Judge’s power to put questions or order production
Section 165 of the Indian Evidence Act, 1872 deals with 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; The Act came into force on 01 Sep 1872. Repealed by section 170 of the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
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.
Section 165, The Indian Evidence Act, 1872 (Act 1 of 1872).
Now in the Bharatiya Sakshya Adhiniyam
BSA 168 Judge's power to put questions or order production Text carried over almost unchanged 95%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Referred to by 1
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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State of Haryana vs Ram Mehar and OTHERS Etc Etc
Court's Decision & Legal Precedent
The power to recall and re-examine witnesses under Section 311 Code of Criminal Procedure, despite its broad language permitting exercise at any stage of trial, cannot be exercised merely on the ground that defense counsel was ill or inadvertently failed to put certain questions to witnesses. The exercise of such power must be justified by established legal principles requiring that the evidence appears essential to just decision of the case, and must serve the ends of justice by discovering truth and obtaining proper proof of facts. Mere illness of counsel or subsequent discovery of inadvertent omissions in cross-examination by a changed counsel do not constitute valid grounds for recall when substantial trial has proceeded, accused have had multiple opportunities to defend, and no showing is made that justice has been denied. The concept of fair trial, while fundamental to Article 21, must be balanced against the interests of victims and society, and cannot be stretched to such extent that it mortgages the systemic order of conducting trials per the Code of Criminal Procedure or permits abuse of process in the name of fairness.
On this section: Right of judge to put questions to witnesses; cited to establish active role of court in examining witnesses to ascertain truth
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Sister Mina Lalitha Baruwa vs State of Orissa
Court's Decision & Legal Precedent
In criminal proceedings involving allegations of grave offences such as rape, where a statutory witness (particularly a judicial officer) makes oral testimony that directly contradicts documentary evidence prepared by that witness himself, and such contradiction is brought to the trial court's notice by the victim or any party, the trial court is duty-bound under Section 311 Cr.P.C. to recall and re-examine that witness if the evidence appears essential to the just decision of the case. This duty arises independently of whether the victim invokes Section 301 Cr.P.C. (which limits victim's prosecution role), because the proper reconciliation of Sections 301 and 311 permits victims to bring material errors to court's notice, and courts must respond by invoking their broad powers under Section 311 to rectify glaring contradictions. Courts cannot remain passive spectators when such irregularities are brought to notice; they must maintain an active, participatory role to prevent miscarriage of justice. The court's duty is not conditioned by delay if the error is material and affects the just decision of the case.
On this section: Provides courts with power to examine witnesses; considered complementary to Section 311 Cr.P.C. in enabling courts to take active role in examining witnesses to arrive at truth
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Ladi vs State of Haryana
Court's Decision & Legal Precedent
An accused has an indefeasible right to fair trial and equal opportunity to prove his innocence. Electronically recorded conversations are admissible as documentary evidence under the amended Indian Evidence Act and Information Technology Act 2000 when: (1) the conversation is relevant to matters in issue; (2) the voice is properly identified; and (3) the accuracy of the recorded conversation is proved by eliminating the possibility of tampering, erasure, addition or manipulation. Courts must exercise their powers under Section 311 CrPC and Section 165 Evidence Act to examine witnesses and elicit evidence essential to just decision, taking a participatory role in trials to arrive at truth. When a witness has not been cross-examined on material evidence that subsequently emerges, courts should grant opportunity for re-examination to ensure fair trial.
On this section: Extensively discussed as conferring vast and wide powers on Judge to discover or obtain proper proof of relevant facts by asking questions and ordering production of documents. Court emphasized this power is complementary to Section 311 CrPC and requires active judicial participation in truth-seeking.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. ….Therefore, we hold that Section 162, Criminal Procedure Code, does not impair the special powers of the Court under Section 165, Indian Evidence Act. …" (Emphasis supplied) 52. This Court in Dandu Lakshmi Reddy v. State of A.P ., (1999) 7 SCC 69, it was held:- "20. It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under …
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… With this poser, the High Court has analysed the said issue under the following heads: 14 - (i) Concept of fair trial. - (ii) Hostile witnesses a menace to the criminal justice system. - (iii) Exercise of writ jurisdiction for the purpose of retrial. - (iv) Sections 311 and 391 of Cr.P.C. and Section 165 of the Indian Evidence Act, 1872. - 14) The High Court has given a detailed discourse on the necessity to have a fair trial, as a backdrop of the rule of law as well as for dispensation of criminal justice. Taking cognizance of so many judgments [2]( page-14-0) of this Court wherein the concept of fair trial with …
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… With this poser, the High Court has analysed the said issue under the following heads: 14 - (i) Concept of fair trial. - (ii) Hostile witnesses a menace to the criminal justice system. - (iii) Exercise of writ jurisdiction for the purpose of retrial. - (iv) Sections 311 and 391 of Cr.P.C. and Section 165 of the Indian Evidence Act, 1872. - 14) The High Court has given a detailed discourse on the necessity to have a fair trial, as a backdrop of the rule of law as well as for dispensation of criminal justice. Taking cognizance of so many judgments [2]( page-14-0) of this Court wherein the concept of fair trial with …
Questions about Section 165
What have the courts held on Section 165 of the Indian Evidence Act?
State of Haryana vs Ram Mehar and OTHERS Etc Etc (24 Aug 2016) is the leading judgment on this section among those set out below: Right of judge to put questions to witnesses; cited to establish active role of court in examining witnesses to ascertain truth. Another 2 judgments on this section are set out below, 2 of them from the Supreme Court. They run from 2013 to 2016.
How do I find court cases under Section 165 of the Indian Evidence Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IEA 165, section 165 IEA, section 165 of the Indian Evidence Act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 3 reported judgments on this section are set out on this page, beginning with State of Haryana vs Ram Mehar and OTHERS Etc Etc (24 Aug 2016).
What should I read with Section 165 of the Indian Evidence Act, and has it changed?
Its own text turns on section 121 (Judges and Magistrates), section 131 (Production of documents or electronic records which another person, having possession, could refuse to produce), section 148 (Court to decide when question shall be asked and when witness compelled to answer), section 149 (Question not to be asked without reasonable grounds), so none of them can safely be read on its own. 1 other provision in this corpus refers back to it. For anything done on or after 1 July 2024 the provision to read is BSA 168 (Judge's power to put questions or order production), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 165 of the Indian Evidence Act come into force?
Section 165 of the Indian Evidence Act, cited as IEA 165, came into force on 01 Sep 1872, having been enacted on 15 Mar 1872. It is no longer in force.
Other sections of this Act
- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1207 words
- 14. Facts showing existence of state of mind, or of body of bodily feeling1080 words
- 92. Exclusion of evidence of oral agreement809 words
- 8. Motive, preparation and previous or subsequent conduct773 words
- 65B. Admissibility of electronic records743 words
- 3. Interpretation-clause667 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item e51341fa-7528-4327-9a57-5d194e16db6f). This page is not a substitute for legal advice.