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BSA 2023 § 168 — Judge’s power to put questions or order production

§ SECTION 168 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Judge’s power to put questions or order production

The Judge is no mere umpire. To get at the truth, the Judge may ask any question — any form, any time, of any witness or party — and order production of any document or thing; the parties get no veto, but firm safeguards remain.

How to read Section 168

The Judge may question and call for evidence freely to reach the truth — the parties cannot object — but the judgment must still rest on relevant, proved facts, and privilege, decency and the primary-evidence rule all survive.

The wide power

The Judge may ask any question — any form, any time, any witness or party — and order production of any document or thing.

No veto for the parties

They cannot object to the question or order, and cannot cross-examine on the answers without the court’s leave.

The safeguards

Judgment on relevant, duly-proved facts only; privilege (§§ 127–136), the improper-question bars (§ 151/152) and primary evidence all survive.

The bare Act

The section in its own words — the wide grant, then the two provisos that fence it.

Section 168 · verbatim

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.

In short: the Judge is not a mere umpire. To discover or obtain proof of relevant facts, the Judge may 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 crucially, neither the parties nor their representatives may object to such a question or order, nor cross-examine any witness on the answers without the leave of the Court. But this large power is fenced by three safeguards. First, the judgment must still be based only on facts declared relevant by this Adhiniyam and duly proved — the Judge may roam widely in questioning, but must decide on properly-proved, relevant material. Second, the power cannot override privilege: the Judge may not compel a witness to answer or produce what he could refuse under §§ 127 to 136 (affairs of State, official and marital communications, professional and legal-adviser privilege, title-deeds, and another’s documents), and may not ask a question that would be improper for anyone else under § 151 or § 152 (indecent, scandalous or insulting questions, and questions put without reasonable grounds). Third, the Judge may not dispense with primary evidence of a document, except in the cases already allowed. The section thus arms the court to pursue the truth actively, while keeping it inside the rules of relevance, privilege, decency and proof.

→ This carries forward IEA 1872 § 165 — the Judge’s power to put any question and order production, subject to the relevance, privilege and primary-evidence safeguards.

Glossary

discover or obtain proof of relevant facts

The purpose of the power — getting at the truth.

ask any question… in any form, at any time

The Judge is not bound by the limits that constrain the parties’ own questions.

order the production of any document or thing

The court may itself call for evidence.

no objection… nor cross-examine without leave

The parties get no veto, and need the court’s leave to test the answers.

declared… relevant, and duly proved

The judgment must still rest on relevant, proved facts.

sections 127 to 136 / section 151 or 152

The privileges and improper-question bars the power cannot override.

The picture

The court may drive the inquiry — question freely and call for evidence, with no veto for the parties — but always within the fence of relevance, privilege, decency and proof.

the JUDGE may askANY question, any time& ORDER any productionparties get NO vetono objection; no cross-examon the answers without leaveto DISCOVER or PROVErelevant factsSAFEGUARD 1 · judgment only on facts declared RELEVANT & DULY PROVEDthe Judge may roam in questioning — but must decide on proved, relevant materialSAFEGUARDS 2 & 3 · privilege §§ 127–136 & improper-question bars § 151/152 survive— and primary evidence of a document is not dispensed with

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

the powerThe court may question freely and call for evidence — with no veto for the parties

In one lineThe Judge may ask any question of any witness or party and order production of any document or thing — and the parties cannot object or (without leave) cross-examine on the answers.
JUDGE asks ANY questionany form, any time, any witness& orders any productionparties: NO objectionno cross-exam on the answerswithout the Court’s leavethe court itself drives the inquiry — the parties cannot block it
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;the court itself may question & call for evidenceunbound by the limits that constrain the parties’ own questioning.
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:→ parties get no veto; cross-exam needs leavethey cannot block the question or order, and may test the answers only with the Court’s permission.
ExampleSensing a witness is evasive, the Judge puts a pointed question neither side asked, and calls for a ledger neither side produced. Counsel cannot object — and may probe the answers only with the court’s leave.
✗ Not thisThis is a power to investigate, not to decide on a whim. The provisos still bind: the judgment rests on relevant, proved facts alone.

the safeguardsThe wide power is fenced — by relevance, privilege, decency and proof

In one lineJudgment on relevant, proved facts only; no compelling privileged answers or documents (§§ 127–136); no improper questions (§ 151/152); and primary evidence is not dispensed with.
1 · judgment only on RELEVANT, DULY-PROVED factswide questioning, but a disciplined decision2 · no compelling PRIVILEGED answers/documents (§§ 127–136)nor asking IMPROPER questions (§ 151 / 152)3 · and PRIMARY evidence is not dispensed with
Provided that the judgment must be based upon facts declared by this Adhiniyam to be relevant, and duly proved:→ safeguard 1: decide only on relevant, proved factsthe Judge may ask widely, but the judgment rests only on facts the Act declares relevant and that are 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.→ safeguards 2 & 3: privilege & decency intact; primary evidence keptno compelling privileged answers or documents (§§ 127–136), no improper questions (§ 151/152), and no dispensing with primary evidence.
ExampleThe Judge may press a witness hard — but cannot make him reveal a professional communication he is entitled to withhold, cannot put a scandalous question, and cannot let a mere copy stand in for an original the law requires.
✗ Not thisThe power is not a licence to override the Act. It widens the court’s reach in questioning, but leaves relevance, privilege, decency and proof exactly where the Act sets them.

Connected provisions

§§ 127–136 · preserved

Witness privileges survive

The power cannot compel an answer or document the witness could refuse under the privilege sections.

§ 151 & 152 · still bind

No improper questions

The Judge may not ask what would be indecent, scandalous, insulting, or put without reasonable grounds, for anyone else.

§ 167 · previous

Refused production, barred from use

The provision just before — a party who refuses a noticed document forfeits its later use.

lineage

IEA 1872, § 165

Carried forward — the Judge’s power to put questions and order production, hedged by relevance, privilege and primary-evidence safeguards.