Section 165 IEA vs Section 168 BSA — Judge's Power to Put Questions or Order Production

In India, Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 165 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. The Judge may still question any witness or party and order production of any document or thing, but "any question he pleases" now reads "any question he considers necessary" and "relevant or irrelevant" is omitted.

At a glance

These are powers of the court, not offences, so no First Schedule classification applies. The BSA commenced on 1 July 2024 (S.O. 849(E), 23 February 2024).

What changed

The "Modified" labels below mark changes in the operative words; whether those changes alter the scope of the power is a reading, discussed after the list.

• Modified — purpose: "in order to discover or to obtain proper proof of relevant facts" becomes "in order to discover or obtain proof of relevant facts". The word "proper" is omitted.
• Modified — the question: "ask any question he pleases" becomes "ask any question he considers necessary".
• Modified — the subject: "of the parties about any fact relevant or irrelevant" becomes "of the parties about any fact". The words "relevant or irrelevant" are omitted.
• Minor edit — who may not object: "neither the parties nor their agents" becomes "neither the parties nor their representatives".
• Minor edit — first proviso: "facts declared by this Act to be relevant" becomes "by this Adhiniyam".
• Minor edit — second proviso: "Provided also" becomes "Provided further"; "authorize" becomes "authorise"; "sections 121 to 131" becomes "sections 127 to 136" (privileged communications and documents); "section 148 or 149" becomes "section 151 or 152" (the court's decision whether a witness must answer, and questions not to be asked without reasonable grounds).
• Identical — the rest: "in any form, at any time, of any witness"; the power to "order the production of any document or thing"; the bar on cross-examination on an answer "without the leave of the Court"; and the rule against dispensing with primary evidence "except in the cases hereinbefore excepted".
• Omitted — Section 166 IEA: the power of a jury or assessors to put questions has no BSA counterpart.

What the changes may mean — a reading. No judgment read for this page considers the new words. On a reading of the text, "considers necessary" ties each question to the Judge's view of what is needed to discover or prove relevant facts, where "he pleases" did not; and the omission of "relevant or irrelevant" removes the words that State of Rajasthan v. Ani (below) relied on when it said a question that "crosses into irrelevancy" stays within the court's power. "Any fact" and "any question … in any form, at any time" remain. Whether the scope has narrowed is an open question until a court decides it.

Statutory text (relevant extract)

Extract, Section 165 IEA (repealed from 1 July 2024), main part:

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; …

Extract, Section 168 BSA, main part and first proviso:

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:

How it works — the power and its limits

The power (Section 168, main part):

1. Purpose — "to discover or obtain proof of relevant facts".
2. Questions — any question the Judge "considers necessary", in any form, at any time, to any witness or to the parties, about any fact.
3. Production — an order to produce "any document or thing".
4. No objection — neither the parties nor their representatives may object to the question or order.
5. No cross-examination on the answer without leave — a party needs the Court's leave to cross-examine a witness on an answer given to the Judge's question.

The limits (the two provisos):

1. Judgment on relevant, proved facts — the judgment "must be based upon facts declared by this Adhiniyam to be relevant, and duly proved". An answer to a court question does not widen what the judgment may rest on.
2. Privilege — the Judge cannot compel a witness to answer, or to produce a document, where the witness could refuse under sections 127 to 136 if the adverse party had asked.
3. Improper questions — the Judge cannot ask a question that would be improper for any other person to ask under section 151 or 152.
4. Primary evidence — the Judge cannot dispense with primary evidence of a document "except in the cases hereinbefore excepted".

The neighbour — Section 348 BNSS. Section 168 BSA lets the Judge question the witnesses and parties before the court and order production of any document or thing. Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), formerly Section 311 of the Code of Criminal Procedure, 1973 (CrPC), brings people before it: "Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined". Its second limb is mandatory: the Court "shall" do so if the evidence "appears to it to be essential to the just decision of the case". Tarun Sharma (below) read the two together.

What this means in practice

For the trial Judge

• Put questions where a material point has been left unclear by both sides, or where a witness appears to have made a slip. Ani (below) approved a trial Judge who interjected during cross-examination to clear up a witness's confusion.
• Keep the questions fair. Ram Chander (below) held that a Judge who threatened witnesses with perjury prosecutions had abandoned the principle of fair trial, and rejected the evidence obtained that way.
• Where a witness essential to a just decision has not been called — in Tarun Sharma, the doctor who certified a dying person as fit to make a statement — consider Section 348 BNSS, and examine that person as a court witness if the prosecution will not.
• Frame each question around the statutory purpose. On a reading of Section 168 BSA, the question should be one the Judge "considers necessary" to discover or obtain proof of relevant facts.

For the prosecutor and defence counsel

• No objection lies to a court question or production order. The remedy is to seek the Court's leave to cross-examine on the answer.
• Test the use of the answer against the first proviso: the judgment must still rest on relevant facts duly proved.
• Where a court question would breach privilege (sections 127 to 136) or be an improper question under section 151 or 152, the second proviso is the ground for resisting it.

For civil litigants

• Section 168 is not confined to criminal trials; it speaks of "the Judge" and "the parties". The provisos apply in the same way.

Judgments that still matter

Ram Chander v. State of Haryana — Supreme Court, 25 February 1981. O. Chinnappa Reddy and Baharul Islam JJ. (judgment by Chinnappa Reddy J.) considered a murder conviction where the Sessions Judge had warned two eyewitnesses that they would face perjury prosecutions if they changed their statements. The Court said that "the presiding judge must cease to be a spectator and a mere recording machine", and that a judge may ask questions under Section 165 but must do so "without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses". It held that the Sessions Judge's questions were intimidating, that "The principle of 'fair trial' was abandoned", and declined to accept any part of those witnesses' evidence. The appeal was allowed. The text shows no paragraph numbers, and our record carries no S.C.R. or INSC citation.

State of Rajasthan v. Ani @ Hanif and Others — Supreme Court, 13 January 1997. Dr. A. S. Anand and K. T. Thomas JJ. (judgment by Thomas J.) heard an appeal against a High Court acquittal. The High Court had disbelieved an injured eyewitness's answer to a question the trial Judge put to him during cross-examination to clear up his confusion, and counsel criticised the Judge for interjecting. The Court said Section 165 "confers vast and unrestricted powers on the trial court", that even a question which "crosses into irrelevancy" stays within the court's power, "This is clear from the words 'relevant or irrelevant' in Section 165", and that "a judge remaining mute during trial is not an ideal situation". It found nothing wrong in the interjection, set aside the acquittal of four respondents and restored their conviction and sentence, while upholding the acquittal of two others. The text shows no paragraph numbers. Section 168 BSA omits the words "relevant or irrelevant" on which part of this reasoning rests.

Tarun Sharma v. State of Haryana, [2025] 9 S.C.R. 1273 (2025 INSC 1139) — 1 September 2025. Vikram Nath and Sandeep Mehta JJ. (judgment by Sandeep Mehta J.) set aside a murder conviction resting on a dying declaration whose fitness certificate was issued by an unidentified doctor who was never examined. At para 51 the Court said the trial court had acted "with total apathy", that "Section 165 of the Indian Evidence Act, 1872 (Section 168 of the Bharatiya Sakshya Adhiniyam, 2023) casts a duty on the Court to remain cognizant and not to act as a mute spectator", and that it ought to have used Section 311 CrPC (Section 348 BNSS) to identify the doctor and examine him as a court witness. The appellant was acquitted (para 67).

Dashwanth v. State of Tamil Nadu, [2025] 10 S.C.R. 587 (2025 INSC 1203) — 8 October 2025. A Bench of Vikram Nath, Sanjay Karol and Sandeep Mehta JJ. (judgment by Sandeep Mehta J.) set aside a death sentence. Setting out what an effective opportunity to defend requires (para 37), it included, at (d), that "The Court should not act as a mute spectator during recording of evidence, as provided under Section 165 of the Indian Evidence Act, 1872 (Section 168 of the Bhartiya Sakshya Adhiniyam, 2023)", and that where an important question is omitted by both counsel the Court must put it. The appellant was acquitted (paras 83-84).

The two 2025 judgments name Section 168 BSA as the counterpart of Section 165 but do not discuss the changed words. On a reading of the text, the core power carries over; what the omitted words change remains to be decided.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". On a reading of that provision, a trial pending on 1 July 2024 applies Section 165 IEA, with its "relevant or irrelevant" wording; one that began afterwards applies Section 168 BSA. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 165 of the Evidence Act? Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 165 of the Indian Evidence Act, 1872 from 1 July 2024. It lets the Judge, 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, and order the production of any document or thing.

What words changed between Section 165 IEA and Section 168 BSA? Section 168 BSA replaces "any question he pleases" with "any question he considers necessary", replaces "about any fact relevant or irrelevant" with "about any fact", and replaces "or to obtain proper proof" with "or obtain proof". "Their agents" becomes "their representatives", and the cross-references are renumbered to sections 127 to 136 and sections 151 or 152 BSA.

Can the parties object to a question put by the Judge under Section 168 BSA? No. Section 168 BSA provides that neither the parties nor their representatives are entitled to object to any question or order made under it. They also cannot cross-examine a witness on an answer given to the Judge's question without the leave of the Court.

What are the limits on the Judge's power to question? The first proviso to Section 168 BSA requires the judgment to be based on facts declared by the Adhiniyam to be relevant and duly proved. The second proviso bars the Judge from compelling an answer or production that a witness could refuse under sections 127 to 136, from asking a question that would be improper under section 151 or 152, and from dispensing with primary evidence of a document except in the excepted cases.

What is the difference between Section 168 BSA and Section 348 BNSS? Section 168 BSA lets the Judge put questions to a witness or party and order production of a document or thing. Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023, formerly Section 311 CrPC, lets any Court summon any person as a witness, examine a person in attendance, or re-call and re-examine a witness, and requires it to do so if the evidence appears essential to the just decision of the case.

Has the Supreme Court applied Section 168 BSA? In Tarun Sharma v. State of Haryana, [2025] 9 S.C.R. 1273 (para 51), and Dashwanth v. State of Tamil Nadu, [2025] 10 S.C.R. 587 (para 37(d)), the Supreme Court referred to Section 165 IEA together with Section 168 BSA and said the trial court should not act as a mute spectator. Both appeals were allowed and the appellants acquitted; both trials had been conducted under the Evidence Act.

Which law applies to a trial that was pending on 1 July 2024? Section 170(2) BSA provides that a trial, inquiry, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement. The BSA commenced on 1 July 2024 under S.O. 849(E), so Section 165 IEA continues to govern those matters.

Related

• Sections 145, 154 and 155 IEA vs Sections 148, 157 and 158 BSA — Hostile witness
• Section 313 CrPC vs Section 351 BNSS — Examination of the accused
• Section 91 CrPC vs Section 94 BNSS — Summons to produce documents
• Section 32 IEA vs Section 26 BSA — Dying declaration
• Offence before 1 July 2024 — which law applies
• Evidence Act to BSA — master mapping table
• Section 162 IEA vs Section 165 BSA — Production of Documents
• Sections 272–283 CrPC vs Sections 307–318 BNSS — Mode of Taking and Recording Evidence

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 127, 136, 151, 152, 168, 169 and 170; commencement footnote to Section 1 (S.O. 849(E)).
• Indian Evidence Act, 1872 (India Code text): Sections 121, 126, 131, 148, 149, 165 and 166.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Section 348.
• Code of Criminal Procedure, 1973 (India Code text): Section 311.
• Judgments read in full text: Ram Chander v. State of Haryana (1981_3_12_21_EN.md); State of Rajasthan v. Ani @ Hanif (1997_1_199_209_EN.md); Tarun Sharma v. State of Haryana (2025_9_1273_1302_EN.md); Dashwanth v. State of Tamil Nadu (2025_10_587_630_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.