Section 164 BSA 2023 - Right of Adverse Party as to Writing Used to Refresh Memory

Section 164 of the Bharatiya Sakshya Adhiniyam, 2023 protects the opposing party when a witness relies on a writing connected with refreshing memory. If a writing is referred to under Sections 162 or 163, the adverse party may require that writing to be produced and shown to it and may cross-examine the witness on that writing.

Applicable law: The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023) came into force on 1 July 2024.

Text of Section 164 of the Bharatiya Sakshya Adhiniyam, 2023

164. Right of adverse party as to writing used to refresh memory. Any writing referred to under the provisions of the two last preceding sections shall be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

Meaning and Scope of Section 164 BSA

Section 164 operates together with Section 162 and Section 163. Those provisions deal with a witness refreshing memory from a writing and giving testimony about facts recorded in a document. Section 164 ensures procedural fairness by giving the adverse party access to the writing relied on for that purpose.

Rights of the Adverse Party

The writing referred to under Sections 162 or 163 must be produced if the adverse party requires it.
The writing must be shown to the adverse party.
The adverse party may cross-examine the witness in relation to that writing.
The provision helps the opposing party test the accuracy, reliability, context and basis of the witness's refreshed recollection.

Why Section 164 Is Important

A witness who uses a writing to refresh memory may be relying on a record made earlier, rather than on present unaided recollection. Section 164 therefore gives the opposite party an opportunity to examine the same material and challenge the witness on matters such as authorship, timing, accuracy, alterations, completeness and the circumstances in which the writing was made or used.

The section does not by itself make every writing used to refresh memory substantive evidence. Its principal function is to secure disclosure of the writing to the adverse party and preserve the right of effective cross-examination where Sections 162 or 163 are invoked.

Connection with Sections 162 and 163

Section 162 BSA governs refreshing memory by reference to certain writings. Section 163 BSA permits testimony to facts stated in a document mentioned in Section 162 in specified circumstances. Section 164 then gives the adverse party the right to see the writing and cross-examine the witness on it.

Official Source

For the authoritative statutory text, see the Bharatiya Sakshya Adhiniyam, 2023 on India Code.