"The law should not be seen to sit limply , while those who defy it go free and, those who seek its protection lose hope"

The fundamental objective of the judicial system is to ensure complete justice, that is, to ensure that justice is achieved regardless of procedural limitations. By the power granted to the judge under the various provisions of procedural laws, the judges can exercise his power to override the proceedings in order to achieve complete justice. This shows the inquisitorial powers of the court and also shows that the purpose of courts is to ensure complete justice and should be inactive or play an idle role and be fully in control.

Judge's Power to ask Questions

It is the duty of the judge to discover the truth, and for that purpose he may at any time put to the witness any question in any form on any fact relevant or irrelevant to the case, but he must do so without infringing upon the counsel and without appearing to frighten the witness.

There is no time limit for a judge to ask a question, and if he does not know the depth of the matter, he should continue the questioning regardless of the number of questions needed to reveal the truth. Under Section 165 of the Indian Evidence Act, 1872, the parties or their representatives are entitled to object to any such question or order, nor, without leave of the Court, to cross-examine any witness on any answer given in answer to any such question. It is at the judge's discretion to grant permission to cross-examine witnesses.

Section 165 of Indian Evidence Act and the Powers of Judges

Section 165 of Indian Evidence 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; 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.

The main part of Section 165 enables the judge to ask any question he likes, in any form and at any time, to any witness, party, about any fact, "relevant or irrelevant", or to order the production of any document or thing.

The parties may not object to a question or order, nor cross-examine any witness without leave of the court.

However, whatever the nature of the questions, the judgment must be based on facts that are "relevant" and "duly proved".

There is now a distinction between relevance and admissibility as set out in Chapter XXV of the 69th Report. The Evidence Act in Section 3 defines the words "relevant", "evidence" and "proved". Section 5 of the Act stipulates that disputed and relevant facts can be proved in a lawsuit. The explanation to section 5 reads as follows:

This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure .

The authorization according to section 165 of the Evidence Act supplements the person given according to section 311 of the Criminal Code. The Supreme Court held that asking questions to bring out the truth in a trial court case was not illegal. But when a witness is reprimanded and in danger of being prosecuted by a judge for perjury, if their testimony after the court has held that it exceeds the power conferred on the judge under this section.

A judge under this section may exercise his power only to obtain evidence and find facts relevant to the case. The power to examine parties in pre-trial proceedings is given by Order 10 Rule 2 of the Rules of Civil Procedure and differs from power conferred under this section of the Act.

In the case of Nepal Chandra Roy Netai Chandra Das & State of Rajasthan, the Supreme Court held that the power given to the courts by section 165 is to extract the best evidence , courts shall not be overzealous in asking questions . It shall be patient let the parties put their questions to the witness and after the cross examine if something remains to be answered then the court can ask questions However this is not a rule of law . This a rule of prudence and court have does the power to ask questions at any stage .

Section 165 of IEA is also known as Indicative evidence. Bentham has suggested that such power of the court is for the purpose of extracting evidence of evidence or the indicative evidence . The purpose is to make the evidence provided by the parties more intelligible .

They are called evidence of evidence or answers to the questions asked by the court or document summoned by the court as evidence for the trustworthiness of the evidence proved.

The court can ask questions to a party who is appearing as a witness or it can ask question to the party directing even though he is not appearing as a witness .

Sec 162 Of CRPC And Its Relations With Section 165 Of IEA

Section 162 of the Criminal Code prohibits the use of statements made to the police during an investigation for the purpose of evidence. It is based on the assumption that the police cannot be trusted to record statements correctly, and that the statements cannot be relied upon by the prosecution to corroborate their witnesses, as recorded statements can be self-serving. There is no blanket ban on the use of statements made to police officers.

In the case of Raghunandan v/s State of U.P 1974 , the issue was whether the restriction of sec 162 crpc in reference to previous statement of the witness made to the police in the course of investigation will apply even on court if it is asking questions under 165 of IEA on the basis of his previous statement made to the police . It was held by the court that 162 of crpc is a general provision and on the other hand sec 165 of IEA is a special provision . The restriction of section 162 will not apply upon 165 of IEA . Therefore , the court is free to ask questions to witness on the basis of their statement made to the police in the course of investigation .

The gaps between sec 311 CRPC and 165 of IEA

The judges has unlimited power to call any material witness, or to examine any person present in court, although not called as a witness, or to recall or re-examine any person who has already been examined, if his evidence appears essential to a just decision. matters according to section 311 of the criminal procedural code .

This section gives the court extraordinary power to go a little further in arriving at the truth rather than relying solely on the police investigation report and prosecution evidence which may not be sound in many cases.

This section will help the court when the investigation and prosecution lapses in their duties due to undue influence they are subjected to in high profile cases.

In simple words 311 has two purpose:

1. It gives the court or judge ample scope to cross-examine the witness at any stage.
2. It compels the court to question a witness if his evidence appears to be essential to a just decision by the court.

The powers under Section 311 CPC can be exercised with great care and caution. The court should take any step under the section only if the new evidence appears essential to the fair trial of the case. The objective of the section is to arrive at the truth when the prosecution or defense fails to present the evidence necessary for a just decision in the case.

Under Section 311 of the CRPC , two procedures are possible: if valid reasons are presented, the court may permit either party to call new evidence at any stage, or the court may suo moto call any witness if necessary in the interests of justice. .

The court may hear its own witnesses if neither party is prepared to call witnesses who are prepared to rebut important facts. However, the court is not expected to fill the gaps in the prosecution's case arising out of the cross-examination of the prosecution witnesses in favor of the accused persons by allowing the prosecution to recall their witnesses for re-examination. In short, the summoning of material witnesses to a fair decision in the case by the exercise of authority pursuant to Section 311 of the CRPC is legal and proper.

In Zahira Habibulla H. Sheikh and Anr. Vs State of Gujarat SC 2004 also known as Best Bakery case , court stated that sec 311 of CRPC is complementary to sec 165 of IEA .They also stated that , it is duty of The Court Of The Inquiry to used the authority under Section 311 of the Civil Code and recalled and re-examined the witnesses, as their evidence was essential for achieving the truth and a just decision in the matter. The power under Section 165 of the Indian Evidence Act, 1872 (for short "Evidence Act") was not exercised at all by the trials courts and this also led to a miscarriage of justice.

In Iddar and Ors. v/s Aabida and Anr. SC held following things:

1. In the first part of sec.311 of CRPC the first part is an enabling provision and in the later part and the guideline has been laid down and it is mandatory to summon the witness if testimony of witness is essential for just decision of case.
2. The court under sec 311 has wide discretion but such a discretion is a judicial discretion.
3. The court while exercising its power under section 311 shall not act for the prosecution or defense rather it shall act for ends for justice.
    

Relationship between 311 CRPC and 165 IEA

Section 311 provides for the summoning of the witness and section 165 IEA provides for examination of witness . In Mohanlal Shamji Soni v. UOI , referring to section 165 of IEA and sec 311 of the Code of Criminal Procedure , the Supreme Court stated that the said two sections are complementary to each other and between them , they confer jurisdiction on the Judge to act in aid of justice.

Section 313 of CRPC

Section 313 of the Criminal Procedural Code of 1973 deals with the power to question the accused. It is enshrined in Chapter XXIV of the Act and has four clauses.

The provisions under section 313, paragraph 1, deals with when the accused is allowed at the trial or inquiry to explain in person to the judge any circumstance which is against the evidence against him. This provision is further divided into two parts (a) and (b) .

In Part (a) it is said that may at any stage court be able to ask the accused any question without informing the accused previously which court finds necessary .

Part (b) talks about shall be questioned for his defence after witness for the prosecution have been examined . Section 313(2) of CrPc talks about no oath will be taken by the accused during his trial in sub- section(1) . Section (3) of crpc talks about accused cannot be punished if he refused to answer any such question of the court or if he is giving a false statement . Section 313 (4) of Crpc deals with the answer of the accused may be put against him for any other offence , which he has committed .

The subject of section 313 of the Civil Code is the establishment of a direct dialogue between the court and the accused. If any point in the evidence is important against the accused and the conviction is to be based on it, it is right and proper that the accused should be heard on the matter and given an opportunity to explain it. If the trial court did not ask any specific question about the incriminating material in the prosecution's evidence, it would defeat the trial.

The importance of Section 313 in protecting the rights of the accused during the trial is well known. In fact, the previous CPC of 1898 also contained a similar provision under Section 342. Even the Sixth Amendment to the United States Constitution-ratified as early as 1791-contains the rights enshrined in Section 313, namely the right "to be informed of the nature and cause of the accusation" and "to be confronted with witnesses against him".

Dr. Sunil Clifford Daniel vs State of Punjab in this case the court said that the accused should be informed that if he does not want to answer the question it is allowed but his incriminating statement will be taken into consideration.

In the case of Basavaraj R. Patil and others v/s. State of Karnataka and another court said that if the accused gives a false answer, the missing article can be given. The same case also referred to section 313 paragraph 1 (b) of CrPC and stated that the lawyer cannot be questioned but they can ask questions which should be asked to the accused. Lawyers are also protected and cannot be investigated.

Recently, the Supreme Court had an opportunity to consider the rights of the accused enshrined in Section 313 in the judgment delivered on 26 August 2019 in the case of Samsul Haque v/s. State of Assam. In that case the appellant was convicted of murder and the conviction was confirmed by the Gauhati High Court. However, the Supreme Court observed that only two questions were asked to the accused in the statement under Section 313 and termed them superficial.

Evidentiary value of section 313 CrPc:

The sub section (4) of section 313 of code of criminal procedure has evidentiary value:

1. In same trial , the statement of 313 must be taken into consideration , the cementing evidence are only to fill the gaps it is not evidence.
2. In separate case, it will be use as an evidence , it is a substantive form of evidence.

In Trimukh Maroti Kirkan Vs State Of Maharastra 2006, in same case in the trial of which statement it is provided in sec 313 that it may be taken into consideration . It is not provided that it will be a substantive evidence in same rather it may only taken into consideration . Moreover the statement is not an oath therefore it cannot be used as substantive evidence . It plays the role of only an additional link in the chain if circumstantial evidence .

For instance if the accused does not have any rational explanation rather answers are absurd then the court can convict the accused if otherwise the chain of circumstantial evidence is complete . If the accused has some rational explanation and court has some doubts regarding completion of chain of circumstantial evidence then the court can acquit the accused .

Conclusion
All powers the Judge or Magistrate has and how they can make the best of use of them. Some powers like the main one under section 165, has a few limitations like he cannot compel the witness but in the end the Judge is the one who has to use the power with a lot of care an honesty with the best of his knowledge.

Section 165 has a wide ambit and scope but the Judge has to be careful in interrogating the witness so that the questions are not improper and threat to the witness. The Judge has the power to decide the relevancy of facts and how the evidence has to be produced depending upon the relevancy and dependency on other facts.

Section 165 imposes a duty on the judge to reveal the truth complete justice and empowers him to summon and examine or recall and re-examine any such person if his evidence appears be essential to the just decision of the case. The judge must play an active role to reveal the truth. He is expected, and indeed it is his duty, to explore all the avenues open to him to ascertain the truth, and for that purpose to examine the witnesses on points which the counsel for the parties have either overlooked, or left vague, or deliberately avoided.

But while in theory the powers of the Judge are unlimited and unfettered, certain principles have been recognized by which he must be guided in the manner in which he exercises the power. The higher the power, the more careful its performance should be. Needless to say, he must not take sides, but he also must not "descend into the arena" and waive his legal claim for the zeal of a fighter.

The evidence to be obtained should appear to the Court to be essential to the just decision of the case by arriving at the truth by all lawful means. Section 167 is intended to protect against vexation of process Court decision on technical reasons for admissibility or inadmissibility of evidence if it did not lead to a miscarriage of justice. The goal of both parts is ultimately to achieve substantive justice.

The law stipulates the obligation to present before the accused any evidence that proves him guilty. Section 313 was inserted for the principle of natural justice and fairness. The accused should always have a chance to prove his innocence. This section helps the accused to prove his innocence in the eyes of the law and helps the judiciary to serve justice in a better way. "It is better for ten guilty to escape than for one innocent to suffer," said Blackstone.

Written By: Kaushiki Singh