Sections 161, 162 and 163 of the Indian Evidence Act, 1872: Refreshing Memory and Production of Documents
Sections 161, 162 and 163 form part of the procedural rules governing documents in evidence. They protect the adverse party when a witness uses a writing to refresh memory, require a summoned witness to bring a document to Court even where production or admissibility is disputed, and regulate the evidentiary consequence of inspecting a document produced after notice.
Section 161: Right of adverse party as to writing used to refresh memory
Meaning: Section 161 safeguards cross-examination when a witness relies on a writing under the preceding provisions relating to refreshing memory. If the adverse party requires it, the writing must be produced and shown to that party, who may cross-examine the witness about it.
Statutory rule
The provision therefore connects directly with Sections 159 and 160 on refreshing memory and testimony to facts recorded in documents. The purpose is procedural fairness: reliance on a writing to assist memory is accompanied by a right of inspection and cross-examination for the opposing side.
Section 162: Production of documents
Meaning: Section 162 separates the obligation to bring a summoned document to Court from the Court's decision on whether the document may ultimately be produced or admitted in evidence.
Duty of a summoned witness
The witness cannot ordinarily withhold the document merely because an objection is asserted. The Court decides the validity of the objection.
Court inspection and matters of State
The Court may inspect the document, if it considers inspection appropriate, or take other evidence to decide admissibility. The section expressly excludes Court inspection where the document refers to matters of State.
Translation and secrecy
Where translation is necessary for deciding admissibility, the Court may direct the translator to keep the contents secret unless the document is to be given in evidence. Under the pre-BSA text of Section 162, disobedience by the interpreter was linked to an offence under Section 166 of the Indian Penal Code, 1860.
Section 163: Giving as evidence a document called for and produced on notice
Meaning: Section 163 deals with a party who has given notice requiring the other side to produce a document and then inspects that document after production.
The statutory consequence is triggered by the combination of notice, production and inspection. Once those conditions are met, the party who called for and inspected the document may be required by the producing party to put it in evidence.
How Sections 161, 162 and 163 operate
Although all three provisions concern writings or documents, they address different procedural situations. Section 161 protects the adverse party where a witness uses a writing to refresh memory. Section 162 governs the obligation to bring a summoned document before the Court and leaves objections to production or admissibility for judicial determination. Section 163 addresses the consequence of calling for, obtaining and inspecting a document after notice.
Read together with the surrounding provisions, these sections help regulate inspection, cross-examination, production and use of documentary material during judicial proceedings under the Indian Evidence Act, 1872.