Section 168 BSA: Judge’s power to put questions or order production

Bharatiya Sakshya Adhiniyam, 2023

Section 168 BSA at a Glance

Section 168 BSA deals with judge’s power to put questions or order production. It replaced Section 165 IEA on 1 July 2024.

Was IEA

Section 165 →

Section 168 BSA Bare Act Text

168. Judge’s power to put questions or order production

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.

Source: Section 168, Bharatiya Sakshya Adhiniyam, 2023

Section 168 BSA in Simple Words

Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 lets a Judge question witnesses or parties and call for evidence. To discover or get proof of facts that are relevant, the Judge may ask any question the Judge considers necessary. Questions may be put at any stage and in any form, about any fact, to any witness or party. The Judge may also direct anyone to bring any document or object.

Parties and their representatives cannot object to such a question or order. They also cannot cross-examine a witness on the reply unless the Court grants leave (permission).

However, the provisos to Section 168 BSA set limits. The final judgment has to rest on facts declared relevant by the Adhiniyam and duly proved.

The Judge cannot compel a witness to give an answer or a document that the witness could refuse under Sections 127 to 136 BSA if the adverse party (opposite side) asked for it. This covers questioning a Judge or Magistrate on Court conduct under Section 127 BSA. It also covers forcing production of documents or electronic records that another person would have the right to withhold without consent under Section 136 BSA. Further, the Judge cannot ask improper questions conveying an unfounded imputation (accusation) under Section 151 or 152 BSA. Finally, the Judge cannot dispense with (do without) primary evidence of a document outside exceptions in the Adhiniyam.

When Section 168 BSA Applies

  • A Judge is hearing a proceeding and seeks to discover or obtain proof of relevant facts.
  • The Judge puts a question in any form and at any stage to a witness or a party about any fact that the Judge considers necessary.
  • The Judge directs that a document or physical object be brought before the Court.
  • A party or a representative cannot object to the question or order of the Judge, and needs permission from the Court to cross-examine a witness on the answer.

Example of Section 168 BSA

In September 2024, during a trial in Chennai over a warehouse lease, the Judge seeks proof of relevant facts and asks the witness Kavita a question the Judge considers necessary while ordering the party Arjun to produce a draft of the warehouse lease. The representative for Arjun tries to object to the question and the order for the draft warehouse lease. The representative also seeks to cross-examine Kavita right away on the answer about the warehouse lease. Under Section 168 BSA, the representative cannot object to the question or the order to produce the draft warehouse lease, and cannot cross-examine Kavita unless the Court grants leave.

When Section 168 BSA Does Not Apply

  • The final judgment can only be based on facts that the Adhiniyam declares relevant and that are duly proved.
  • The Judge cannot compel a witness to give an answer or a document that the witness could refuse under Sections 127 to 136 BSA if the adverse party asked for it, including questioning a Judge or Magistrate on Court conduct without a superior Court order under Section 127 BSA, or forcing production of documents or electronic records without the consent of another person who could refuse production under Section 136 BSA.
  • The Judge cannot ask a question that would be improper for another person to ask under Section 151 or 152 BSA, such as a question conveying an imputation without reasonable grounds, and cannot dispense with primary evidence of a document except where the Adhiniyam permits.

Section 168 BSA in the IEA (Previous Law)

Section 168 BSA replaces Section 165 IEA from the old criminal code.

Section 165 of the Indian Evidence Act, 1872 became Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. The Judge may ask any question "he considers necessary", where the IEA said "he pleases", and the words "relevant or irrelevant" were dropped. "Agents" reads "representatives".

FAQs on Section 168 BSA

What is Section 168 BSA?▼

Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 empowers a Judge to ask any question the Judge considers necessary of any witness or party and to direct anyone to bring any document or object so as to discover or get proof of facts that are relevant. Parties and their representatives cannot object to such questions or orders, and cannot cross-examine a witness on the answer unless the Court grants leave.

Can a party or representative object to a question asked by the Judge under Section 168 BSA?▼

No. Under Section 168 BSA, neither the parties nor their representatives are entitled to object to any question asked or production ordered by the Judge. They also cannot cross-examine a witness on the reply unless the Court grants leave.

Can a Judge base a judgment on facts that are not relevant or not proved under Section 168 BSA?▼

No. Even though Section 168 BSA allows the Judge to ask about any fact to discover or obtain proof of relevant facts, the opening proviso sets a clear requirement. The judgment must rest only on facts that the Adhiniyam declares relevant and that are duly proved.

Can a Judge compel a witness to answer protected questions or ask questions without reasonable grounds under Section 168 BSA?▼

No. A Judge cannot compel answers or documents protected under Sections 127 to 136 BSA, such as questioning a Judge or Magistrate on Court conduct without a superior Court order under Section 127 BSA or forcing production of records another person could refuse to produce without consent under Section 136 BSA. The Judge also cannot ask improper questions lacking reasonable grounds for an imputation under Section 151 or 152 BSA, or dispense with primary evidence outside exceptions in the Adhiniyam.

What is Section 168 BSA in IEA?▼

Section 168 BSA corresponds to Section 165 IEA, which applied before 1 July 2024. Section 168 BSA replaces the phrase any question the Judge pleases with any question the Judge considers necessary, drops the words relevant or irrelevant after any fact, and changes agents to representatives.

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Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·