Notice to Produce a Document under Section 64 of the Bharatiya Sakshya Adhiniyam, 2023: Requirement, Exceptions and Consequences

A party who needs a document held by his opponent cannot simply assert that it exists and produce a copy. Section 64 requires him to call for the original first. The provision is short, its six exceptions are wide, and it is treated as a formality — which is a mistake, because a notice properly served produces three distinct advantages, and the two companion provisions in Sections 166 and 167 turn the exercise into something considerably more useful than a procedural step.

1. The Provision

Section 64 corresponds to Section 66 of the Indian Evidence Act and is carried forward unchanged.

2. When a Notice Is Needed

The requirement attaches to one ground only, and this is the single most useful thing to know about the section.

Ground (a) is the only one of the seven grounds in Section 60 that carries a notice requirement. A party relying on loss or destruction under ground (c), on the document being not easily movable under ground (d), on a public document under ground (e), on a certified copy permitted by law under ground (f), or on numerous accounts under ground (g) need give no notice whatever.

3. Form, Service and Timing

The section prescribes no form. It requires notice as is prescribed by law, and where no law prescribes it, such notice as the Court considers reasonable in the circumstances.

In civil proceedings the machinery is supplied by the Code of Civil Procedure, 1908. Order XI provides for discovery and inspection and for notice to produce documents referred to in pleadings or affidavits. Order XII Rule 8 provides for notice to produce documents, requiring production at the hearing. Where such a rule applies, it is the prescribed law and should be followed.

In criminal proceedings the corresponding compulsive machinery is the summons to produce a document under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which corresponds to Section 91 of the Code of Criminal Procedure, 1973. This is a stronger instrument than a notice, because it is an order of the court rather than a request by a party.

Three practical matters recur.

On whom. The section permits service on the party in whose possession or power the document is, or on his advocate or pleader. Service on the advocate is sufficient and is the ordinary course once a proceeding is on foot.

What it must say. The document should be described with enough particularity for the recipient to identify it. A notice calling for 'all documents relating to the transaction' is not a notice to produce a document; it is a request for discovery, and it invites the answer that nothing identifiable was called for.

When. The notice must be given previously — before the secondary evidence is tendered — and it must allow a reasonable time. What is reasonable depends on the document, its location and the stage of the proceeding, and the court decides where no rule prescribes.

4. The Six Exceptions

The proviso dispenses with notice in six enumerated cases, and in any other case in which the Court thinks fit. The closing words are frequently overlooked and confer a general discretion.

4.1 The document is itself a notice

Where what is to be proved is a notice — a notice to quit, a notice of demand, a statutory notice — no further notice is required. The reason is obvious: a person served with a notice knows of its existence and its terms, and requiring notice to produce a notice would be circular.

4.2 The adverse party must know he will be required to produce it

This is the widest of the six and the one most often relied on. Where the nature of the case makes it plain that a document will be required — the agreement sued upon, the receipt whose existence is the whole issue, the letter the defence is founded on — the adverse party is on notice by the pleadings themselves.

The exception is not unlimited. What must be shown is that the party must know, not merely that he might have guessed. Where the document is one of many, or where its relevance emerges only during the trial, the exception is harder to invoke.

4.3 Possession obtained by fraud or force

Where the adverse party got the original by fraud or force, requiring the injured party to ask him politely for it would be an absurdity. The exception requires the fraud or force to appear or be proved, which is a question of fact.

4.4 The original is in court

Where the adverse party or his agent has the document in court, the object of a notice has been achieved, and the court may simply call for it.

4.5 Admitted loss

Where the adverse party has admitted that the document is lost, notice would be pointless. Note the interaction with the grounds: an admission of loss by the party in possession will ordinarily also bring the case within ground (c) of Section 60, which requires no notice in any event.

4.6 The holder is out of reach

Where the person in possession is beyond the process of the court — abroad, or otherwise not amenable — no notice is required. Ground (a) itself contemplates such a person, and the exception recognises that a notice to somebody the court cannot compel achieves nothing.

5. What Follows from Non-Production

Where notice is served and the document is not produced, three consequences follow, and they should be pressed together.

First, secondary evidence becomes admissible. Ground (a) of Section 60 is satisfied, and under that ground any kind of secondary evidence of the contents may be given — a copy, a compared copy, an oral account by a person who has seen the document.

Second, an adverse inference becomes available. Under Illustration (g) to Section 119 the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This is frequently worth more than the secondary evidence, because it operates on the substance of the case rather than merely on the mode of proof.

Third, the party who refused is shut out. This is the consequence least often invoked and it is a considerable one.

Section 167 corresponds to Section 164 of the Indian Evidence Act. A party who withholds a document when called for cannot spring it later — he needs the consent of the opposite party or the leave of the court. The provision prevents the tactic of suppressing a document until the other side has committed itself and then producing it in cross-examination or in rebuttal.

6. What Follows from Production

A notice may succeed, and success carries its own consequence, which a party calling for a document should consider before he serves the notice.

Section 166 corresponds to Section 163 of the Indian Evidence Act, and its effect is significant. A party who calls for a document, receives it and inspects it may be compelled by the producing party to put it in evidence — whatever it turns out to contain.

The rule reflects a principle of fairness. A party who compels production has used the court's machinery to look at his opponent's document; he should not be permitted to take the benefit of the exercise and discard the result because it did not suit him.

7. The Three Provisions Together

Read together, the three provisions constitute a small self-contained regime. A notice forces a choice on the recipient: produce the document and risk it going in against him, or refuse and be shut out from using it while an inference runs against him. Neither choice is comfortable, which is why a notice is a more powerful instrument than its brevity suggests.

8. Electronic Records

Section 64 applies to electronic records as to any other document, and the notice route is frequently the most practical answer to a recurring difficulty.

Where the record is on the opponent's device or in his account, the party seeking to prove it can neither produce the device nor obtain a certificate under Section 63(4) from the person in charge — because that person is his opponent. Three steps are available and should be taken together.

1. Serve notice to produce under Section 64. Non-production establishes ground (a) of Section 60 and opens the inference under Section 119.
2. Apply to compel production. On the authority of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, where a party cannot obtain a certificate because the device or system is in another's control, the court may compel production. The application should name the custodian.
3. Rely on Explanation 3 to Section 57 where possible. An electronic record is almost always stored in more than one file, and the party's own copy of a communication is primary evidence in its own right. In a communication between two persons there is no single original, and a party frequently does not need the opponent's device at all.

The third step is the one most often overlooked. A notice to produce is a route to secondary evidence; Explanation 3 avoids the need for secondary evidence altogether.

9. Practical Points

1. Serve the notice early, so that the document can be produced in time to be dealt with, and so that reasonableness cannot be disputed.
2. Describe the document specifically. A general call for documents relating to a subject is not a notice to produce.
3. Serve it on the advocate once the proceeding is on foot, which the section permits.
4. Keep proof of service, since the fact of notice is what must be proved before secondary evidence is received.
5. Consider Section 166 before inspecting. If the document is produced, inspection may bind you to tender it.
6. Press all three consequences of non-production — admissibility of secondary evidence, the adverse inference, and the bar in Section 167.
7. Check whether notice is needed at all. If the ground relied upon is loss, a public document or a certified copy, no notice is required and serving one wastes time.

10. The Position Stated Shortly

1. Section 64 attaches to ground (a) of Section 60 alone, and no notice is required for loss, immovability, public documents, certified copies or numerous accounts.
2. Notice does not create the right to secondary evidence. The party must still show the original is in the possession or power of the person served.
3. No form is prescribed, and where no law prescribes one the court decides what is reasonable.
4. Service on the advocate is sufficient.
5. Six exceptions dispense with notice, and the court may dispense with it in any other case it thinks fit.
6. Non-production produces three consequences — secondary evidence, an adverse inference under Illustration (g) to Section 119, and the bar in Section 167.
7. Production carries a risk. Under Section 166 a party who inspects may be compelled to tender the document.
8. For electronic records, Explanation 3 to Section 57 is frequently a better route, since a party's own copy of a communication is primary evidence.

11. Related Topics and Provisions