Section 165 IEA: Judge’s power to put questions or order production

Indian Evidence Act, 1872

Section 165 IEA at a Glance

Section 165 IEA deals with judge’s power to put questions or order production. From 1 July 2024 it is replaced by Section 168 BSA.

Now BSA

Section 168 →

Section 165 IEA Bare Act Text

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

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorize 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 121 to 131, 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 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

Source: Section 165, Indian Evidence Act, 1872

Section 165 IEA in Simple Words

Section 165 of the Indian Evidence Act, 1872 lets a Judge question witnesses or parties and call for evidence. To discover or get proper proof of facts that are relevant, the Judge may ask any question the Judge pleases. Questions may be put at any stage and in any form, about any relevant or irrelevant fact, to any witness or party. The Judge may also direct anyone to bring any document or object.

Parties and their agents 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 165 IEA set limits. The final judgment has to rest on facts declared relevant by the Act and duly proved.

The Judge cannot compel a witness to give an answer or a document that the witness could refuse under Sections 121 to 131 IEA if the adverse party (opposite side) asked for it. This covers questioning a Judge or Magistrate on Court conduct under Section 121 IEA. It also covers forcing production of documents or electronic records that another person would have the right to withhold without consent under Section 131 IEA. Further, the Judge cannot ask improper questions conveying an unfounded imputation (accusation) under Section 148 or 149 IEA. Finally, the Judge cannot dispense with (do without) primary evidence of a document outside exceptions in the Act.

When Section 165 IEA Applies

  • A Judge is hearing a proceeding and seeks to discover or obtain proper proof of relevant facts.
  • The Judge puts a question in any form and at any stage to a witness or a party about a relevant or irrelevant fact.
  • The Judge directs that a document or physical object be brought before the Court.
  • A party or an agent 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 165 IEA

In 2021, during a trial in Bhopal over a land sale deed, the Judge seeks proper proof of relevant facts and questions the witness Meera while ordering the party Vikram to produce a draft of the sale deed. The agent for Vikram tries to object to the question and the order for the draft sale deed. The agent also seeks to cross-examine Meera right away on the answer about the sale deed. Under Section 165 IEA, the agent cannot object to the question or the order to produce the draft sale deed, and cannot cross-examine Meera unless the Court grants leave.

When Section 165 IEA Does Not Apply

  • Even though the Judge may ask about irrelevant facts, the final judgment can only be based on facts that the Act 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 121 to 131 IEA if the adverse party asked for it, including questioning a Judge or Magistrate on Court conduct without a superior Court order under Section 121 IEA, or forcing production of documents or electronic records without the consent of another person who could refuse production under Section 131 IEA.
  • The Judge cannot ask a question that would be improper for another person to ask under Section 148 or 149 IEA, such as a question conveying an imputation without reasonable grounds, and cannot dispense with primary evidence of a document except where the Act permits.

Section 165 IEA in the BSA

Section 165 IEA is now covered under Section 168 BSA.

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".

View detailed comparison (IEA 165 vs BSA 168) →

FAQs on Section 165 IEA

What is Section 165 IEA?▼

Section 165 of the Indian Evidence Act, 1872 empowers a Judge to ask any question the Judge pleases of any witness or party and to direct anyone to bring any document or object so as to discover or get proper proof of facts that are relevant. Parties and their agents 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 agent object to a question asked by the Judge under Section 165 IEA?▼

No. Under Section 165 IEA, neither the parties nor their agents 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 irrelevant facts discovered through questioning under Section 165 IEA?▼

No. Although Section 165 IEA lets a Judge ask about irrelevant facts to discover or obtain proper proof of relevant facts, the opening proviso states a strict rule. The judgment must rest only on facts that the Act 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 165 IEA?▼

No. A Judge cannot compel answers or documents protected under Sections 121 to 131 IEA, such as questioning a Judge or Magistrate on Court conduct without a superior Court order under Section 121 IEA or forcing production of records another person could refuse to produce without consent under Section 131 IEA. The Judge also cannot ask improper questions lacking reasonable grounds for an imputation under Section 148 or 149 IEA, or dispense with primary evidence outside exceptions in the Act.

What is Section 165 IEA in BSA?▼

Section 168 BSA replaces Section 165 IEA from 1 July 2024. Section 168 BSA allows the Judge to ask any question the Judge considers necessary instead of any question the Judge pleases, drops the words relevant or irrelevant after any fact, and replaces the word agents with representatives.

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Sources: Bare Act Text, Indian Evidence Act, 1872 ·