Section 168 Bharatiya Sakshya Adhiniyam, 2023: Judge’s power to put questions or order production

Section 168 of Bharatiya Sakshya Adhiniyam, 2023: Judge’s power to put questions or order production

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Document Sec 2(1)(b) Evidence Sec 2(1)(c)

Legal Commentary & Landmark Judgments: Section 168

Section 168 vests extraordinary statutory powers in the Judge to discover or obtain proper proof of relevant facts, empowering the court to put any question to any witness or party, and to order the production of any document or thing at any stage.

Proactive Judicial Role: Indian trial judges are not passive spectators; they have an affirmative duty to discover the truth.
Omnibus Questioning Power: Judge may ask any question, in any form, at any time, of any witness or party, about any fact relevant or irrelevant.
Two Statutory Provisos: Limitations: (1) Judgment must be based upon facts declared relevant by the Act and duly proved, and (2) Judge cannot compel disclosure of privileged communications (Sections 127-136) or ask improper questions.

Key Landmark Precedents:

Ram Chander v. State of Haryana (1981) 3 SCC 191: The Supreme Court held that while the judge has wide powers under Section 165 IEA (Section 168 BSA) to elicit the truth, the judge must not usurp the role of prosecutor or intimidate witnesses, maintaining judicial detachment.
State of Rajasthan v. Ani (1997) 6 SCC 162: Affirmed that the judge must actively question witnesses to clear doubts and ensure that crucial evidence is not overlooked through counsel negligence.

Courtroom Practice & Strategic Litigation Guidance:

If a critical clarification was missed during examination, do not hesitate to suggest a question to the bench: 'May Your Honor be pleased to clarify this point under Section 168 BSA?' Trial judges routinely exercise this power to ensure a complete record.