNSS gives the judge the power to summon any person as a witness, examine any person in attendance, or recall any person already examined; Section 168 BSA gives the judge the power to question any such witness on any fact, in any form, at any time. Read together, the two provisions vest the trial court with the operational toolkit it needs to elicit truth even where the parties themselves have failed to bring out the material.

The Supreme Court in Habeeb Mohammad v. State of Hyderabad AIR 1954 SC 51 went further and held that a trial is vitiated if a judge fails to summon defence witnesses wherever available and who may materially help to prove the defence version. The negative formulation matters: Section 168 BSA and Section 348 BNSS are not merely permissive provisions. In appropriate cases, the trial court has a duty to invoke them. The duty is most acute in criminal trials where the accused is unrepresented or under-represented and material defence evidence is being missed. The chapter on direct oral evidence under Section 54 BSA explains why courts cannot simply rely on hearsay accounts when first-hand witnesses are available — Section 168 BSA is the procedural lever for bringing those first-hand witnesses into the record when the parties have failed to do so.

Section 168 BSA and Section 161 BNSS

A recurrent doctrinal issue is the relationship between Section 168 BSA and Section 161 BNSS (previously Section 162 CrPC), which restricts the use of police-recorded statements during trial. The Supreme Court in Raghunandan v. State of Uttar Pradesh 1974 AIR 463 held that Section 162 CrPC does not impair the special powers of the court under Section 165 IEA. The doctrine carries forward: Section 161 BNSS does not curtail the court's reserve power under Section 168 BSA. A trial court may, under Section 168 BSA, put a question to a witness that draws out a contradiction with a Section 161 BNSS statement, even though a party could only do so under the structured framework of Sections 145 and 157 BSA on cross-examination and hostile witnesses respectively.

The narrow construction of Section 161 BNSS is necessary, the Court reasoned in Raghunandan, because a wider reading would prevent the trial court from exercising its truth-finding function under Section 168 BSA. The harmonisation requires reading the BNSS provision as restricting the parties only, not the court.

Section 168 BSA and forensic evidence

An emerging strand of doctrine concerns the use of Section 168 BSA to direct accused persons to provide non-testimonial physical evidence — voice samples, handwriting samples, biological samples for DNA testing. The High Court in Smt. Leena K. v. State of Uttar Pradesh 2015 (89) ACC 556 held that under Section 165 IEA, the trial judge was within his jurisdiction, in order to discover or obtain proper proof of relevant facts, to call upon the accused persons to give their voice sample in court to determine their involvement in the crime. Because the accused is not being asked about any fact within his knowledge — the voice sample is physical, non-testimonial evidence — there is no compulsion to be a witness against himself within Article 20(3).

The doctrine has been extended to handwriting samples under Section 311A BNSS (previously Section 311A CrPC) and to DNA samples in paternity disputes — categories where the underlying scientific testimony is governed by the rules in expert and opinion evidence under Section 39 BSA. Section 168 BSA, read with the relevant procedural provision, is the statutory engine through which the trial court accesses physical evidence the parties have not chosen to produce.

Distinguishing Section 168 BSA from Section 157 BSA

Section 168 BSA is sometimes confused with Section 157 BSA on hostile witnesses — both permit cross-examination-style questioning. The two are conceptually distinct:

• Section 157 BSA is a party's remedy against its own witness. The party applies; the court grants permission; the party puts the questions.
• Section 168 BSA is the court's own power. No application is needed; the questions are put by the judge, not by counsel; the parties cannot object.
• Under Section 157 BSA, the questions are governed by the rules of cross-examination (leading, impeaching). Under Section 168 BSA, the questions are governed only by the limits set out in the provision itself — privilege, primary evidence, and improper questioning. The doctrinal architecture is summarised in the chapter on leading questions under Section 144 BSA, which works through the form-of-question rules that bind the parties.
• A party may, with leave of the court, cross-examine a witness on a Section 168 BSA answer. A Section 157 BSA cross-examination is itself the cross-examination; no separate leave question arises.

The chapter on the hostile witness doctrine works through Section 157 BSA in detail; the present chapter focuses on Section 168 BSA's wider, court-driven power.

Section 168 BSA and primary evidence

The provision contains an explicit reservation: the judge may not dispense with primary evidence of a document, except in the cases specifically permitted by the BSA. The reservation matters because, without it, the wide power to order production might be read as a roving licence to admit secondary evidence whenever the trial court thought it convenient. The Adhiniyam closes that interpretation: Section 168 BSA's order-of-production power is an authority to obtain documents, not an authority to bypass the rules of proof. The party tendering a document still has to satisfy the primary-evidence rule unless one of the secondary-evidence categories applies.

BSA shifts in Section 168 — minor but worth noting

The BSA-IEA correspondence table flags three textual changes between the IEA and the BSA:

1. The word "proper" is dropped from the IEA's reference to "proper proof of relevant facts" — the BSA simply speaks of "proof of relevant facts".
2. The word "please" is dropped from "any question he pleases" — the BSA uses "thinks fit".
3. The phrase "relevant or irrelevant" is excluded — the BSA refers only to relevant facts.
4. The word "agents" is replaced by "representatives" — a modernisation aligned with current legal-services usage.

None of these changes alters the substantive doctrine. The case law on Section 165 IEA continues to govern. What the BSA's drafting does is tighten the statutory language without disturbing the architectural breadth of the power.

The provision in civil trials

Although the most-cited case law on Section 168 BSA arises in criminal contexts, the provision is equally available in civil trials. A civil judge faced with a partial or evasive cross-examination of a key witness may invoke Section 168 BSA to put direct questions; a civil judge presiding over a complex commercial trial may, on noticing that documents in the possession of one party have not been produced, invoke the order-of-production power. The civil-procedure counterpart in Order XVI Rule 14 CPC and the inherent power under Section 151 CPC supply the procedural authority to summon; Section 168 BSA supplies the questioning authority once the witness is in the box.

The Supreme Court has consistently emphasised that the duty of the trial judge in a civil case is the same as in a criminal case so far as truth-finding is concerned. Where the trial judge is satisfied that crucial documentary evidence is being withheld, the order-of-production power under Section 168 BSA is the operative remedy. The complementary doctrine of adverse inference for non-production of documents under Section 119 BSA (previously Section 114(g) IEA) reinforces the trial court's authority — a party that resists a Section 168 BSA order of production faces the additional risk of an adverse inference being drawn against it.

Section 168 BSA and judicial-officer training

The provision is a recurring topic in judicial-officer training programmes for newly-appointed civil judges and judicial magistrates. Three training emphases are worth highlighting for the aspirant who will soon sit on the bench:

• Use the power to clarify, not to advocate. The judge's questions should aim at filling gaps in the record — clarifying ambiguities in cross-examination, drawing out the witness's full account on a relevant topic, or ensuring that material facts have been put to the witness for a response. The questions should not lean toward one side's narrative.
• Record the reasons. Although Section 168 BSA does not require the judge to record reasons before exercising the power, it is good practice to note in the deposition why a particular question is being put or a particular document called for. The notation aids the appellate review and shields the trial from the charge of partisanship.
• Use the power to protect under-represented parties. In trials where one side is unrepresented or poorly represented, Section 168 BSA is the trial court's mechanism for ensuring that material defences are explored. The duty articulated in Habeeb Mohammad applies most acutely in such cases.

Comparative position: the activist judge in Indian doctrine

The Indian model under Section 168 BSA can be compared to the position in adversarial common-law jurisdictions, where the judge is more strictly an umpire and intervenes only to clarify or to prevent injustice. The Indian provision is closer to the inquisitorial model in giving the judge an affirmative role in the search for truth. The Supreme Court has consistently endorsed this comparative position, treating Section 168 BSA as an Indian statutory innovation — preserved by the BSA — that distinguishes Indian trial practice from a pure adversarial model. The doctrine connects naturally to the chapter on the facts a court may notice without proof, which is another mechanism by which the Indian trial court goes beyond the materials placed before it by the parties.

Search-intent overlay: what to remember

For Civil Judge prelims, judiciary mains, and judicial-service interviews, four propositions on Section 168 BSA recur:

1. The power is wide — any question, any form, any time, any witness, any fact — but the judgment must rest on relevant facts duly proved.
2. The power is reserve in nature; its exercise must be judicious, and a judge who crosses into advocacy or coercion vitiates the trial (Ram Chander, State of Rajasthan v. Ani).
3. Section 168 BSA and Section 348 BNSS are complementary; together they form the trial court's truth-finding toolkit, and a duty to invoke them arises in appropriate cases (Habeeb Mohammad, Jamatraj Kewalji).
4. The provision operates within the BSA's privilege, primary-evidence, and improper-questioning limits — it is a power to elicit truth, not to override the framework.

Conclusion

Section 168 BSA is the textual home of the activist Indian trial judge. It rejects a pure-umpire model in favour of one in which the trial court participates in the search for truth — putting questions, summoning documents, and accessing physical evidence the parties have not chosen to bring forward. The breadth of the power has been carefully bounded by case law: the judge must remain within the BSA's framework, must respect privilege and primary-evidence rules, and must not cross from elicitation into advocacy.

For the aspirant, mastering Section 168 BSA means understanding both halves of the doctrine: the wide affirmative power, and the institutional restraints that prevent its abuse. The judiciary aspirant who can articulate both halves — and who can place Section 168 BSA in relation to its procedural counterparts in the BNSS, and to the appellate review architecture under improper admission and rejection of evidence — has done the work that judicial-service interviews and mains questions test for.