Indian Evidence Law | Historical Section 166
Section 166 of the Indian Evidence Act, 1872: Power of Jury or Assessors to Put Questions
Current legal position (October 2026): The Indian Evidence Act, 1872 was repealed with effect from 1 July 2024. Its Section 166 was not reproduced in the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Section 168 BSA separately preserves the judge's power to put questions and order production of evidence.
What did Section 166 provide?
Former Section 166, titled "Power of jury or assessors to put questions", addressed cases tried by a jury or with assessors. Its text stated:
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.
Meaning and scope of the former provision
Section 166 permitted members of a jury or assessors to seek clarification from witnesses, but only through the judge or with the judge's permission. The judge controlled whether the proposed question was proper and could himself ask it. It did not grant a jury or assessor an unrestricted right to interrogate witnesses independently.
The rule was tied to trial procedures involving juries or assessors. Ordinary criminal trials in India no longer use the historical jury system, and this provision was omitted from the new evidence legislation.
Position under the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 (official India Code PDF) took effect on 1 July 2024. Its Chapter X ends at Section 168 and does not contain an equivalent of old Section 166. The omission should not be confused with Section 166 BSA, which concerns giving in evidence a document called for and produced on notice, an entirely different subject.
Section 170 BSA repeals the Indian Evidence Act, 1872 but preserves the former law for applications, trials, inquiries, investigations, proceedings and appeals already pending immediately before commencement, as specified in its savings clause. Accordingly, the former Act can remain relevant to such pending matters.
Judge's power to ask questions: Section 168 BSA
Section 168 BSA, titled "Judge's power to put questions or order production", authorises a judge, for discovering or obtaining proper proof of relevant facts, to question witnesses or parties and order production of documents or things. It corresponds to former Section 165 of the Indian Evidence Act, not former Section 166.
The judicial power is subject to important safeguards. A judgment must rest on legally relevant and duly proved facts. The section does not override specified protections relating to privileged communications, improper questions or the rules governing primary documentary evidence.
Practical illustration
In a historical trial conducted with assessors, an assessor who wished to clarify a witness's account could propose a question through the judge. The judge would decide whether it was proper to ask. In a trial governed by the BSA today, questioning by the presiding judge is governed by Section 168; there is no separate jury-or-assessor questioning provision corresponding to old Section 166.
Official legislation and further reading
Read the official BSA text and the Ministry of Home Affairs' new criminal laws resources. The Bureau of Police Research and Development's BSA guide also identifies former Section 166 as deleted.
Frequently asked questions
Is Section 166 of the Indian Evidence Act still in force?
No. The Indian Evidence Act, 1872 was repealed from 1 July 2024 by the Bharatiya Sakshya Adhiniyam, 2023, subject to the savings provision in section 170.
What is the corresponding BSA section for old Evidence Act Section 166?
There is no corresponding section. The provision about jury or assessors asking questions was omitted from the Bharatiya Sakshya Adhiniyam, 2023.
Can a judge question witnesses under the current evidence law?
Yes. Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the judge's power to put questions or order production, subject to statutory safeguards.
Legal information only. Applicability in a particular proceeding depends on commencement, savings provisions and the governing procedural law.