Introduction:
“A Judge, who at trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty”
-Delhi High Court in Veda Parkash Kharbanda vs Vimal Bindal (2016)[1]
In every criminal or civil proceedings, examination-in-chief and cross-examination is an important part. It is the duty of lawyers from both the parties to present their evidence their witness according to court procedures. In the whole scenario, the judge is apparently seen with no productive role and observe the evidence only. In order to avoid passivity and neglect of duties from judges Indian Evidence Act 1872[2]. Section 165 of IEA provided or let’s say empowered judges to put a question on the proceedings of the trial at any stage. In this article, this power of a judge to question will be thoroughly discussed.
Legislative System of India
Trial is a process in which a person is innocent or guilty. All criminal trials in India “nudus cum nuda iacebat” which means innocent until proven guilty and not otherwise. In order to protect the rights of accused such path is followed. Indian judicial and legal system is said to be adversarial in nature. However, in the case of criminal trials court seems to have adopted a hybrid of adversarial and inquisitorial mixed. Particularly in criminal justice judges are bound by duty to ask the question in their own power. Indian legislation has made provisions to empower the court and judges to take steps in this matter. Following are some of the circumstances in which judges take an active part in court proceeding apart from observing and recording evidence:
- Succour the charges
- Directing and guiding police officials into further investigation
- Calling any person as a witness or procuring evidence
There are two categories in judicial system in which way courts work.[3]
- Adversarial justice system
- Inquisitorial justice system
The adversarial judicial system is a two-way structure where advocates of two parties present their matter and the judge delivers the judgement according to it. In the inquisitorial justice system, part of the court takes an active part in the investigation of the case. The magistrate observing the case prior to case investigate the matter of the case.
In comparison between both the systems adversarial judge discuss the matter of issues and laws neither inquiring proceedings nor taking part in the investigation. On the hand, an inquisitorial judge can take part in inquiry as fact-finding and public inquiry. Indian judicial has adapted the adversarial justice system. Mali-math committee on reforms of the criminal justice system has suggested shifting judicial system from adversarial justice to the inquisitorial system. However, to maintain impartial justice system Indian courts has adapted a quasi adversarial justice system with certain powers entrusted upon judges.
Mali Math Committee and Legal Reforms
The pillar of the adversarial justice system is a presumption of innocence. Judges normally are advised to not to interfere into trial proceedings. Production of evidence and bringing witnesses is the duty of both prosecutor and defendant. However, there are some circumstances where the only selective pieces of evidence are presented before the court in order to protect either accused or possible culprit. In that case, it is the judge’s duty to demand proper evidence or to bring required witness on their own behalf.
There arises no question of cross-examination as the court itself is questioning for its satisfaction. Pre- Mali math committee period the pendency of cases was the question of concern. The inactivity of judges in the examination of witnesses stimulated and advocates were clever enough to not to bring any substantial information before the court. Mali math committee in their reformative suggestions advised shifting into an inquisitorial system for better justice. The new duty was given to judges to question or demand documents or witness for judicial purpose.
This view is also taken by the Supreme Court from time to time. In the case of Mohan Lal vs. Union of India[4], the Supreme court observed that production of the best evidence that the court can ask for perfect justice is a primary ideal of any trial. Judge not asking for evidence in order to remain neutral opts to remain passive rather seen as casual.
Judge’s Power to Ask Question
The provision in The Indian Evidence Act 1872 guarantees power to judges to put a question at any stage of the trial. The judge in his quest to discover proper evidence ask any question he may please ask for production of any document direct from authorities or either of the parties’ prosecution or defendants. He may question any fact relevant or irrelevant to the matter to clarify the issues for the court. In order to give impartial and fair judgement judge has a duty to ask some mandatory questions to witness which advocates have purposely side-tracked. The judge who is not satisfied with the examination of witnesses taken by advocates is free to ask the question on courts behalf. Section 165 of IEA 1872 is powered with this criterion.
Section 165 of Indian Evidence Act, 1872
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.
The provision has an exception which says a judge cannot compel to witness to answer any question or produce such document which witness is entitled to refuse. It includes both sec 121 and sec131.
If the questions were asked or the documents 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.[5]
To prove this power of judge Supreme Court in the case of State of Rajasthan vs Ani @ Hanif And Others[6] stated that “Section 165 of the Evidence Act, 1872 gave vast and unrestricted powers authority on the trial court to put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant” in order to discover relevant facts.”[7]
When sec 165 of the Indian Evidence Act 1872 is in hand in hand with sec 311 of the Code of Criminal Procedure 1973 gives enormous authority to the judiciary to take any steps to ensure best and fair justice.
In the case of Suresh Chandra Jana v. State of W. B[8], Supreme Court observed that the duty of the court to find a gap between investigation, the discovery of key document or delay in the investigation which causes the leaving of accused is to be avoided by use of sec 165 using powers of a judge.
Above all instances shows the perfect combination of the Indian justice system with a hint of inquisitorial legislation to help in obtaining justice.
Complementary Powers of Judges in CrPC
The scope of powers of a judge is purposefully kept wide in the sense he can ask a question at any instance of the trial proceedings. Section 311 of Cr.PC.is complementary to judges’ power in Sec 165. Supreme Court held that it is not improper to put a question for judges of the trial court. Hence it seems that any judge is entitled to ask a question at any stage of the case. However, under no circumstance, no judge can threaten or use the undue influence of his position to force witness. It is said that judge is permitted to use this special power to obtain the proper evidence only and not otherwise. This provision also applies when the prosecution fails to perform their duties and proper documents are not recovered; judges can order with the help of sec165 to put a question on the witness.
Restrictions on Judge’s Power to Put Down Question
It is said that with great power comes great responsibility. Hence in order to chain the unlimited power granted to judges, there are reasonable restrictions imposed on the court. There are some limitations imposed on the power of judges in sec 165 itself.
- The second part of the provision says that documents privileged under sec 121 and 131 are not to be questioned by judges.
- Furthermore, Judge is prohibited to ask any questions which comes under the title of sec 148 and 149 of the Act.
Case Laws that Underlined Importance of Section 165
There are so many landmark judgements which show the power of judges who deliver justice with their effortless work continuously. Following are some of the case laws which will bring light on the importance of sec165.
- Ram Chander vs State of Haryana (1981)[9]
In the above case, the Supreme Court held that in order to protect innocent and weak court has the duty to bound to use their special powers and bring justice.
- Ritesh Tewari vs State of Uttar Pradesh (2000)[10]
Apex court in the above case held that security of justice is by the full discovery of facts and full knowledge of truth is necessary which can be brought by sec 165 powers.
- Zahira Habib Ulla Sheikh vs State of Gujarat (2004)[11]
In the above case, the Supreme Court observed that sec 165 of the Indian Evidence Act and sec 311 of Code of criminal procedure are into existence for the purpose to bring whole truth before the court. It is a mandatory duty of the court to exercise their powers in the necessary circumstances.
Samjhouta Blast Case Gross Negligence of Justice
In Samjhauta Express Blast case, a special court was appointed by the Indian Government. In the blast of 2007 victims included 43 Pakistani citizens and 10 Indian Citizens. In a shocking decision given by the NIA court, all accused were acquitted and chaos erupted. Many questions were raised on the efficiency of judges sitting in the bench for the above decision. Then opposition and now ruling government of India one of the prominent leaders accused the judges quoting that
“During the tenure of the UPA and the Congress, when there was no evidence, the theory of Hindu terror was floated for the first time in the history of the country to tarnish the Hindu community. Three-four similar cases were made but none of them could stand in the court” – Late Mr Arun Jaitley
It seems to the public that inefficiency of the court was the reason for free acquittal of these accused. The special powers of judges to question was not efficiently used or rather not used at all. The NIA[12] court was a failure to recognize the crime of accused on relying prosecution.
While defending their decision of court NIA counsel Rajan Malhotra said “the court has acquitted all accused and concluded that the prosecution failed to prove the charge of conspiracy. It was a long-drawn trial, many of the witnesses turned hostile and, as per the verdict, the chain of evidence could not be proven”.[13] The whole burden of proof was on the shoulders of prosecution and court refused to cooperate in order to maintain impartiality.
Furthermore, the judge repeatedly said that “I have to conclude this judgment with deep pain and anguish as a dastardly act of violence remained unpunished for want of credible and admissible evidence”[14]
In the end this case labelled as inefficiency of prosecution to present the case.
Conclusion
Section 165 shows the power of the Indian Justice system though adversarial can act inquisitorially if the situation demands. It is the need of the changing society that criminal procedure should be dynamic. The judicial system must be flexible in nature. Though cases like Samjhauta express blast are black spot with the inefficiency of judges there are many cases which shows positive attitude of the courts and judges to take interest in bringing truth for fair justice.
References:
[1] https://www.thequint.com/voices/opinion/nia-judge-section-165-evidence-act-311-crpc-powers-samjhauta-blast-aseemanand
[2] Indian Evidence Act 1872 (act 1 of 1872)
[3] https://abclive.in/explained-adversarial-vs-inquisitorial-justice-delivery-systems/
[4] (1991 Supp (1) SCC 271).
[5]https://indiankanoon.org/doc/302809/#:~:text=%E2%80%94The%20Judge%20may%2C%20in%20order,nor%20their%20agents%20sha20be.
[6] 997 AIR 1023, 1997(1) SCR 199, 1997(6)SCC 162, 1997(1)SCALE287 , 1997( 1 )JT 460.
[7] http://www.harjindersingh.in/home/role-of-a-judge-in-criminal-trial.
[8] (2017) SCC OnLine SC 984.
[9] 1981 AIR 1036, 1981 SCR (3) 12
[10] 2010 INSC 0928
[11]Appeal (crl.)446-449 of 2004
[12] NIA: National Investigation Agency
[13] https://indianexpress.com/article/india/all-four-walk-free-in-samjhauta-express-attack-that-killed-68-aseemanand-5636716/#:~:text=Concluding%20that%20the%20NIA%20%E2%80%9Cfailed,Kumar%20Sarkar%20alias%20Swami%20Aseemanand.
[14] https://www.thequint.com/voices/opinion/nia-judge-section-165-evidence-act-311-crpc-powers-samjhauta-blast-aseemanand
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