The power of judge to put questions: An Exception to the Adversarial Justice System?

Shivanshu Goswami and Prakhar Srivastava comment on whether the Judge has the power to ask questions.

  • Shivanshu Goswami
  • Prakhar Srivastava


The presuppositions concerning the law, the courts, the proceedings and operations of courts are many and mostly untrue. Stating that most of these assumptions and opinions are branded by filmic representations will not amount to exaggeration. Notably, the actuality stands radically dissimilar to the entertainment sponsored representations. It isn’t uncommon for the visual entertainment media to present a judge putting questions to the victim or the witness. However, in the adversarial criminal justice system present in India, judge presiding as a neutral spectator is equally, if not more, prevalent. For a layman, a judge taking lead in seeking evidence and the truth through evidence may seem like a conventional, undebatable practice with nothing striking to it. However, the legal realm takes distinct positions on this concept, its practice, its necessity and relevance. Nothing in the sphere of evidence law stands simple or uncontested and correctly so. Evidentiary value, interpretation and the procedure to reach the evidence play a colossal role in the legal system and thus, call for debate at every step.

The Adversarial System of India:

The presumption of innocence forms one of the fundamental cornerstones of the adversarial system. The adversarial system essentially advocates a non-interventionist role by the judge who is supposed to oversee the prosecution prove their case beyond reasonable doubt against the accused. The scope of the dispute, the evidence to be brought on record, amongst other things, are largely decided by the parties. 1

As opposed to the adversarial system, an inquisitorial system bestows the judge with the duty to collect all the material which is relevant to the case, and then forward it to the trial judge.This essentially implies that inquisitorial systems require judges to take an active part in the trial proceedings so that they can discover the truth and dispense justice. This is usually brought into effect by the methodology which includes but is not limited to the judge of instructions recording the statements of witnesses during investigation which are in turn admissible in court, ensuring the participation of the victim and the accused in the hearing before the trial judge etc.

A pertinent point to note here is that, since the judge is the person who is asking questions here, there is no scope for cross examination of the witness. The parties may only suggest the question which can be asked by the judge. The prior history of the accused, evidence related to the character of the accused etc are also the factors which are taken into consideration for the determination of the culpability of the accused. 2

1. National Judicial Academy, Access to Justice and Rule of Law, September 14, 2018, available at (Last visited on September 14, 2019).
2. Ujjwal Kumar Singh, State and Emerging Interlocking Legal Systems: Permanence of the Temporary, Economic and Political Weekly, Vol. 39, No. 2 (Jan. 10-16, 2004).

The Malimath committee 3felt that the pendency of the cases coupled with the delay in the administration and disposal of such cases were the necessary implications of the flawed procedure of administration of criminal justice in India, which is time taking and inundated with unnecessary procedure. It also identified the low conviction rates as on more implication of the same. The committee essentially felt that since the judge has a neutral role to play, and merely oversees whether the case has been proved beyond reasonable doubt by the prosecution or not, the system inadvertently becomes inclined to favour the accused. 4

This view has also been taken by the Supreme Court on multiple occasions. In the case of Mohanlal vs. Union of India, the court had said that, the fundamental rule of the law of evidence is that the best available evidence should be brought before the court. However, the responsibility of bringing forth such evidence is either on the defence or the prosecution who are in the quest to establish their own case by using the evidence so produced. Moreover, according to the provisions of the Code, the court cannot ask the prosecution or defence to examine the witnesses of their side for the sake of discovering the truth. Nevertheless, in the event that evidence is withheld by either of the parties, which in turn when produced, could be unfavourable to the party which has withheld such evidence, the court is empowered under §114 5 of the Act to draw a presumption against such a party. The essential question which flows from this is whether the Judge is bestowed with the responsibility of being a referee, who’s role is to merely objectively assess the arguments of both sides, and then declare the result, or is he required to take an active part in the proceedings so that the truth is discovered and justice is served? The role of a court is not to merely do justice but also to ensure that justice is being served. However, the present criminal justice system diverts from this principle inasmuch as, it often so happens that “The Judge, in his anxiety to demonstrate his neutrality opts to remain passive and truth often becomes a casualty.” 6

Furthermore, the confrontational legal system has been condemned for being less cost-effective along with the lawyers’ propensity to bring up evidence advantageous to their side. 7 Ergo, scholars have claimed that adversarial system is less informative and thus, less true. 8 The reason behind this lack of information in adversarial system has been based on the vast nurturing of facts and evidence by a party who plans to mislead. 9

3. JUSTICE V. S. MALIMATH COMMITTEE, Report of Committee on Reforms of Criminal Justice.
4. Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Report, Vol 1, 2003.
5. Section 114 of the Indian Evidence Act, 1872.
6. Meera Devi v. Jitender, MAC.APP. 737/2012.
7. Froeb, L. and Kobayashi, B. (2001). Evidence production in adversarial vs. inquisitorial regimes. Economics Letters, 70(2), pp.267-272.
8. Paul, C. and Wilhite, A. (1990). Efficient rent-seeking under varying cost structures. Public Choice, 64(3), pp.279-290.
9. Block, M., Parker, J., Vyborna, O. and Dusek, L. (2000). An experimental comparison of adversarial versus inquisitorial procedural regimes. American Law and Economics Review, 2(1), pp.170-194.

Demystifying Judge’s power to ask questions:

The Principle:

Section 165 of the Indian Evidence Act entitles the judiciary with one of the most wide-ranging influence to seek the truth. 10 The power enshrined in this section authorises the judge to delve into the depths of the situation. Following this in-depth analysis, a judge can reach helpful indicative evidence that, more often than not, guides the matter to directly applicable and acceptable evidence. 11 But, notably, the judiciary can rely only on relevant records and evidences, as power of the judiciary to put questions and seek the truth can lead the court to depend on second-hand re-counts. These second-hand reports can’t be trusted and would consume the court’s time and put forth multitudes of frauds. 12

In a pretty recent case, Iqbalahamed vs. Vice-Chairman Patel, 13 the court highlighting the understanding of lacuna in the prosecution case stated that while considering production of significant evidence or prompting related information from a witness, an outcome of an omission done by the prosecution should not be paralleled with a lacuna. The court, in this case, rubbished the consequence of the delay or omission and clarified that any such effect can’t be comprehended as a lacuna which can’t be covered by a court.

An analysis of this cases renders how a court can take in relevant records and evidences, even when, and is generally seen, the party objects to it.Noteworthy is the fact that despite the continuous efforts of lawyers to hinder and disregard the judiciary’s authority to put questions on its own, the practice hasn’t subsided with time. Whilst the regularity of practicing this power has never been unchanged, the court’s ability to ask questions independently of the prosecution, has survived, academically and in procedure. 14

Chamberlayne, 15 in his work on Evidence, has pointed out multiple times that the motive of a hearing should be to reach the truth and the crux of the matter, and then imply this truth to confirm justice. Ergo, it is the duty of the judiciary to stimulate the correct factual analysis, albeit neither the truth will be attained, nor justice will be rendered. 16 Stressing the need for the court to render justice in all situations, the judiciary in Iqbalahamed v Vice Chairman17 opined thatthe court is supposed to practice the enormous power enshrined in itself under Section 165 of the Evidence Act, 18 for rendering justice at all cost. Relying on Raj Kumar v. Ajay Kumar,19 in the aforementioned case, the court reiterated that not just the judges but the all the presiding members of the bar owed the duty to the litigants to seek justice.

10. B.M. PRASAD & M. MOHAN, LAW OF EVIDENCE, Vol.4 5430 (19th ed., 2013).
11. Sky Land v. Kavita Lalwani, 2012 SCC Online Del 3082.
12. Stephen, J.F., 1872. The Indian Evidence Act (I. of 1872): with an introduction on the principles of judicial evidence. Macmillan.
13. Iqbalahamed vs. Vice-Chairman Patel Integrated Logistics Ltd, MANU/KA/0846/2017.
14. John Henry Wigmore, Treatise on Evidence in Trials at Common Law, 3rdedn, Little, Brown and Co, Boston, 1940, p. 784.
15. Charles Fredric Chamberlayne is the main author of ‘A Treatise on the Modern Law of Evidence.’
16. Chamberlayne,C.F. and Joyce, H.C., 1916, A Treatise on the Modern Law of Evidence: Media of proof, ed by HC Joyce (Vol. 5). M. Bender, p. 534.
17. Supra Note 12.
18. Section 165 of Indian Evidence Act, 1872.
19. Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343

Similarly, in Mohd. Iqbal v. State of Uttarakhand, 20 the the applicant’s counsel referred to the ruling in State of Uttarakhand v. Tilak Set. 21 The counsel argued that the primary objective of a case is to attain truth behind the situation. The court in the aforementioned case had said thatany trial without the pursuit for justice does not make sense. The court observed that that the judge’s powers like that of putting questions to the witness or the victim serve the intention of advancing justice to the parties, irrespective of the fact whether the parties or their lawyers have mistakenly or intentionally overlooked something.

Furthermore, Section 165 of the Evidence Act 22 when read with Section 311 of the Code of Criminal Procedure, 23 confers the judiciary with enormous authority to undertake all necessary measures which the court deems fit to reach the truth and render justice. 24 This principle has hardly ever been challenged. In a recent case, Krishnegowda v. State of Karnataka, 25 the court accentuated how the aforementioned sections should be used to strive for justice. The court stated that in case of a criminal wrong, breakdown of justice wouldn’t be against the victim but the society at large. The Supreme Court has assessed the complementary relation betwixt Section 311 of the Criminal Procedure Code 26 and Section 165 of the Evidence Act 27 in Sister Mina v State of Orissa28 as well. An analysis of these judgements highlights how the courts’ position on the principle has been the same.

On similar lines, in Suresh Chandra Jana v. State of W.B., 29 following the utilization of Section 165 of the Evidence Act, it was held that the duty of a court is to discover the actuality and accepting a small gap or delay in investigation as a factor for letting go of the accused, shouldn’t be fine with the court. More so ever, when the truth is hindered.

Analysing the stated cases show how despite the presence of an adversarial system in the country, there are pleasing hints of inquisitorial justice in the legal system.

20. Mohd. Iqbal v. State of Uttarakhand, (2019) SCC OnLineUtt 653.
21. State of Uttarakhand v. Tilak Set, Criminal Revision No. 161 of 2010.
22. Section 165 of Indian Evidence Act, 1872.
23. Section 311 of the Code of Criminal Procedure, 1973.
24. K. RAO, LAW OF EVIDENCE, Vol 4 6558, (18th ed., 2009).
25. Krishnegowda v. State of Karnataka, SCC OnLine SC 284.
26. Supra note 21.
27. Supra note 22.
28. Sister Mina v. State of Orissa, Criminal Appeal No.2044 of 2013, SLP (Crl.) no.1103 of 2012.
29. Suresh Chandra Jana v. State of W.B, (2017) SCC OnLine SC 984.

Questioning by the Judge:

Diverse countries have sported sundry approaches towards the judge’s power and right to ask questions. Primary case in point being countries in Europe.In most of the European countries, the judiciary is obliged to reach the truth on his own by pushing his or her persuasions along with the ones forwarded by the prosecutor. France being one of the leading countries to apply this practice, would make for a decent example. As per the French system, the judge takes an active part in the questioning to an extent where the judge, along with the prosecution, directs leading questions whilst assessing witness. Whereas, England observes a dissimilar system: The interrogation is spearheaded by the legal representatives of the parties. Interrogation or examination isn’t done by the judge. Nevertheless, he may still add additional or accompanying queries. 30 Ergo, prominent examples of both the legal justice systems can be found in Europe.

Moreover, Principles of Evidence state that a judge can put ahead any query in any structure or state at any point of the litigation. Furthermore, a judge can reasonably permit the parties to the litigation and their legal representatives to perform the same. But, this mustn’t be confused with acceptance of unlawful evidence at the judiciary’s pleasure. 31

The debate whether a court can put forth an irrelevant question or not, has been brought up time and again. However, the court’s stance on the debate hasn’t really changed with time. Very recently, in Sanjay Kumar v. State of Bihar, 32 the court can go ahead with any query whether relevant or irrelevant. Furthermore, the court discoursed that the litigants or their representatives cannot advance any protest against any query put ahead by the judge.

Moreover, in another recent case, 33 the judiciary acclaimed the harmonizing and corresponding relation betwixt Section 165 of the Evidence Act 34 and Section 311 of the Criminal Procedure Code. 35 The court laid emphasis on how both the sections when read together enshrine the court with the power to question the witness at any point during the trial.

To render comprehensive justice to the parties, the Court ought to invoke provisions as under Sec. 165 of Indian Evidence Act, 1872 which allows courts to call for evidence at any stage. However, this vests a lot of power in judiciary and hence there needs to be a balancing mechanism in place to prevent the tempering of the powers given to the courts. 36

However, this practice must be implemented with apt prudence. 37 As has been stated in Dina Nath v. State of Bihar, 38 whilst the choice to the judiciary is quite extensive, the extent of the law needs to be kept in a check.

We see that the power vested under Sec 165 of the act in question complements the powersavailable under Sec. 311 of the procedural law (CrPC) 39. We find two aspects of it-

  • a) court is bestowed withcertain level of discretion so as to examine and test the witnesses at any stage
  • b) while examiningthe witness, the court needs to ensure that the decision is just, fair and the evidence is properlytaken into consideration. 40

30. B.M. PRASAD & M. MOHAN, LAW OF EVIDENCE, Vol.4 5434 (19th ed., 2013).
31. K. RAO, LAW OF EVIDENCE, Vol 4 6567, (18thed., 2009).
32. Sanjay Kumar v. State of Bihar, (2014) SCC OnLine SC 67.
33. Mohd. Iqbal v. State of Uttarakhand, 2019 SCC OnLineUtt 653.
34. Supra Note 21.
35. Supra Note 22.
36. Eisai Co. Ltd. v. Satish Reddy, 2019 SCC OnLine Del 8496.
37. WM Best, A Treatise on the Principles of Evidence, fourth edn, H Sweet, London, 1866, p. 93.
38. Dina Nath Chamar v. State of Bihar, Criminal Miscellaneous No.3048 of 2016.
39. Section 311 of the Code of Criminal Procedure, 1973.
40. When the court is merely a silent spectator. [online] Available at: [Accessed 15 Sep. 2019].

The role of the courts is to be more than just as a safeguard of records or witnesses, but therelevant provisions at hand (Sec. 311 and Sec. 165) gives the court large powers so as to elicitevery pertinent and necessary material. It is possible for the court to know which material isnecessary is essential only when they are involved in the entire process of evidence collectionand in monitoring the proceedings. Furthermore, if the court believes that there is somethingunusual about the prosecutor or they are not working in a manner which befits the office andtheposition they are at, then there can be an effective control over the proceedings by the court aswell. It would be the fault of judiciary if they ignore or stay oblivious to any of the loopholes ordereliction of the duties of the officers in power. 41

We observe from the case of Iqbalahamed v. Chairman Patel Integrated Logistics Ltd., 42 that Supreme Court stated that they do not wish to be treated as umpires without any stake in the process, nor as silent spectators but want to take a pro-active role in the entire process. They talked about the powers that lie in Tribunals to exercise their power to summon witness under Sec. 165 of the Indian Evidence Act and it should be exercised regardless of all the unnecessary justifications which will not be taken into consideration. We see that knowing the truth is not enough, if we don’t use that to render justice, so it is justified if the presiding officer calls any witness to the court and it will not consider a bias or prejudicial act against the claimant.

Interestingly, in Ccl Lk Lkp v. State, 43 the judgement stressed upon the need for an inquisitorial system in Children’s court. While discussing the same, the court said that Section 165 of the Evidence Act 44 must be invoked while assessing witnesses in children’s court. The implication behind the same being the need to avoid adversarial proceedings in children’s court. An analysis of the judgement and the rules relied upon in the judgement justify the need of the same.

Extent of Judge’s Power:

As per the aforementioned analysis, it can be stated that Section 165 clarifies that the judiciary isn’t just a referee at contest betwixt litigants represented through their attorneys. For the sake of justice, a judge can’t just announce that winner and the loser. 45 She is required to find and reach for the truth through the multiple powers envisaged in her position: Examining witnesses or victims on grounds that the attorneys have missed or skipped intentionally. Notably, the motto of the Indian Judiciary necessitates the presence of ‘righteousness’ for ‘victory.’ 46 Ergo,in case the judge feels that assessment of the witness or the victim isn’t strong or appropriate enough to carve the truth out of the situation, he or she is bound to spearhead the questioning. The width of the judge’s power, as stated in the section and the previous section have been reiterated in ShantilalJayantibhaiBabariya vs. State of Gujarat.47

41. Bal Krishan v. State of J&K, CRMC No.267/2016.
42. Iqbalahamed v. Vice-Chairman Patel Integrated Logistics Ltd, MANU/KA/0846/2017.
43. Ccl Lk Lkp v. State, RL.REV. P. 985/2018 & Crl.M.A.47265/2018.
44. Supra Note 21.
45. Maria Fernandes v. Erasmo Jack, 2012 SCC Online SC 281.
46. Motto of Indian Judiciary: ‘Where there is Righteousness, there is Victory.’
47. ShantilalJayantibhaiBabariya v. State of Gujarat, MANU/GJ/0140/2018.

Whilst the judge is dutybound to seek the truth and serve justice, and Section 165 of the Evidence Act when read with Section 311 of the Criminal Procedure Code pronounce colossal authority upon the judiciary with respect to this power, he or she is expected to prescribe to few tested principles. Precisely, these principles distinguish the conduct that guides the judge’s practice of putting questions. Whilst neutrality of the judge need not be reiterated, she or he shouldn’t let go of the judicial composure and resort to any sort of aggression. Patel Maheshbhai v. State of Gujarat48 is recent case law where the court repeated the significance of dignity that a judge needs to maintain whilst exercising his or her power under Section 165 of the Evidence Act.

Additionally, neutrality of the judge while exercising his power to put questions was emphasized in Suresh Chandra Jana v. State of W.B.49 The judgement stated that external factors should not sway the judge’s opinion, albeit justice stands hindered.

Irrelevant Questions:

The debate whether or not can a judge put forth an irrelevant question has been brought up innumerable times. However, the court’s stand on this question has been pretty much the same over decades. Indian Courts comprising of the Supreme Court and various High Courts have stated that a judge can put forth any query in any structure or state at any point of the dispute resolution. However, a check must be kept on this power wherein the judiciary utilises regular or irregular questions to seek evidence of relevant facts.

As stated earlier in the article and most recently by the judiciary in Sanjay Kumar v State of Bihar, Section 165 empowers the judge to put forth any question he or she pleases. The court, in the same case, states that no objection can be raised against the queries forwarded by the judiciary.

Need for Convergence of Criminal Justice Doctrines:

The Malimath Committee delved into the need and the repercussions of on the contemporary Criminal Justice System in India. The Committee, further, diverged into the effects of opting any other system. After assessing the Inquisitorial System present in many other countries, the committee determined that letting go of an inquisitorial system will be problematic for a country like India: Primary considerations emphasized by the committee being better fortification of just trial and impartiality towards the alleged in an adversarial system. For occurrence, empirical research has shown that a completely inquisitorial system is hit by prejudice and bias. 50

The Malimath Committee, nevertheless, acclaimed the presence of some Inquisitorial features in the system. Moreover, the Malimath Committee stressed the need for opting other virtuous and noteworthy features of the Inquisitorial Justice System in the current system. For instance, judge’s obligation to seek truth and need for acceptance of a more active and practical judiciary in the current system were highlighted.

48. Maheshbhai v. State of Gujarat, (2015) 1 SCC (Cri) 496.
49. Suresh Chandra Jana v. State of W.B., (2017) 16 SCC 466.
50. Lind, A., Thibaut, J. and Walker, L. (1976). A Cross-Cultural Comparison of the Effect of Adversary and Inquisitorial Processes on Bias in Legal Decision Making. Virginia Law Review, 62(2), p.271.

Gradually, intellectuals and academicians across the world are making home with the fact that one theory models have been overextended and relied upon way more stringently than needed. While both the inquisitorial and adversarial system present a rosy picture of dealing with wrongs and reaching to justice, the practicality begs to differ. Against countless wrongdoings and innumerable wrongdoers, one style of resources will always find a hard time to match up. The aforementioned observation has brought the criminal justice across an integration of legal structures or legal arrangements: Closer to a system where utilizing techniques from other systems and traditions, as and when necessary, is appreciated. 51

Analysis of all the recent cases show how convergence of legal structures is the optimum manner to conduct trials as they provide much more flexibility to the system. Moreover, it increases the reach of the law.


The representation of the Indian legal system in the above section of the paper highlights that it is an adversarial system, but not a very strict one at that. There exist hints of inquisitorial systems in multitudes of places.

The presence of the exception in question, i.e., the power of a judge to put questions, shouldn’t be just appreciated but also made known/accustomed to the entire judicial system of the country. Furthermore, the criminal justice procedure should be made as dynamic as possible.Such dynamism provides the judiciary with the flexibility needed to solve cases in a country which has over 3.3 crore pending cases.

Additionally, a study and an analysis of the recent cases sheds light on the fact that the power of a judge to put questions has been debated, discussed and deliberated upon for years. A breakdown of the analysis, further, highlights how the court’s stance has been the same over the debates that have revolved around the power of the judge in question. The courts have always upheld the power of a judge to put questions to the witness and the victim. Moreover, the cases highlight how the recent developments do not differ much from the stance which the courts have maintained over the years with respect to the principle, the width and the extent of the judge’s power to put questions, or relevancy of the question asked among other things.

Despite an absence of sufficient recent cases that elaborately explain the topic, the power of a judge to put questions can be analysed, compared and contrasted through the available case laws. One of the most significant factors that need to be checked is the manner with which the judge exercises this power. It must be noted that a judge has to maintain his demeanour and make sure that he doesn’t intimidate the witness or the victim. Else, the very sanctity and the entire exception that this section decrees on the adversarial system gets lost. Nevertheless, as stated in the paper, cruciality of the judge’s questions must not be ignored. Moreover, external factors shouldn’t hamper a judge’s right to put forth queries, irrespective of the relevance of questions. But then again, as highlighted above, these questions can’t come out of thin air. There has to be some relation to the case and a chance to attain indicative evidence, if not directly relevant evidence. Not keeping the aforementioned checks on the law, will defeat the purpose of this section and slice the exception useless by taking the very meaning and sense out of it.

51. Goldstein, A. (1997). Converging Criminal Justice Systems: Guilty Pleas and the Public Interest. Israel Law Review, 31(1-3) Goldstein, A. (1997), pp.169-182.

Conclusively, re-entering the act of putting questions by the judge and active investigative role along with the prosecution shouldn’t be looked down at. Moreover, the benefits of the section coupled with the need to cover up for the incapacity of the investigation authorities or the attorneys, must be made at ease with the entire legal system at large. Also, while the author stands for the belief that ‘justice delayed is justice denied,’ and haste should be kept in check but the judge must utilize his power efficiently to reach to the truth.

Whilst the judge’s power to put questions brings along justice absorbed in itself, the consequences or effects of added power need to be deliberated upon in more specificity. As stated in the article, amidst the benefits of this inquisitorial exception, bias entering the judicial system of rendering justice, is a possibility.

SHIVANSHU GOSWAMI an advocate practising before High Court Lucknow bench & District Sessions Court Lucknow and PRAKHARSRIVASTAVA is studying law at theNational University of Juridical Sciences, Kolkata. They can be reached at