Bharatiya Sakshya Adhiniyam (BSA)

Submitted by – Amey Todankar

Roll No – 2425354

T.Y LL.B

Lala Lajpatrai College of Law, Mahalaxmi

Professor – Dipak Pawar

1|Page
 Contents

.
Page
Topic
No
Evolution of Evidence Law in India
Highlights of BSA 4
Credibility of Witness

Section 158 Impeaching the Credit of Witness under Bharatiya Sakshya Adhiniyam 4
What does it mean by Impeaching the Credit of a Witness ? 5
How to Impeach a Witness’s Credit ? under Section 158 BSA 5
Illustrations 6
Comparison: Section 158 of BSA and Section 155 of the Indian Evidence Act 6
Relevant Supreme Court and High Court Case laws 7

Judges Powers to Put Questions

Introduction 9
Who is a Witness? 10
Power of Judges to Ask Questions or to Order Production 10
Landmark Judgements 11
Explanation using Example – Example 1 12
Explanation using Example – Example 2 13

Improper Admission and Rejection of Evidence

Introduction 14
Types of Evidence 16
When is Evidence Admissible 17
Chapter XI – Section 169 No New Trial for Improper Admission or Rejection of Evidence. 18
Rejection of Evidence 22

References
Books Referred to 24
Websites Referred 26

2|Page
Evolution of Evidence Law in India
The word “evidence” is derived from the Latin word evidens or evidere, which means “to show
clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to
prove”. The Indian Evidence Act (IEA), originally passed by the Imperial Legislative Council in 1872,
during the British Raj, provides for laws relating to evidence and assist courts in establishing facts of
the case brought before it and pronouncing judgments based on such facts. It falls within the
category of ‘adjective law’ and it defines the pleading and methodology by which the substantive
and procedural law are operationalised. The Act governed all court processes in India, both civil and
criminal. As per BSA, “evidence” means and includes—

• all statements including statements given electronically which the Court permits or requires
to be made before it by witnesses in relation to matters of fact under inquiry and such
statements are called oral evidence;
 all documents including electronic or digital records produced for the inspection of the Court
and such documents are called documentary evidence.

The definitions of document and evidence have become wider to include electronic record and
digital records. Anything done in electronic or digital mode will be considered as document and will
be recognised as evidence. The definition of ‘Evidence’ empowers the courts to examine witnesses
during trial by way of video conference.

Bharatiya Sakshya Adhiniyam, 2023

The aim of BSA is to consolidate and to provide general rules and principles as evidence for fair trial.
The Act includes various forward- looking provisions, such as, expansion of the definition of evidence
to include electronic and digital records, expansion of definition of primary evidence, provision for
admissibility of electronic or digital records as evidence, exclusion of privileged communication
between the Ministers and the President of India from the purview of Courts, provision of certificate
for handling of electronic and digital evidence, etc. In BSA, there are total 170 sections whereas
there were a total of 167 sections in the Indian Evidence Act (IEA).

Rationale
The law of evidence is a fundamental part of our legal system which is primarily based on the
principle that an accused person is presumed to be innocent until proven guilty. It provides the rules
and guidelines for determining what evidence can be presented in court, how it should be
presented, and how it should be evaluated. Here are several reasons why evidence law is essential:

Relevant, authentic, and obtained legally, evidence law promotes the reliability and accuracy of the
information presented in court. This helps to ensure that judicial decisions are based on trustworthy
and verifiable facts.

• Ensures Fairness in Legal Proceedings: Evidence law ensures that both parties in a legal
dispute have a fair opportunity to present their case. By establishing clear rules for what can
be considered as evidence, it helps to prevent biased or irrelevant information from
influencing the outcome of a trial.

3|Page
 • Protects the Rights of Individuals: The law of evidence protects the rights of individuals by
setting standards for how evidence must be obtained and presented. For example, it
prohibits the use of evidence obtained through coercion or illegal means, ensuring that the
legal process respects the rights of all parties involved.
• Promotes Reliability and Accuracy: By requiring that evidence be relevant, authentic, and
obtained legally, evidence law promotes the reliability and accuracy of the information
resented in court. This helps to ensure that judicial decisions are based on trustworthy and
verifiable facts.
• Enhances Efficiency in the Judicial System: Clear rules of evidence streamline the judicial
process by setting out what is admissible and what is not. This helps to avoid unnecessary
delaysand ensures that trials proceed in an orderly and efficient manner.
• Balances Competing Interests: In legal proceedings, there are often competing interests at
play. Evidence law helps to balance these interests by ensuring that the rights of the accused
are protected while also allowing the prosecution to present a compelling case. This balance
is crucial for maintaining justice and fairness.
• Adapts to Technological Advances: As technology evolves, so does the nature of evidence.
Evidence law should be designed to adapt to these changes by incorporating rules for new
types of evidence, such as electronic records and digital communications. This adaptability
ensures that the legal system can effectively handle modern forms of evidence.

Highlights of BSA
• It provides that evidence includes any information given electronically which would permit
appearance of witness, accused, experts and victims through electronic means.
• It provides the admissibility of an electronic or digital record having the same legal effect,
validity and enforceability as any other document.
• It seeks to expand the scope of secondary evidence.
• It seeks to put limits on the facts which are admissible and its certification as such in the
Courts.
• It includes electronic and digital signature.
• In BSA the references to colonial terms, such as, ‘Parliament of the United Kingdom’,
‘Provincial Act’, ‘London Gazette’, ‘Commonwealth’, ‘Privy Council’, ‘Queen’s Printer’, ‘Her
Majesty’, colonial proclamations and orders have been removed. Archaic terms like ‘vakil’,
‘pleader’, ‘barrister’ have been replaced with ‘advocate’. Terms like ‘lunatic’ have also been
replaced with more sensitive terminologies, like ‘person of unsound mind’.

Credibility of Witness
Section 158 Impeaching the Credit of Witness under Bharatiya Sakshya
Adhiniyam
In any legal proceeding, the credibility of a witness can significantly impact the outcome. The
testimony of a reliable witness may sway the court’s decision, while a questionable witness can cast
doubts on the evidence presented. Section 158 of the Bharatiya Sakshya Adhiniyam (BSA) focuses
on concept of “Impeaching the Credit of a Witness .” This legal provision empowers parties to
challenge the credibility of witnesses through clearly defined methods,

4|Page
What does it mean by Impeaching the Credit of a Witness ?

Impeaching the credit of a witness means challenging or questioning the reliability and honesty of a
witness’s testimony during a trial. Under Section 158 of the Bharatiya Sakshya Adhiniyam (BSA), the
opposing party (or, with the court’s permission, the party who called the witness) can challenge a
witness’s credibility in specific ways. Let’s break it down in simple terms:

Section 158 Impeaching the Credit of a Witness .

The credit of a witness may be impeached in the following ways by the adverse party, or, with the
consent of the Court, by the party who calls him—

(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe
him to be unworthy of credit;

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received
any other corrupt inducement to give his evidence;

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be
contradicted.

How to Impeach a Witness’s Credit ? under Section 158 BSA

1. By Testimony of Others About the Witness’s Character (Section 158(a))

 People who personally know the witness can be called to testify that they believe the
witness is not trustworthy. This can challenge the overall reliability of the witness’s
evidence.
 Example: Suppose in a theft case, a witness says they saw the accused stealing. The
opposing party can call someone who knows the witness to testify that the witness has a
history of lying or dishonesty, suggesting that their testimony might not be credible.

2. By Proving Bribery or Corruption (Section 158(b))

 If it can be shown that the witness has been bribed or received any kind of corrupt incentive
to testify in a particular way, their credibility can be questioned.
 Example : In a property dispute, if a witness testifies in favor of one party, and the opposing
party shows proof that the witness accepted money from that party to give false testimony,
the witness’s evidence loses credibility.

3. By Showing Inconsistent Statements (Section 158(c))

 If the witness previously made statements that contradict what they are saying in court now,
those earlier statements can be used to challenge their current testimony.
 Example : If a witness in a car accident case states in court that the accident happened at
night, but earlier told the police it happened in the morning, this inconsistency can be
highlighted to show that the witness might be unreliable.

5|Page
Explanation.—A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-
examination, and the answers which he gives cannot be contradicted, though, if they are false, he
may afterwards be charged with giving false evidence.

Understand the Explanation :

When someone testifies that another witness is unreliable, they cannot provide reasons for this
belief during the main examination (examination-in-chief). However, during cross-examination, they
can be asked why they think so. The answers given during cross-examination cannot be disputed or
challenged, but if those answers are false, the witness could face charges for providing false
evidence.

Illustrations:

(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to
B. The evidence is admissible.

(b) A is accused of the murder of B. C says that B, when dying, declared that A had given B the
wound of which he died. Evidence is offered to show that, on a previous occasion, C said that B,
when dying, did not declare that A had given B the wound of which he died. The evidence is
admissible

Comparison: Section 158 of BSA and Section 155 of the Indian Evidence Act

Section 158 of the Bharatiya Sakshya Adhiniyam (BSA) is quite similar to Section 155 of the Indian
Evidence Act, 1872, which also deals with impeaching the credit of a witness. Here’s a breakdown
of the comparison:

1. Scope of Impeachment:

 Under Section 158 BSA, a party can challenge a witness’s credibility by questioning their
trustworthiness, bribery, or inconsistencies.
 Section 155 of the Indian Evidence Act allows similar challenges. It specifically includes
questioning the truthfulness of the witness, showing prior bribery, proving earlier
contradictory statements, or pointing out past false evidence.

2. Testimony of Character :

 Both sections permit others to testify that a witness is not credible due to personal
knowledge of their character.

3. Use of Past Statements :

 Both sections allow the use of previous statements that conflict with the current testimony
to challenge a witness’s reliability.

6|Page
Important Considerations:

 Section 159: This section permits questioning a witness about circumstances they observed
at or near the time and place of the relevant fact to corroborate their testimony. For
example, if an accomplice describes details unrelated to the crime but observed during the
event, independent evidence of those details can strengthen their overall credibility.
 Section 160: This section allows the introduction of previous statements made by the
witness to corroborate their later testimony regarding the same fact. These statements can
have been made at or about the time of the event or before an authority investigating the
matter.
 Explanation to Section 158: A witness who testifies that another witness is unworthy of
credit cannot provide reasons for their belief during their examination-in-chief. However,
they can be questioned about their reasons during cross-examination, and their responses
are not subject to contradiction. However, if their responses are false, they could face
charges of giving false evidence.

Relevant Supreme Court and High Court Case laws

1. Rajendra Singh v. State of Uttar Pradesh, (2023)

In this case, the Supreme Court emphasized the importance of cross-examination as a tool for
impeaching the credit of a witness. The Court held that contradictions between the witness’s
statements made during the investigation and in the courtroom could severely impact the witness’s
credibility. The judgment underlined that prior inconsistent statements could be crucial for assessing
a witness’s reliability.

Thus The ruling highlighted that previous contradictory statements by a witness should be
thoroughly scrutinized to determine their truthfulness.

2. Krishna Kumar Malik v. State of Haryana, (2011) 7 SCC 130

This case revolved around the admissibility of prior statements and their effect on a witness’s
credibility. The Court emphasized that inconsistent statements made before different authorities
could be used to challenge the reliability of the witness’s testimony. It reiterated that the process of
impeaching credibility must be carefully weighed against the context of the case.

It is established that, A witness’s previous statements made before different forums can be a basis
for impeaching credibility, particularly if they contradict courtroom testimony.

3. Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389

In this landmark judgment, the Supreme Court clarified the use of testimony by persons who claim
that the witness is not trustworthy, in accordance with Section 155 of the Indian Evidence Act. The
Court highlighted that the evidence should not merely attack the witness’s general character but
should specifically relate to the credibility of the statements made in the case at hand.

Testimony about a witness’s untrustworthiness must be specific and relevant to the matter before
the court.

7|Page
4. Vijayan v. State of Kerala, (2010) 2 SCC 398

This judgment dealt with the challenge of witness credibility through the evidence of character. The
Court clarified that evidence from individuals familiar with the witness’s character must be closely
scrutinized for reliability. It reiterated that such testimony should aim at the specific credibility of the
witness concerning the matter under examination, not merely their general reputation.

Evidence from persons familiar with the witness’s character should specifically address credibility in
the context of the case rather than general behavior.

5. Dharam Pal v. State of Haryana, (2016) 4 SCC 496

In this case, the Supreme Court focused on bribery or corrupt inducements as a means to impeach a
witness’s credit. It emphasized that any credible evidence of bribery or inducement to influence
testimony could severely damage the witness’s reliability. The ruling highlighted the legal standards
required to prove bribery or corruption.

Proving bribery or corruption in relation to testimony requires substantial evidence, but once
established, it is a strong ground for discrediting a witness.

7. State of Maharashtra v. P.B. Deshmukh, (1979) 3 SCC 483

The Supreme Court discussed the use of cross-examination to expose contradictions in a witness’s
statements. It ruled that effective cross-examination is a vital component in impeaching a witness’s
credibility, particularly when prior inconsistent statements come to light.

Cross-examination plays a critical role in testing the reliability of a witness’s testimony by bringing
out inconsistencies.

8. Ram Singh v. Col. Ram Singh, (1985) Supp SCC 611

 This judgment focused on the legal standard for using a witness’s past inconsistent
statements as grounds for impeachment. The Court clarified the admissibility of such
statements and the criteria for evaluating their relevance and impact on credibility.
 Not all inconsistent statements are relevant; only those that have a significant bearing on
the material facts of the case are admissible for impeaching credibility.

8|Page
Judges Powers to Put Questions.

Introduction

 Section 168 of Bhartiya Sakshya Adhiniyam, 2023 (BSA). states the provisions regarding
Judge's power to put questions or order production.
 This section is covered under Chapter X of BSA which is based on Examination of Witnesses.
 The main objective of the judicial system is to ensure justice regardless of any procedural
limitations.
 This section states the duty of the court to ensure the discovery of truth and for that he has
the authority to out forward certain relevant or irrelevant questions.
 This Section was earlier covered under Section 165 of the Indian Evidence Act, 1872 (IEA).

 The Judge may, in order to discover or obtain proof of relevant facts, ask any
question he considers necessary, in any form, at any time, of any witness, or of the
parties about any fact; and may order the production of any document or thing; and
neither the parties nor their representatives 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:
 Provided that the judgment must be based upon facts declared by this Adhiniyam to
be relevant, and duly proved:
 Provided further that this section shall not authorise any Judge to compel any
witness to answer any question, or to produce any document which such witness
would be entitled to refuse to answer or produce under sections 127 to 136, both
inclusive, if the question were asked or the document were called for by the adverse
party; nor shall the Judge ask any question which it would be improper for any other
person to ask under section 151 or 152; nor shall he dispense with primary evidence
of any document, except in the cases hereinbefore excepted.
 The Judge can ask any question to find out or prove important facts. This can be
done at any time, in any way, to any witness or party involved in the case. The Judge
can also ask for any document or item to be shown. The parties involved or their
lawyers cannot object to these questions or requests. They also cannot question the
witness further about their answers without the Court's permission.
 However, the final decision must be based on facts that are considered relevant and
properly proven according to this law.

9|Page
Who is a Witness?

About:

 A witness is a person who has personally seen an event happen. The event could be a crime
or an accident or anything. Sections 124-139 of BSA talks about who can testify as a witness,
how one can testify, what statements will be considered as testimony, and so on.
 As per Section 124 of BSA a competent witness is one who has the capacity and ability to
understand the questions put to him by the court. If he has the understanding of questions
and the ability to give rational answers, then he is a competent witness.
 Any person can be a witness. There’s no restriction as to who a witness can be.
 A person, either male or female, a child or aged, can be a witness. The only restriction is that
if a person does not understand the questions and is not able to answer rationally, then he is
not a competent witness.

Power of Judges to Ask Questions or to Order Production

 Section 168 of the BSA states that:

o The duty of the judge is to ensure justice by putting questions to the witnesses as it
deems fit.
o There is no such time limit given to the judges to ask questions and similarly no limit
on the number of questions he can ask.
o The parties do not have the right to object to any question asked by the judge.
o The judges may grant permission to cross examine any witness.
o There is no such restriction on judges based on the kind, form, time, relevant or
irrelevant of the question asked.
o The judge under this section has power to obtain the evidence and find facts which
are relevant to the case therefore, this section is also known as indicative evidence.
o The object behind such questions is to make the evidence provided by the parties
more intelligible.
o These questions make the evidence more reliable and trustworthy.
o The court under this section may ask questions to both the parties whether
appearing and non-appearing as witnesses.
o It is specifically given under the section that the judgment must be based on the
facts declared relevant and which are duly proved.
o It is further specifically given that the judge cannot compel any witness to answer
any question and for such question for which the witness is entitled to refuse
(Section 127 to Section 136 of the BSA).
 The judge shall not ask any improper question under Section 151 or Section
152 of BSA.
 The judge shall not dispense with primary evidence of any document
produced except for the cases where it is accepted.
o It is to be noted that the statements made under this Section cannot be restricted
based on Section 181 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which
states the provisions based on Statements to police and use.
o The statements obtained by the court are necessary to ensure justice and therefore
cannot be barred.

10 | P a g e
Landmark Judgements

 Nepal Chandra Roy v. Netai Chandra Das & State of Rajasthan (1971):
o The Supreme Court in this case held that the power given to the courts by Section
165 of IEA is to extract the best evidence; courts shall not be overzealous in asking
questions. It shall be patient to let the parties put their questions to the witness and
after the cross-examination if something remains to be answered then the court can
ask questions.
 Raghunandan v. State of U.P (1974):
o In this case it was held that the court that 162 of Code of Criminal Procedure, 1973
(CrPC) is a general provision and on the other hand sec 165 of IEA is a special
provision. The restriction of section 162 will not apply upon 165 of IEA. Therefore,
the court is free to ask questions to witnesses based on their statement made to the
police during investigation.
 Mohanlal Shamji Soni v. UOI (1991):
o In this case it was held that Section 165 of IEA and Sec 311 of CrPC are
complementary to each other and between them, they confer jurisdiction on the
Judge to act in aid of justice.

11 | P a g e
Explanation using Example

Example 1:

Scenario: A Theft Case

Context: During a trial for theft, the prosecution presents a witness who claims to have seen
the accused near the scene of the crime.

Application of Section 168:

 Judge's Action: The judge, seeking to clarify the timeline, asks the witness, "At what
exact time did you see the accused near the shop?"
 Witness's Response: The witness responds, "I saw him around 8 PM."
 Judge's Order: The judge then orders the production of CCTV footage from the shop
to verify the witness's statement.
 Parties' Reaction: Neither the defense nor the prosecution can object to the judge's
question or the order for the CCTV footage.
 Legal Boundaries: The judge ensures that the questions asked and the evidence
sought are relevant and permissible under the law, without compelling the witness
to provide information they are legally entitled to withhold.

12 | P a g e
Example 2:

Scenario: A Contract Dispute

Context: In a civil case involving a breach of contract, the plaintiff claims that the defendant
failed to deliver goods as per the agreement.

Application of Section 168:

 Judge's Action: The judge asks the plaintiff, "Can you provide the original contract
document that outlines the terms of delivery?"
 Plaintiff's Response: The plaintiff submits the original contract document to the
court.
 Judge's Order: The judge orders the defendant to produce any correspondence or
emails related to the delivery schedule.
 Parties' Reaction: Neither party can object to the judge's questions or the order to
produce documents.
 Legal Boundaries: The judge ensures that the questions and orders are within the
legal framework, respecting the parties' rights to withhold certain privileged
information as per sections 127 to 136 of the Adhiniyam.

13 | P a g e
Introduction

The presuppositions concerning the law, the courts, the proceedings and operations of
courts are many and mostly untrue. Stating that most of these assumptions and opinions
are branded by filmic representations will not amount to exaggeration. Notably, the
actuality stands radically dissimilar to the entertainment sponsored representations. It isn’t
uncommon for the visual entertainment media to present a judge putting questions to the
victim or the witness. However, in the adversarial criminal justice system present in India,
judge presiding as a neutral spectator is equally, if not more, prevalent. For a layman, a
judge taking lead in seeking evidence and the truth through evidence may seem like a
conventional, undebatable practice with nothing striking to it. However, the legal realm
takes distinct positions on this concept, its practice, its necessity and relevance. Nothing in
the sphere of evidence law stands simple or uncontested and correctly so. Evidentiary value,
interpretation and the procedure to reach the evidence play a colossal role in the legal
system and thus, call for debate at every step.

The Adversarial System of India:

The presumption of innocence forms one of the fundamental cornerstones of the

adversarial system. The adversarial system essentially advocates a non-interventionist role
by the judge who is supposed to oversee the prosecution prove their case beyond
reasonable doubt against the accused. The scope of the dispute, the evidence to be brought
on record, amongst other things, are largely decided by the parties. 1

As opposed to the adversarial system, an inquisitorial system bestows the judge with the
duty to collect all the material which is relevant to the case, and then forward it to the trial
[Link] essentially implies that inquisitorial systems require judges to take an active part
in the trial proceedings so that they can discover the truth and dispense justice. This is
usually brought into effect by the methodology which includes but is not limited to the
judge of instructions recording the statements of witnesses during investigation which are in
turn admissible in court, ensuring the participation of the victim and the accused in the
hearing before the trial judge etc.

A pertinent point to note here is that, since the judge is the person who is asking questions
here, there is no scope for cross examination of the witness. The parties may only suggest
the question which can be asked by the judge. The prior history of the accused, evidence
related to the character of the accused etc are also the factors which are taken into
consideration for the determination of the culpability of the accused. 2

14 | P a g e
The Malimath committee 3felt that the pendency of the cases coupled with the delay in the
administration and disposal of such cases were the necessary implications of the flawed
procedure of administration of criminal justice in India, which is time taking and inundated
with unnecessary procedure. It also identified the low conviction rates as on more
implication of the same. The committee essentially felt that since the judge has a neutral
role to play, and merely oversees whether the case has been proved beyond reasonable
doubt by the prosecution or not, the system inadvertently becomes inclined to favour the
accused. 4

This view has also been taken by the Supreme Court on multiple occasions. In the case of
Mohanlal vs. Union of India, the court had said that, the fundamental rule of the law of
evidence is that the best available evidence should be brought before the court. However,
the responsibility of bringing forth such evidence is either on the defence or the prosecution
who are in the quest to establish their own case by using the evidence so produced.
Moreover, according to the provisions of the Code, the court cannot ask the prosecution or
defence to examine the witnesses of their side for the sake of discovering the truth.
Nevertheless, in the event that evidence is withheld by either of the parties, which in turn
when produced, could be unfavourable to the party which has withheld such evidence, the
court is empowered under §114 5 of the Act to draw a presumption against such a party.
The essential question which flows from this is whether the Judge is bestowed with the
responsibility of being a referee, who’s role is to merely objectively assess the arguments of
both sides, and then declare the result, or is he required to take an active part in the
proceedings so that the truth is discovered and justice is served? The role of a court is not to
merely do justice but also to ensure that justice is being served. However, the present
criminal justice system diverts from this principle inasmuch as, it often so happens that “The
Judge, in his anxiety to demonstrate his neutrality opts to remain passive and truth often
becomes a casualty.” 6

Furthermore, the confrontational legal system has been condemned for being less cost-
effective along with the lawyers’ propensity to bring up evidence advantageous to their side.
7 Ergo, scholars have claimed that adversarial system is less informative and thus, less true.
8 The reason behind this lack of information in adversarial system has been based on the
vast nurturing of facts and evidence by a party who plans to mislead. 9

15 | P a g e
Demystifying Judge’s power to ask questions:
The Principle:

Section 165 of the Indian Evidence Act entitles the judiciary with one of the most wide-
ranging influence to seek the truth. 10 The power enshrined in this section authorises the
judge to delve into the depths of the situation. Following this in-depth analysis, a judge can
reach helpful indicative evidence that, more often than not, guides the matter to directly
applicable and acceptable evidence. 11 But, notably, the judiciary can rely only on relevant
records and evidences, as power of the judiciary to put questions and seek the truth can
lead the court to depend on second-hand re-counts. These second-hand reports can’t be
trusted and would consume the court’s time and put forth multitudes of frauds. 12

In a pretty recent case, Iqbalahamed vs. Vice-Chairman Patel, 13 the court highlighting the
understanding of lacuna in the prosecution case stated that while considering production of
significant evidence or prompting related information from a witness, an outcome of an
omission done by the prosecution should not be paralleled with a lacuna. The court, in this
case, rubbished the consequence of the delay or omission and clarified that any such effect
can’t be comprehended as a lacuna which can’t be covered by a court.

An analysis of this cases renders how a court can take in relevant records and evidences,
even when, and is generally seen, the party objects to [Link] is the fact that despite
the continuous efforts of lawyers to hinder and disregard the judiciary’s authority to put
questions on its own, the practice hasn’t subsided with time. Whilst the regularity of
practicing this power has never been unchanged, the court’s ability to ask questions
independently of the prosecution, has survived, academically and in procedure. 14

Chamberlayne, 15 in his work on Evidence, has pointed out multiple times that the motive
of a hearing should be to reach the truth and the crux of the matter, and then imply this
truth to confirm justice. Ergo, it is the duty of the judiciary to stimulate the correct factual
analysis, albeit neither the truth will be attained, nor justice will be rendered. 16 Stressing
the need for the court to render justice in all situations, the judiciary in Iqbalahamed v Vice
Chairman17 opined thatthe court is supposed to practice the enormous power enshrined in
itself under Section 165 of the Evidence Act, 18 for rendering justice at all cost. Relying on
Raj Kumar v. Ajay Kumar,19 in the aforementioned case, the court reiterated that not just
the judges but the all the presiding members of the bar owed the duty to the litigants to
seek justice.

16 | P a g e
Similarly, in Mohd. Iqbal v. State of Uttarakhand, 20 the the applicant’s counsel referred to
the ruling in State of Uttarakhand v. Tilak Set. 21 The counsel argued that the primary
objective of a case is to attain truth behind the situation. The court in the aforementioned
case had said thatany trial without the pursuit for justice does not make sense. The court
observed that that the judge’s powers like that of putting questions to the witness or the
victim serve the intention of advancing justice to the parties, irrespective of the fact
whether the parties or their lawyers have mistakenly or intentionally overlooked something.

Furthermore, Section 165 of the Evidence Act 22 when read with Section 311 of the Code of
Criminal Procedure, 23 confers the judiciary with enormous authority to undertake all
necessary measures which the court deems fit to reach the truth and render justice. 24 This
principle has hardly ever been challenged. In a recent case, Krishnegowda v. State of
Karnataka, 25 the court accentuated how the aforementioned sections should be used to
strive for justice. The court stated that in case of a criminal wrong, breakdown of justice
wouldn’t be against the victim but the society at large. The Supreme Court has assessed the
complementary relation betwixt Section 311 of the Criminal Procedure Code 26 and Section
165 of the Evidence Act 27 in Sister Mina v State of Orissa28 as well. An analysis of these
judgements highlights how the courts’ position on the principle has been the same.

On similar lines, in Suresh Chandra Jana v. State of W.B., 29 following the utilization of
Section 165 of the Evidence Act, it was held that the duty of a court is to discover the
actuality and accepting a small gap or delay in investigation as a factor for letting go of the
accused, shouldn’t be fine with the court. More so ever, when the truth is hindered.

Analysing the stated cases show how despite the presence of an adversarial system in the
country, there are pleasing hints of inquisitorial justice in the legal system.

17 | P a g e
Questioning by the Judge:

Diverse countries have sported sundry approaches towards the judge’s power and right to
ask questions. Primary case in point being countries in [Link] most of the European
countries, the judiciary is obliged to reach the truth on his own by pushing his or her
persuasions along with the ones forwarded by the prosecutor. France being one of the
leading countries to apply this practice, would make for a decent example. As per the
French system, the judge takes an active part in the questioning to an extent where the
judge, along with the prosecution, directs leading questions whilst assessing witness.
Whereas, England observes a dissimilar system: The interrogation is spearheaded by the
legal representatives of the parties. Interrogation or examination isn’t done by the judge.
Nevertheless, he may still add additional or accompanying queries. 30 Ergo, prominent
examples of both the legal justice systems can be found in Europe.

Moreover, Principles of Evidence state that a judge can put ahead any query in any structure
or state at any point of the litigation. Furthermore, a judge can reasonably permit the
parties to the litigation and their legal representatives to perform the same. But, this
mustn’t be confused with acceptance of unlawful evidence at the judiciary’s pleasure. 31

The debate whether a court can put forth an irrelevant question or not, has been brought
up time and again. However, the court’s stance on the debate hasn’t really changed with
time. Very recently, in Sanjay Kumar v. State of Bihar, 32 the court can go ahead with any
query whether relevant or irrelevant. Furthermore, the court discoursed that the litigants or
their representatives cannot advance any protest against any query put ahead by the judge.

Moreover, in another recent case, 33 the judiciary acclaimed the harmonizing and
corresponding relation betwixt Section 165 of the Evidence Act 34 and Section 311 of the
Criminal Procedure Code. 35 The court laid emphasis on how both the sections when read
together enshrine the court with the power to question the witness at any point during the
trial.

To render comprehensive justice to the parties, the Court ought to invoke provisions as
under Sec. 165 of Indian Evidence Act, 1872 which allows courts to call for evidence at any
stage. However, this vests a lot of power in judiciary and hence there needs to be a
balancing mechanism in place to prevent the tempering of the powers given to the courts.
36

However, this practice must be implemented with apt prudence. 37 As has been stated in
Dina Nath v. State of Bihar, 38 whilst the choice to the judiciary is quite extensive, the
extent of the law needs to be kept in a check.

We see that the power vested under Sec 165 of the act in question complements the
powersavailable under Sec. 311 of the procedural law (CrPC) 39. We find two aspects of it-

 a) court is bestowed withcertain level of discretion so as to examine and test the

witnesses at any stage
 b) while examiningthe witness, the court needs to ensure that the decision is just,
fair and the evidence is properlytaken into consideration. 40

18 | P a g e
The role of the courts is to be more than just as a safeguard of records or witnesses, but
therelevant provisions at hand (Sec. 311 and Sec. 165) gives the court large powers so as to
elicitevery pertinent and necessary material. It is possible for the court to know which
material isnecessary is essential only when they are involved in the entire process of
evidence collectionand in monitoring the proceedings. Furthermore, if the court believes
that there is somethingunusual about the prosecutor or they are not working in a manner
which befits the office andtheposition they are at, then there can be an effective control
over the proceedings by the court aswell. It would be the fault of judiciary if they ignore or
stay oblivious to any of the loopholes ordereliction of the duties of the officers in power. 41

We observe from the case of Iqbalahamed v. Chairman Patel Integrated Logistics Ltd., 42
that Supreme Court stated that they do not wish to be treated as umpires without any stake
in the process, nor as silent spectators but want to take a pro-active role in the entire
process. They talked about the powers that lie in Tribunals to exercise their power to
summon witness under Sec. 165 of the Indian Evidence Act and it should be exercised
regardless of all the unnecessary justifications which will not be taken into consideration.
We see that knowing the truth is not enough, if we don’t use that to render justice, so it is
justified if the presiding officer calls any witness to the court and it will not consider a bias or
prejudicial act against the claimant.

Interestingly, in Ccl Lk Lkp v. State, 43 the judgement stressed upon the need for an
inquisitorial system in Children’s court. While discussing the same, the court said that
Section 165 of the Evidence Act 44 must be invoked while assessing witnesses in children’s
court. The implication behind the same being the need to avoid adversarial proceedings in
children’s court. An analysis of the judgement and the rules relied upon in the judgement
justify the need of the same.

19 | P a g e
Extent of Judge’s Power:

As per the aforementioned analysis, it can be stated that Section 165 clarifies that the
judiciary isn’t just a referee at contest betwixt litigants represented through their attorneys.
For the sake of justice, a judge can’t just announce that winner and the loser. 45 She is
required to find and reach for the truth through the multiple powers envisaged in her
position: Examining witnesses or victims on grounds that the attorneys have missed or
skipped intentionally. Notably, the motto of the Indian Judiciary necessitates the presence
of ‘righteousness’ for ‘victory.’ 46 Ergo,in case the judge feels that assessment of the
witness or the victim isn’t strong or appropriate enough to carve the truth out of the
situation, he or she is bound to spearhead the questioning. The width of the judge’s power,
as stated in the section and the previous section have been reiterated in
ShantilalJayantibhaiBabariya vs. State of Gujarat.47

Whilst the judge is dutybound to seek the truth and serve justice, and Section 165 of the
Evidence Act when read with Section 311 of the Criminal Procedure Code pronounce
colossal authority upon the judiciary with respect to this power, he or she is expected to
prescribe to few tested principles. Precisely, these principles distinguish the conduct that
guides the judge’s practice of putting questions. Whilst neutrality of the judge need not be
reiterated, she or he shouldn’t let go of the judicial composure and resort to any sort of
aggression. Patel Maheshbhai v. State of Gujarat48 is recent case law where the court
repeated the significance of dignity that a judge needs to maintain whilst exercising his or
her power under Section 165 of the Evidence Act.

Additionally, neutrality of the judge while exercising his power to put questions was
emphasized in Suresh Chandra Jana v. State of W.B.49 The judgement stated that external
factors should not sway the judge’s opinion, albeit justice stands hindered.

20 | P a g e
Irrelevant Questions:

The debate whether or not can a judge put forth an irrelevant question has been brought up
innumerable times. However, the court’s stand on this question has been pretty much the
same over decades. Indian Courts comprising of the Supreme Court and various High Courts
have stated that a judge can put forth any query in any structure or state at any point of the
dispute resolution. However, a check must be kept on this power wherein the judiciary
utilises regular or irregular questions to seek evidence of relevant facts.

As stated earlier in the article and most recently by the judiciary in Sanjay Kumar v State of
Bihar, Section 165 empowers the judge to put forth any question he or she pleases. The
court, in the same case, states that no objection can be raised against the queries forwarded
by the judiciary.

Need for Convergence of Criminal Justice Doctrines:

The Malimath Committee delved into the need and the repercussions of on the
contemporary Criminal Justice System in India. The Committee, further, diverged into the
effects of opting any other system. After assessing the Inquisitorial System present in many
other countries, the committee determined that letting go of an inquisitorial system will be
problematic for a country like India: Primary considerations emphasized by the committee
being better fortification of just trial and impartiality towards the alleged in an adversarial
system. For occurrence, empirical research has shown that a completely inquisitorial system
is hit by prejudice and bias. 50

The Malimath Committee, nevertheless, acclaimed the presence of some Inquisitorial

features in the system. Moreover, the Malimath Committee stressed the need for opting
other virtuous and noteworthy features of the Inquisitorial Justice System in the current
system. For instance, judge’s obligation to seek truth and need for acceptance of a more
active and practical judiciary in the current system were highlighted.

Gradually, intellectuals and academicians across the world are making home with the fact
that one theory models have been overextended and relied upon way more stringently than
needed. While both the inquisitorial and adversarial system present a rosy picture of dealing
with wrongs and reaching to justice, the practicality begs to differ. Against countless
wrongdoings and innumerable wrongdoers, one style of resources will always find a hard
time to match up. The aforementioned observation has brought the criminal justice across
an integration of legal structures or legal arrangements: Closer to a system where utilizing
techniques from other systems and traditions, as and when necessary, is appreciated. 51

Analysis of all the recent cases show how convergence of legal structures is the optimum
manner to conduct trials as they provide much more flexibility to the system. Moreover, it
increases the reach of the law.

21 | P a g e
Conclusion:

The representation of the Indian legal system in the above section of the paper highlights
that it is an adversarial system, but not a very strict one at that. There exist hints of
inquisitorial systems in multitudes of places.

The presence of the exception in question, i.e., the power of a judge to put questions,
shouldn’t be just appreciated but also made known/accustomed to the entire judicial
system of the country. Furthermore, the criminal justice procedure should be made as
dynamic as [Link] dynamism provides the judiciary with the flexibility needed to
solve cases in a country which has over 3.3 crore pending cases.

Additionally, a study and an analysis of the recent cases sheds light on the fact that the
power of a judge to put questions has been debated, discussed and deliberated upon for
years. A breakdown of the analysis, further, highlights how the court’s stance has been the
same over the debates that have revolved around the power of the judge in question. The
courts have always upheld the power of a judge to put questions to the witness and the
victim. Moreover, the cases highlight how the recent developments do not differ much from
the stance which the courts have maintained over the years with respect to the principle,
the width and the extent of the judge’s power to put questions, or relevancy of the question
asked among other things.

Despite an absence of sufficient recent cases that elaborately explain the topic, the power
of a judge to put questions can be analysed, compared and contrasted through the available
case laws. One of the most significant factors that need to be checked is the manner with
which the judge exercises this power. It must be noted that a judge has to maintain his
demeanour and make sure that he doesn’t intimidate the witness or the victim. Else, the
very sanctity and the entire exception that this section decrees on the adversarial system
gets lost. Nevertheless, as stated in the paper, cruciality of the judge’s questions must not
be ignored. Moreover, external factors shouldn’t hamper a judge’s right to put forth
queries, irrespective of the relevance of questions. But then again, as highlighted above,
these questions can’t come out of thin air. There has to be some relation to the case and a
chance to attain indicative evidence, if not directly relevant evidence. Not keeping the
aforementioned checks on the law, will defeat the purpose of this section and slice the
exception useless by taking the very meaning and sense out of it.

Conclusively, re-entering the act of putting questions by the judge and active investigative
role along with the prosecution shouldn’t be looked down at. Moreover, the benefits of the
section coupled with the need to cover up for the incapacity of the investigation authorities
or the attorneys, must be made at ease with the entire legal system at large. Also, while the
author stands for the belief that ‘justice delayed is justice denied,’ and haste should be kept
in check but the judge must utilize his power efficiently to reach to the truth.

Whilst the judge’s power to put questions brings along justice absorbed in itself, the
consequences or effects of added power need to be deliberated upon in more specificity. As
stated in the article, amidst the benefits of this inquisitorial exception, bias entering the
judicial system of rendering justice, is a possibility.

22 | P a g e
The Judge may, in order to discover or obtain proof of relevant facts, ask any question he
considers necessary, in any form, at any time, of any witness,or of the parties about any
fact; and may order the production of any document or thing; and neither theproduction of
any document or thing; and neither the parties nor their representatives 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:

Provided that the judgment must be based upon facts declared by this Adhiniyam to be
relevant, and duly proved:
• Provided further that this section shall not authorise any Judge to compel any witness to
answer any question, or to produce any document which such witness would be entitled to
refuse to answer or produce under Sections 127 to 136, both inclusive, if the question were
asked or127 to 136, both inclusive, if the question were asked or the document were called
for by the adverse party; nor shall the Judge ask any question which it would be improper
for any other person to ask under Section 151 or 152; nor shall he dispense with primary
evidence of any document, except in the cases herein before excepted.

The provisions of law provide that production and examination of witnesses are to be
regulated by the law and practice in consonance with the civil and criminal procedure and
where these laws do not apply, it will be the discretion of the court to determine the
same.13 The party who in accordance with the law has the privilege of the right to begin
shall produce witnesses for the purpose of examination. The order of production of
evidence will be regulated by the criminal code in criminal cases and civil code in several
cases. In criminal law, the prosecution shall begin with its case whereas in civil cases, it is the
framing of the issues which will decide who has the right to begin. It is then the discretion of
that person/party to decide which witnesses are to be produced in his favor and the court
examines accordingly and arrive at a decision.
The judge shall then decide the admissibility of evidence.14 The order of examination of
witnesses is the party who calls a witness or the plaintiff or the aggrieved party filing the
case shall examine his witness and is known as examination-in-chief. The procedural law
requires it unless in a case the onus is on the defendant to start proving his claims. The
examination of a witness is then examined by the adverse party in dispute and is referred to
as cross-examination. The witness subsequently is examined again by the party who called
him as his witness and is referred to as re-examination.15 The procedural law requires
uestions to be put to the witnesses in the manner as prescribed by the law. They may be
asked or they may not be asked or how leading questions are to be made to witnesses are
all determined by the law. Questions may be asked to the witness to test the veracity of the
witness or to test his statements whether it is truthful or not, and in certain cases witnesses

23 | P a g e
may be compelled to answer the questions put across and in others they have the privilege
to deny to answer the questions. The law also provides that questions which are not
relevant to a case or are unreasonable may not be asked while examining a witness.
Questions which are indecent or scandalous or intended to insult or to annoy may be
forbidden by the court, which has the discretion to do so. After a witness has been
examined, questions which are corroborating with other relevant facts presented in a case
may also be made admissible. Former testimony of a witness may also be used to
corroborate with the later testimony with respect to the same facts in a case. In certain
cases memory may be refreshed of the witness either by reference to a writing or a
statement or any other evidence which may be present. It is finally the judge who after
taking into account all evidence present before him shall decide the admissibility of
evidence in all forms. The credibility of a witness may be impeached in case in any way it
may be shown to the discredit of a person as witness that the reliability is not good enough
in a case.

Process of examination of witnesses

The procedural law calls for a precise legal and systematic procedure for examination of
witnesses. The order of evidence is ruled by criminal and the civil law procedures in criminal
and civil cases respectively.17It is the judge who shall decide as to the admissibility of
evidence as it is put forth by the parties.18 The order of calling the witnesses for testimony
is that there shall be an examination-in-chief,cross examination and a re-examination of the
witnesses when the witnesses are called in by parties for examination.19 Leading questions
that is which suggest an answer to the questions asked may be put to witnesses during
cross-examination and the court permits this to be done.20 The court decides in most cases
when the witnesses may be compelled to answer questions (Sec 148)21 and questions hich
are scandalous, indecent or intended to insult or annoy may be forbidden by the court (Sec
151-152).22 The credit of a witness may be impeached by the adverse party by showing that
the witness is unworthy of credit, or showing that witness has been bribed or by proof of
former statements contradicted with the current statement (Sec 155)23. A witness may
refresh his or her memory by referring to anything which he feels will help him or her recall
the facts (Sec 159).24 The powers of the judge to put questions or to order production of
documents helps him to arrive at a judgment based on the facts which are duly proved (Sec
165).25 The process of examination of witnesses provides for character witnesses, calling or
persons only to produce documents and not be witnesses, whereby they may be questioned
on the facts which they have Winter Issue 2017 ILI Law Review Vol. II deposed to. The
questions asked may be leading questions or otherwise. Their testimony is subject to the
scrutiny of the court where their testimony may be corroborated or rejected, where they
ay be considered good witnesses or their credibility may be impeached by the said process.
The final decision lies with the judge to decide what testimonial statement as evidence is
admissible and what need not be considered to help find the truth in the matter submitted.

24 | P a g e
Examination of hostile witnesses (S.154)
The law states that, 'The court may, in its discretion, permit the person who also witness to
put any questions to him which might be put in cross-examination by the adverse party'.27
In English law, an advocate who had called a witness who turned out to be hostile was
permitted to employ at least some of the techniques of cross-examination28. Section 154
confers a discretion not limited by the criteria relevant to determining hostility, though in
practice similar ideas appear to have been applied, at least in standard cases29. "A majority
of American jurisdictions now permit a party to impeach the witness so called, on the
ground that a party is not responsible to the court for the testimony merely because the
party has called the witness in the hope of supporting his case.30 These jurisdictions provide
accordingly that a witness may be impeached by any party, including the party calling him:
see, e.g., Federal rules of evidence 607."31 It is usually believed that when a party offers to
prove evidence by way of witnesses, they might end up calling those persons who actually
might be persons having adverse reference for them. These witnesses under the law are
said to be 'hostile' witness which the court is required to declare. A party cannot on his own
declare a witness hostile, for any reason including that he has answered some questions
hich might not have gone in his favor in a trial. It does not discredit the witness to be hostile,
or reflect upon him an impression of dishonesty, having malice or any adverse feeling. He
may otherwise also not recollect the details for which he is called to testify. However where
a witness genuinely is malicious and answers adversely to all things questioned, or where it
appears that he is maliciously trying to sabotage the case of the party calling him as a
witness, he should then be declared a hostile witness by the court. The situational answer
in such adverse conditions of a hostile witness is, the repairing the damage caused to the
ase by such a witness. In other words, the mode of impeaching one's own witness comes by
way of cross examining and asking those questions which might be put to him by the
opposing party.32 "The answer J D Hayden, The Origins of the Indian Evidence Act, 10
Oxford U. Commw. L.J. 1 2010; Taylor (n 178) Vol 2 [1282]-[1284], [1370]; Criminal
Procedure Act 1865 (Imp) s 3 (28& 29) Vic c 18; Taylor (n 178) Vol 2 [1282]- [1284], [1370];
Criminal Procedure Act 1865 (Imp) s 3 (28& 29) Vic c 18. 29 Supra note 10, MC Sarkar et. Al.
(eds), Sarkar's Law of Evidence (16th edn Wadhwar and Company, Nagpur 2007) vol 2,
2416(Sarkar (n. 69) vol.2, 2416 33) cited in J D Hayden, The Origins of the Indian Evidence
Act.
30 Supra note 28. 31 G. Richard and M. Peter, Murphy on Evidence, 612-614( Oxford
University Press, pg. 612-614, 3rd edn., 2013). 32 Section 154, Indian Evidence Act, 1872.
Winter Issue 2017 ILI Law Review Vol. II involves consideration of two possible remedies,
which are: (a) the acceptance of the evidence, combined with calling other evidence in favor
of the parties case; and (b) direct discrediting of the witness by reference to previous
statements made by him inconsistent with his evidence."33 In a trial, in an adversarial
system it is often that parties produce the witnesses who would depose evidence in their
favor and hence bring the outcome as a favorable one to establish their rights or deny their
responsibilities. A witness who, at the time of the trial does not speak in favor of the person
or the party in whose favor he has to depose does not do the same is usually regarded as a

25 | P a g e
hostile witness. "Any party to litigation is entitled to call all admissible evidence at his
disposal which may assist him in proving his case. This principle is not affected by the fact
that part of that evidence turns out to be unfavorable or insufficiently favourable.
onsequently, the mere fact that a witness proves unfavorable does not prevent the calling
of any other available evidence dealing with the matters which the witness was supposed to
prove."

26 | P a g e