it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

Rule of Law.-If a party, after notice, declines to produce a document, when formally called upon to do so, he will not afterwards be allowed to change his mind; and, therefore, if he once refuses, he cannot, when his opponent has proved a copy and is about to have it read, produce the original, and object to its admissibility without the evidence of attesting witnesses; neither, after such refusal, will he be permitted to put the document into the hands of his opponent's witnesses for the purpose of cross-examination, or to produce and prove it as part of his own case.*

Judge's power to put questions or order production.

165. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing and neither the parties nor their agents 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 Act to be relevant, and duly proved :

Provided also 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 one hundred and twenty-one to one hundred and thirty-one both inclusive, if the question were asked or the document were

Vide Taylor, secs. 1615 and 1818.

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 one hundred and forty-eight or one hundred and forty-nine; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

Object of the Section.-The object of this section is to enable the Judge either to discover a relevant fact, or to obtain proper proof of it. Therefore, there is no relaxation of the rules as to relevancy. The power hereby given should be exercised with due discretion, and the Judge should not receive illegal evidence at pleasure. He should bear in mind that this power has been given to him to prevent justice being defeated by mere technicality and to secure indicative evidence. Sir J. F. Stephen, in his Introduction to the Evidence Act, at page 162, says: A Judge or Magistrate in India frequently has to perform duties which in England would be performed by police-officers or attorneys. He has to sift out the truth for himself as well as he can, and with little assistance of a professional kind. Sec. 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact whatever. It will not, however, be able to found its judgment upon the class of statements in question for the following reasons:-If this were permitted, it would present a great temptation to indolent Judges to be satisfied with secondhand reports.

"It would open a wide door to fraud. People would make statements for which they would be in no way responsible, and the fact that these statements were made, would be proved by witnesses who knew nothing of the matter stated. Every one would thus be at the mercy of people, who might choose to tell a lie, and whose evidence could neither be tested nor contradicted.

"Suppose that A, B, C and D give to E, F and G, a minute detailed account of a crime which they say was committed by Z. E, F and G repeat what they have heard correctly. A, B, C and D disappear or are not forthcoming. It is evident that Z would be altogether unable to defend himself in this case, and that the Court would be unable to test the statements of A, B, C and D. The

only way to avoid this is to exclude such evidence altogether, and so to put upon both Judges and Magistrates as strong a pressure as possible to get to the bottom of the matter before them."

Reason of the Rule.-The provisions of this section are not in accordance with English ideas. The reason why they have been introduced was given by Sir J. F. Stephen in his speech on the occasion of the Bill becoming law. He said: "I say that, throughout India, generally nothing like English system, under which the Bench and Bar act together and play their respective parts independently, does now exist, or can, for a length of time, be expected to exist. ... In England, cases are fully prepared for trial before they come into Court, so that, the Judge has nothing to do, but sit and weigh the evidence produced before him. In India, in an enormous mass of cases, this neither is nor can be so. It is absolutely necessary that the Judge should not only hear what is put before him by others, but that he should ascertain by his own inquiries how the facts actually stand. In order to do this, it will frequently be necessary for him to go into matters which are not themselves relevant to the matter in issue, but may lead to something that is, and it is in order to arm Judges with express authority to do this, that section 165, which has been so much objected to, has been framed."

The power given by this section to the Court.-(a). In the case of Noorbux Kazi, I. L. R. 6 Cal. 279, the Judge, on the examinationin-chief being finished, questioned almost all the witnesses at considerable length upon the very points to which he must have known that the cross-examination would certainly and properly be directed. The High Court condemned this procedure remarking: "It is not the province of the Court to examine the witnesses, unless the pleaders on either side have omitted to put some material question or questions; and the Court should, as a general rule, leave the witnesses to the pleaders to be dealt with, as laid down in sec. 138 of the Act. The Judge's power to put questions under sec. 165 is certainly not intended to be used in the manner, which we had had occasion to notice in the present case."

(b). Under this section, a Judge has the power of asking irrelevant questions to a witness, if he does so in order to obtain proof of relevant facts; but if he asks questions with a view to criminal proceedings being taken against the witness, the witness is not bound to answer them under sec. 179 of the Indian Penal Code-QueenEmpress v. Hari Lakshman, I. L. R. 10 Bom. 185.

Power of Judge to send for witnesses not produced by Parties.As to, witnesses in civil cases, vide sec. 171 of the Civil Procedure

Code; as to witnesses in criminal cases, vide sec. 549 of the Criminal Procedure Code.

Duty of the Judge in the matter of the Admissibility of Evidence. It will be the duty of the Judge to ascertain, by a few questions put to each witness at the proper time, whether he is speaking of matters within his own knowledge, or merely of those which he has heard from others; and if the former, what are his means of knowledge. The moment a witness commences giving evidence, which is inadmissible, he should be stopped by the Court. Sec. 298 of the Code of Criminal Procedure says that it is the duty of the Judge to prevent the production of inadmissible evidence whether it is or is not objected to by the parties. From the general tenor of the language of the Evidence Act, it would appear that it was the intention of the Legislature that a Civil Court should not, irrespective of objections made by parties, allow inadmissible evidence to go in.

Right to cross-examine witness called by the Court under this section.-(a). The provisions of this section "only forbid the cross examination without the leave of the Court of any witness upon any answer given in reply to a question asked by the Judge." They apply rather to particular questions put to a witness already before the Court than to the whole examination of a witness called by the Court.-Field, 5th Ed., 667.

(b). If a witness, summoned on behalf of the prosecution, is not called by the party, but is called and examined by the Court under this section, the prisoner should be allowed to cross-examine-Empress v. Grish Chunder Talukdar, I. L. R. 5 Cal. 614.

(c). In Reg. v. Sakharam Mukundji, 11 Bom. H. C. R. 166, West J. remarked: "When the counsel for the prisoner has examined or declined to cross-examine a witness, and the Court afterwards, of its own motion, examined him, the witness cannot then, without the permission of the Court, be subjected to cross-examination. When, after the examination of a witness by the complainant and the defendant, the Court takes him in hand, he is put under special pressure, as the Judge is empowered to ask any question he pleases, in any form about any fact relevant or irrelevant; and he is therefore, at the same time, placed under the special protection of the Court, which may, at its discretion, allow a party to cross-examine him; but this cannot be asked for as a matter of right. The principle applies equally whether it is intended to direct the examination to the witness's statement of facts or to circumstances touching his credibility; for any question meant to impair his credit tends (or is so designed) to get rid of the effect of all his answers, and of each of

them, just as much as one that may bring out an inconsistency or contradiction. It is then a cross-examination upon answers--upon every answer given to the Court, and is subject to the Court's control." 166. In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper.

Power of jury or assessors to put




167. The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear

No new trial for improper admission or rejection of evidence.

to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

Rule of English Law." Where evidence has been offered by one party at the trial, and has been improperly rejected or admitted by the Judge after hearing the objections of the opposite party, a new trial, as a general rule, may be claimed on the ground that, in so rejecting or admitting the evidence, the Judge did not rule according to law. But still the Courts have not been in the habit of granting a new trial if, with the evidence rejected, a verdict for the party offering it would be clearly against the weight of evidence; or if, without the evidence received, there be enough to warrant the verdict, yet, unless in a very clear case, the Courts will not thus determine the effect of the improperly rejected evidence, but will direct a new trial." Where evidence has been improperly admitted or rejected

* Vide Lush's Common Law Practice, 2nd Ed., 481.

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