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 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 be dispense with primary evidence of any document, except in the cases hereinbefore excepted.
Object. Section 165 has vested extensive power on the judges for the interest of administration of justice. A judge can, therefore, put any question to the witness or to the party at any time which it thinks fit for knowing the truth of a case and making it more clear.
Judge’s power to question:
By this section a judge is empowered:
(i) To ask any question in any form and at anytime to any witness or to parties about any fact either relevant or irrelevant.
(ii) To order the production of any document or thing.
This section expressly directs that a party or his agent shall be entitled to make any objection when the court is exercising its power. It also provides that no party shall be entitled to cross-examine the witness upon answer given by the witness. When any question is asked by a judge no party can without permission of the court “examine or recall or re-examine any witness for the interest of justice. A judge has wide power to participate in a trial to elicit the truth of the case.
The person under section 311 of the Cr.P.C. is complementary to the power provided under section 165 of the Evidence Act. The Supreme Court held that it was not improper for the trial court to put questions for eliciting the truth. But, when the judge rebuked the witness and threatened them with prosecution for perjury if they changed their statements, it was held that the judge exceeded the power conferred upon him by this section.
A judge must exercise his power only to obtain proper proof or discovery of relevant facts. The power to identify the matters in controversy by examination of parties at the pre-trial stage under Order 10, Rule 2 of the Code of Civil Procedure is completely different from the power exercised by the court under section 165 of the Evidence Act.
If the prosecution fails to discharge this onerous duty, the trial court should be vigilant and put this question as per provision under section 165 of the Evidence Act. The power of the court to question parties before it is extraordinary power to elicit truth and to act in interest of justice and the party cannot tell the court that the question put to him is irrelevant.
The first proviso deals with the power of the court to question a witness. It provides that the judgment must be based upon the facts, declared by this Act to be relevant, and duly proved and it would be intolerable that the court should decide rights upon suspicious unsupported by testimony.
Section 165 lays down that the court shall not compel any witness to answer any question or to produce any document which is privileged under sections 121 to 131 both inclusive. Similarly, a judge is not entitled any question which is improper under sections 148 and 149 of the Act (Proviso 2).
Limitation of court’s power under section 162 of the Cr. PC:
When any witness appears as defence witness or a court witness, neither the defence nor the prosecution contradict his statement recorded under section 161, Cr. PC as it is the bar of Section 162 of the Cr. PC. Although the Section 162, Cr. PC is very wide, it is not explicit or specific to impose prohibition upon special power of the Court vested under section 165 of the Evidence Act. So, Section 162 Cr. PC does not impair special power of the Court.