Section 165 of the Indian Evidence Act, 1872 speaks about, “Judges power to put questions or order production”. This section says that the Judge has been given the power to ask any question to a witness or to a party, for the purpose of obtaining proper proof of relevant facts. Such question may be asked at any time and may take any form and the question itself may relate to a relevant or an irrelevant fact. The court may also order the production of any document or thing. No party or his agent shall be entitled to raise any objection to any such question or order, nor, without the court's permission, the witness shall be cross-examined as to any answer that he may give.
The object of allowing the judge to ask irrelevant questions was to obtain “indicative evidence“ which might lead to discovery of relevant evidence. It may be noted that Order X, Rules 2 and 4, Order XVI, Rule 14 of C.P.C. and Section 311, Cr.P.C., have conferred similar powers on the court.
Section 165 confers vast and unrestricted powers on the court. The court may question the accused as to what he told to police although Section 162 of Cr.P.C. prevents parties from questioning the accused on that point. A judge may look at a police diary although not requested by either party and may question a witness on that basis. This may enable the judge to expose discrepancies in the statements of witnesses in the court and those recorded in the police diary.
Judge must show intelligent interest and put questions to witnesses in order to ascertain the truth. It is his duty to question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. But, this he must do, without unduly trespassing upon the functions of the counsel of parties. He must not play a part of a party or a prosecutor, nor should he frighten or bully the witnesses.
A judge is empowered under Section 165 to put irrelevant questions to a witness, but he cannot base his judgment on irrelevant facts. The first proviso to this section lays down that the judgment must be based on facts declared relevant by the Act and duly proved. The second proviso lays down that this section shall not authorize any Judge to:
Section 166 of the Indian Evidence Act, 1872 speaks about, “Power of jury or assessors to put questions”. This section says that cases tried by assessors or jury then jury and assessors may put any questions to the witnesses however or by leave of the judge which the judge himself might asked and which considers proper.
Note: - This section has lost its importance as trial by jury or assessors has been abolished in the country.