The Power of Judges to Question Witnesses: An In depth Analysis
Mr. Paramjeet Sangwan

The Power of Judges to Question Witnesses: An In depth Analysis

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Are you curious about the role and power of judges to question witnesses during legal proceedings? In this comprehensive article, we will delve into the concept of judges' power to put questions or order production, as outlined in Section 165 of the Indian Evidence Act, 1872. We will explore the significance of this power, the limitations imposed, and the interplay between various sections of the law. Whether you are a law student, legal professional, or simply interested in understanding the intricacies of the Indian legal system, this article will provide you with valuable insights.


Section 165 of the Indian Evidence Act, 1872 recognizes and bestows upon judges the power and responsibility to question witnesses in order to discover the truth and obtain proper proof of relevant facts. This power is crucial in ensuring a fair and just verdict, as it allows the judge to intervene when necessary, even if the lawyers have overlooked or omitted certain aspects of the case. The judge's ability to ask questions and order the production of documents or other evidence is central to the pursuit of justice.

The Judge's Power to Ask Questions

Under Section 165, a judge has the authority to ask any question, in any form, at any time, to any witness or party involved in the case, regardless of the relevance of the question. This power extends to both relevant and irrelevant facts, as the judge's primary objective is to unearth the truth. The parties and their agents are not entitled to object to such questions or orders, and cross-examination of a witness can only proceed with the leave of the court.

However, it is important to note that the judgment must be based on facts that are declared relevant under the Indian Evidence Act and duly proven. The judge's power to question witnesses does not extend to compelling a witness to answer a question or produce a document if the witness is entitled to refuse under sections 121 to 131 of the Act. Additionally, the judge must not ask any question that would be considered improper for any other person to ask under sections 148 or 149. Furthermore, the judge cannot dispense with primary evidence of any document, except in specific cases outlined in the Act.

The Relationship Between Section 165 and Section 162 of the Code of Criminal Procedure

Section 162 of the Code of Criminal Procedure imposes restrictions on the use of statements recorded during police investigations, prohibiting their admissibility as evidence. However, Section 165 of the Indian Evidence Act grants the court the power to use statements made by witnesses during such investigations. This means that even though Section 162 restricts the use of these statements by the prosecution, it does not limit the court's power to consider them under Section 165.

The Role of Section 162 of the Indian Evidence Act and Section 311 of the Criminal Procedure Code

Section 162 of the Indian Evidence Act serves the purpose of enabling the court to uncover the truth, even if the prosecution or defense fails to produce essential evidence. This section allows the court to summon any witness at any stage of the proceedings, until the judgment is delivered. It is advisable, however, for the court to examine a witness before the defense is closed, if possible. Section 162 has two mandatory parts:

Giving discretionary powers to the court to examine any witness at any stage.
Compelling the court to examine a witness if their evidence is essential for the judgment.

In contrast, Section 311 of the Criminal Procedure Code provides the court with the authority to summon, examine, or re-examine witnesses. However, it does not allow the court to permit the production of witnesses or documents already examined or recorded in court. It is important to note that the court should not act as an agent of any party under this section.

The court may call any witness whose evidence is deemed helpful in reaching a judgment or if the witness's testimony appears to be essential for the decision. The purpose of both parts of Section 311 is to facilitate the calling of witnesses and ensure a fair trial, rather than favoring any particular party.

Summoning Witnesses After the Defense is Closed

Section 165 clarifies that there are no limitations on the court's power to summon witnesses, as long as the court believes it is necessary for a just decision. The requirement of reaching a decision does not restrict the court's ability to call witnesses. In situations where there may be formal defects in the evidence already recorded in court, witnesses may be summoned to rectify these defects. The High Court of each state also has the discretion to direct the taking of additional evidence in the interest of justice. However, ordering a retrial is only done in extraordinary circumstances. Magistrates also possess discretionary power to call witnesses at any stage, but it should not be used to unfairly advantage one party.

Order of Production and Examination of Witnesses

The order in which witnesses should be produced and examined is regulated by the law relating to criminal and civil procedures, or, in the absence of such law, it is left to the discretion of the court, as stated in Section 135 of the Evidence Act. The order of examination involves two aspects:

In civil cases, the party with the burden of proof has the right to begin by examining their witnesses first. In criminal proceedings, the prosecution has the right to begin.
In both civil and criminal proceedings, the order in which witnesses are examined is determined by the court.

While the lawyer has the advantage of deciding the order in which they present and examine their witnesses, the court retains the power to dictate the order if necessary. It is also customary for a witness to leave the courtroom when another witness is being examined, to ensure the integrity of their testimony.

The Judge's Role in Deciding the Admissibility of Witnesses

Section 136 of the Indian Evidence Act empowers judges to determine the admissibility of witnesses. This ensures that evidence remains within its proper limits and relevance. Judges have the authority to ask questions in a manner that ensures the evidence's relevance, and they must decide the admissibility of evidence when it is presented. However, judges must allow the parties the opportunity to address the court before making a decision on admissibility.

For example, if a person is accused of receiving stolen property and denies possessing it, the court may require the property to be identified before accepting the denial of possession as evidence. The judge must strike a balance between admitting relevant evidence and ensuring that the evidence does not exceed its proper scope.

Examination in Chief

Examination in chief refers to the questioning of a witness by the party who called them. This examination is conducted to establish the witness's credibility and to bring forward facts favorable to the party calling the witness. When a witness appears before the court, they are typically asked to take an oath or make an affirmation. The examination in chief begins with the witness's identification and background, followed by questions related to material facts and necessary evidence.

The purpose of the examination in chief is to discover the truth and prove facts that support the case of the party calling the witness. It is essential to note that if a particular fact is not addressed during the examination in chief, the opposing counsel cannot cross-examine the witness on that specific fact. The order of examination in chief is typically determined by whether the party is the prosecution or the defendant. Examination in chief is a vital component of the judicial process.


Cross-examination, as explained in Section 139 of the Indian Evidence Act, allows the opposing counsel to question a witness who has been called to produce documents relevant to the case. However, a person summoned solely to produce documents is not considered a witness unless they are also related to the case. If a person is summoned to produce a document and possesses it, they must present it in court. If they do not possess the document, they should inform the court through an application. It is important to note that a person who produces documents cannot subsequently become a witness.

Cross-examination is not limited to the facts addressed during the examination in chief. It provides the opposing counsel with the opportunity to challenge the witness's character, credibility, and any deviation from the facts. If a statement made during the examination in chief is not cross-questioned during the cross-examination, it is considered accepted by the opposing party. However, the court is not bound to accept the evidence or facts presented if they find it unreliable or unacceptable. The court has the authority to cross-examine witnesses on behalf of the opposing counsel. If a witness is not given the opportunity for cross-examination, their evidence may be excluded by the court.

Leading Questions

Section 141 of the Indian Evidence Act deals with leading questions, which are questions that suggest the desired answer to the person being questioned. Leading questions should not be asked during the examination in chief or re-examination. For example, questions such as "Have you not lived with him for ten years?" or "Are you not in the service of Ram?" are leading questions as they suggest the answer instead of allowing the witness to provide an independent response. Leading questions are generally answered with a "yes" or "no."


The power of judges to question witnesses is a fundamental aspect of the Indian legal system. Section 165 of the Indian Evidence Act grants judges the authority to ask questions, discover the truth, and ensure a fair trial. The interplay between various sections of the law, such as Section 162 of the Code of Criminal Procedure and Section 311 of the Criminal Procedure Code, further clarifies the judge's powers and the limitations imposed.

Understanding the judge's role in questioning witnesses, the order of production and examination, and the admissibility of witnesses is crucial for legal professionals, law students, and anyone interested in the Indian legal system. By recognizing the significance of these provisions, we can appreciate the thoroughness and fairness of the judicial process.

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Note: The information provided in this article is for educational purposes only and should not be considered legal advice. Always consult with a qualified legal professional for specific legal guidance.

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