Judicial Fact-Finding Under Section 165 of the Indian Evidence Act: Scope, Limits, and Contemporary Jurisprudence

Judicial Fact-Finding Under Section 165 of the Indian Evidence Act: Scope, Limits, and Contemporary Jurisprudence

1. Introduction

Section 165 of the Indian Evidence Act, 1872 (hereinafter “IEA”) vests judges with plenary powers to question witnesses and order production of documents “in any form, at any time” for the purpose of discovering relevant facts. Although drafted in expansive language, the provision is hedged by two key safeguards: (i) a judgment must ultimately rest on facts that are relevant and duly proved; and (ii) the power cannot override statutory privileges or the rules of primary evidence. This article critically analyses the provenance, textual contours, and jurisprudential development of Section 165, with particular focus on the Supreme Court’s and High Courts’ evolving approach as reflected in the leading authorities supplied in the reference materials.

2. Historical Context and Legislative Intent

Sir James Fitzjames Stephen conceived the IEA as a codified statement of English common-law principles filtered through utilitarian concerns of the colonial State. Section 165, introduced without precedent in English legislation, was designed to cure what Stephen perceived as the “defects of the adversary system” by empowering judges to assume an inquisitorial mantle where necessary to elicit the truth.[1] The provision therefore functions as a statutory expression of the court’s parens patriae role in the truth-seeking mission of a criminal or civil trial.

3. Textual Analysis

The operative portion of Section 165 confers three distinct but inter-related powers:

  • to ask any question, in any form, at any time, to any witness or party;
  • to order the production of any document or thing;
  • to insulate such judicial interventions from objections by the parties.

These powers are, however, subject to three textual provisos: (a) judgments must rely only on relevant and duly proved facts; (b) the court cannot compel answers or production where a witness could legitimately claim privilege (ss. 121-131 IEA); (c) the court cannot transgress the prohibitions of ss. 148-149 IEA or dispense with primary evidence except in recognised exceptions.

4. Early Jurisprudence: Passive v. Active Adjudication

For much of the colonial and early post-Independence period, Indian courts adhered to an essentially passive adjudicatory model, invoking Section 165 sparingly. Jainab Bibi Saheba v. Hyderally Saheb (1920) underscored that although the judge may ask irrelevant questions for clarification, the ultimate decision must rest on relevant proof.[2] The case presaged later insistence that Section 165 is a tool for clarification, not a licence for judicial fact-substitution.

5. Supreme Court’s Modern Re-Statement

5.1 Ram Chander v. State of Haryana (1981)

Justice O. Chinnappa Reddy delivered a seminal exposition of Section 165, lamenting the “unfortunate tendency” of judges to behave as mere “spectators” and exhorting them to become “participants” in the quest for truth.[3] The Court stressed that while Section 165 grants wide latitude, it does not endorse aggressive or biased questioning that intimidates witnesses or undermines the fairness of trial. The conviction of one accused (Mange) was overturned precisely because the trial judge’s over-zealous interrogation crossed these boundaries.

5.2 State of Rajasthan v. Ani @ Hanif (1997)

Reinforcing Ram Chander, the Supreme Court upheld the trial judge’s proactive questioning to clarify eyewitness identification, emphasising that Section 165 “was framed by lavishly studding it with the word any” and therefore must be construed liberally.[4] The Court, however, cautioned that the resultant answers must still be tested for relevance and proved in accordance with the Act.

5.3 Interface with Natural Justice

In State Bank of India v. Rajendra Kumar Singh (1969) the Supreme Court applied natural-justice principles to fill statutory silence, holding that parties affected by an order for return of seized property must be heard. Although the case concerned ss. 517-520 CrPC, the Court’s reasoning parallels Section 165’s ethos: procedural rules cannot thwart the court’s obligation to surface the substantive truth.[5]

6. Section 165 and Section 311 CrPC: Complementarity

Section 311 of the Code of Criminal Procedure, 1973 (successor to s. 540 CrPC, 1898) authorises the court to summon, recall, or re-examine any witness if their evidence appears essential to a just decision. Jurisprudence repeatedly portrays Sections 311 and 165 as “complementary.”[6] In Zahira Habibulla H. Sheikh v. State of Gujarat (2004) the Supreme Court, invoking Section 391 CrPC to permit additional evidence, reiterated the judiciary’s duty to ensure fair trial even at the appellate stage. The logical foundation of that duty is identical to Section 165’s requirement that the trial judge proactively secure relevant proof.

7. High-Court Perspectives

  • Delhi High Court: A trilogy of decisions—Hardip Kaur (2012), Mayur Arora (2010) and Ved Parkash Kharbanda (2013)—characterises Section 165 as “plenary,” yet reminds that the court “is not permitted to found its judgment on any but relevant facts.”[7]
  • Gujarat High Court: State of Gujarat v. Rajubhai Bariya (2003) emphasised that Section 165 cannot compel production of privileged documents, echoing the second proviso.[8]
  • Kerala & Madras High Courts: A series of decisions (Dharmarajan 2002; Narendra Kumar Mohnot 2000) reject the defence’s routine objection that judicial questions “fill prosecution lacunae,” clarifying that the statute draws no such limitation.[9]

8. Doctrinal Limits: Relevance, Privilege, and Fair Trial

Three doctrinal constraints emerge from case-law synthesis:

  1. Relevance Filter. The first proviso mandates that however wide the interrogation, a verdict cannot rely on irrelevant material. In Khatri Hemraj Amulakh v. State of Gujarat (1972), the Supreme Court discarded inadmissible portions of a confession notwithstanding the trial judge’s enquiries, underscoring the centrality of admissibility rules.[10]
  2. Privilege and Self-Incrimination. Courts cannot use Section 165 to breach ss. 121-131 IEA, Article 20(3) of the Constitution, or statutory bars such as s. 162 CrPC. High-court authorities confirm that judges may inspect police statements to test credibility but cannot admit them substantively without statutory sanction.[11]
  3. Judicial Impartiality. Excessive, leading, or hostile questioning that conveys bias violates Article 21’s fair-trial guarantee. The acquittal in Ram Chander illustrates the remedial consequences of such transgression.

9. Contemporary Challenges

9.1 Complex, Document-Heavy Trials

The growth of economic offences and digital evidence stresses judicial capacity to parse technical material. Section 165 can facilitate on-record clarifications from expert witnesses, but the risk of undue reliance on extra-record knowledge escalates, necessitating strict adherence to proof rules.

9.2 Witness Hostility and Protection

The “Best Bakery” retrial in Zahira Habibulla exposed systemic intimidation of witnesses. Proactive judicial questioning, when coupled with witness-protection measures, can mitigate hostility; yet without safeguards it may exacerbate fear. The judiciary must therefore integrate Section 165 interventions with witness-protection frameworks.

9.3 Virtual Courts

Pandemic-era migration to video-conferencing reduces the judge’s ability to observe demeanour. Section 165 interrogations must adapt to technological constraints, possibly by greater use of screen-sharing for document confrontation and calibrated questioning protocols.

10. Conclusion

Section 165 IEA represents a conscious legislative choice to temper the adversarial model with inquisitorial elements, ensuring that procedural strategy does not eclipse substantive justice. Six overarching propositions emerge from the jurisprudence:

  1. The power is plenary but purpose-bound: discovery of truth is the touchstone.
  2. The provision is complementary to Section 311 CrPC and appellate powers under ss. 391 and 401 CrPC.
  3. Judicial questions must be framed and recorded transparently to obviate allegations of bias.
  4. Relevance and admissibility ultimately determine the evidentiary value of answers elicited.
  5. The provision cannot override constitutional or statutory privileges.
  6. Active judicial engagement, judiciously exercised, fortifies—rather than impairs—the fairness and credibility of Indian trials.

By navigating these contours, courts can deploy Section 165 as an indispensable instrument for realising the constitutional mandate that justice be not only done but manifestly seen to be done.

Footnotes

  1. See J.F. Stephen, Introduction to the Indian Evidence Act (1872).
  2. Jainab Bibi Saheba v. Hyderally Saheb, AIR 1920 Mad 196.
  3. Ram Chander v. State of Haryana, (1981) 3 SCC 191.
  4. State of Rajasthan v. Ani @ Hanif, (1997) 6 SCC 162.
  5. State Bank of India v. Rajendra Kumar Singh, AIR 1969 SC 401.
  6. Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178; Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110.
  7. Hardip Kaur v. Kailash, (2012) 188 DLT 70; Mayur Arora v. Amit Pange, (2010) SCC OnLine Del 1998; Ved Parkash Kharbanda v. Vimal Bindal, (2013) SCC OnLine Del 2730.
  8. State of Gujarat v. Rajubhai Dhamirbhai Bariya, 2003 (4) Crimes 33 (Guj).
  9. Narendra Kumar Mohnot v. CBI, 2000 SCC OnLine Mad 800; Dharmarajan v. State, 2002 SCC OnLine Ker 217.
  10. Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671.
  11. Rameshwar Singh v. State of J&K, (1971) 2 SCC 715.