Section 162 BSA 2023: Refreshing Memory by a Witness
Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) permits a witness, while under examination, to refresh memory from certain writings. It also permits use of a copy with the Court's permission in appropriate cases and allows an expert to refer to professional treatises.
Text of Section 162 - Refreshing memory
162. (1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:
Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
(2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
Provided further that an expert may refresh his memory by reference to professional treatises.
Meaning and scope of Section 162 BSA
The provision deals with a practical problem in witness examination: a witness may remember an event generally but may not recall every detail when giving evidence. Section 162 allows the witness to consult an eligible writing so that the witness can refresh memory before answering questions.
The section does not make every document automatically usable for this purpose. The writing must fall within the conditions laid down by the provision, and the Court continues to control the process of recording evidence.
1. Writing made by the witness
A witness may refer to a writing made by the witness at the time of the transaction in question, or so soon afterwards that the Court considers the event was then fresh in the witness's memory.
2. Writing made by another person
The witness may also refer to a writing made by another person if the witness read it within the relevant period and, when it was read, knew it to be correct.
3. Use of a copy instead of the original
If a witness is entitled to refresh memory from a document, the witness may, with permission of the Court, use a copy. The Court must be satisfied that there is sufficient reason for non-production of the original.
4. Experts and professional treatises
An expert witness may refresh memory by referring to professional treatises. This expressly recognises the specialised reference material that may be relevant when an expert gives evidence.
Key conditions under Section 162
- The person must be a witness under examination.
- The writing should have been made at the time of the relevant transaction or sufficiently soon afterwards while the transaction was fresh in memory.
- A writing made by another person may be used only where the witness read it within the relevant period and then knew it to be correct.
- A copy may be referred to only with permission of the Court and where sufficient reason exists for non-production of the original.
- An expert may refresh memory from professional treatises.
Section 162 BSA and the old Evidence Act
Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 corresponds to Section 159 of the Indian Evidence Act, 1872. The subject remains "refreshing memory," but references in current proceedings governed by the BSA should use the new section number.