Production of Documents under Sections 165 to 167 of the Bharatiya Sakshya Adhiniyam, 2023

Three sections close the examination-of-witnesses chapter by dealing with paper rather than testimony. The first compels a summoned witness to bring the document whatever objection he has, and hands the objection to the court. The second and third govern what happens when a party calls for a document from his opponent: if it is produced and inspected he may be forced to tender it, and if it is withheld he may never use it. Together they make a notice to produce a more powerful instrument than its brevity suggests.

1. Section 165 — Bring It Anyway

Section 165 corresponds to Section 162 of the Indian Evidence Act. Its structure resolves a difficulty that would otherwise be intractable: how can a court rule on an objection to producing a document without seeing whether the objection is good, and how can it see that without the document being produced?

The answer is a separation of functions.

1.1 The matters-of-State exception

The court may inspect unless the document refers to matters of State. The exception connects directly to Section 129, under which no one shall be permitted to give evidence derived from unpublished official records relating to any affairs of State except with the permission of the head of the department.

The apparent effect is that the court is disabled from inspecting the very document it must rule upon. The position has been developed by the decisions on Section 129, and the working rule is that the claim of privilege must be made properly and on material, that the court decides whether disclosure would injure the public interest, and that it may examine the claim even where it does not examine the document. The reasoning in State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428 — that the foundation of the privilege is injury to the public interest, and that the question is for the court — governs.

1.2 The privileges are preserved

Section 165 compels production; it does not abolish privilege. The document is brought to court so that the objection may be decided, and where the objection is good the document is not received. The privileges in Sections 129 to 136 — affairs of State, official communications, informer identity, professional communications, title-deeds of a non-party, and documents a third person could refuse to produce — all survive, and Section 168 expressly preserves them against the judge's own power to order production.

1.3 Translation and secrecy

The third limb is a small but practical provision. Where a document must be translated in order to decide the objection, the court may direct the translator to keep the contents secret unless the document is to be given in evidence — and disobedience is an offence. The provision exists because a ruling that a document is privileged would be worthless if its contents had meanwhile been disseminated by the person translating it.

2. Section 166 — Produced and Inspected

Section 166 corresponds to Section 163 of the Indian Evidence Act, and it operates as a trap for the unwary.

Four elements must coincide before the obligation arises.

1. A notice to produce must have been given under Section 64.
2. The party must have called for the document.
3. It must have been produced by the other party.
4. It must have been inspected by the party who called for it. This is the trigger.

Where all four are present, the producing party may require the calling party to tender the document — and he is bound to do so, whatever it turns out to contain.

The principle underlying the section is one of fairness. A party who has used the court's machinery to compel his opponent to open his files should not be permitted to take the benefit of the exercise and discard the result because it did not suit him. He called for the document; he has seen it; it goes in if the other side wants it in.

3. Section 167 — Refused on Notice

Section 167 corresponds to Section 164 of the Indian Evidence Act and closes the other half of the circle.

The mischief it prevents is a recognisable tactic: withholding a document when it is called for, allowing the other side to commit itself to a case framed in ignorance of it, and then producing it in cross-examination or in rebuttal for maximum effect. Section 167 shuts that off. A party who refuses production forfeits the document, and may use it afterwards only with consent or leave.

Two points of scope are worth noting. The section requires a refusal, which presupposes that the document was in his possession or power and that he declined to produce it — an inability to produce is a different matter. And the bar is not absolute: the court may permit its use, and would ordinarily consider why it was withheld and what prejudice its late production would cause.

4. The Notice to Produce — The Whole Machinery

Sections 166 and 167 are the tail of a scheme that begins in a different chapter, and the provisions are best seen together.

Read together, a notice to produce forces a choice on the recipient, and neither branch is comfortable.

If he produces, the document is available to the other side, and if that side inspects it, it may be compelled onto the record.

If he refuses, four things follow at once: secondary evidence of the contents becomes admissible; a mandatory presumption arises under Section 91 that the document was duly attested, stamped and executed; an adverse inference becomes available under Illustration (g) to Section 119; and he is barred from using the document himself under Section 167.

5. Section 165 Compared with Sections 166 and 167

The difference reflects who is being addressed. A witness is an officer of the process and must obey it; his protection is that the court decides his objection. A party is an adversary and cannot be compelled to arm his opponent; his protection is that he may refuse, and his penalty is that refusal costs him a great deal.

6. Electronic Records

The chapter was drafted for paper and applies to electronic records with two adjustments worth noting.

Section 136 now extends expressly to electronic records, providing that no one shall be compelled to produce documents or electronic records in his possession, or electronic records under his control, which any other person would be entitled to refuse to produce. A privileged communication held on a server or a device in a third party's custody is therefore within the protection, and only the owner's consent releases it.

A notice to produce is frequently the wrong route for an electronic record, and the point is easily missed. Where the record is on the opponent's device or in his account, Explanation 3 to Section 57 is often a better answer: 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 the party may not need the opponent's device at all.

Where he does, the three steps are to serve notice under Section 64, to apply to compel production on the authority of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, and to rely on Explanation 3 in the alternative.

7. Practical Points

1. Advise a summoned witness to attend and produce, stating his objection. Staying away or attending empty-handed is disobedience, not a claim of privilege.
2. Where privilege is claimed, identify the section — one of Sections 129 to 136 — and let the court decide.
3. Where the claim is under Section 129, be ready with material. The court decides whether disclosure would injure the public interest, and a bare assertion is not enough.
4. Before inspecting a document produced on your notice, consider Section 166. Inspection may bind you to tender it.
5. Where the opponent refuses, press all four consequences — secondary evidence, Section 91, the adverse inference, and the Section 167 bar.
6. Establish that the document is in his possession or power. Non-production by somebody who does not have it proves nothing.
7. For electronic records, consider Explanation 3 to Section 57 first, since your own copy may be primary evidence.

8. The Position Stated Shortly

1. Section 165 requires a summoned witness to bring the document notwithstanding any objection, and hands the objection to the court.
2. The court may inspect to decide — except where the document refers to matters of State.
3. A translator may be directed to keep the contents secret, and disobedience is an offence.
4. Section 166 binds a party who inspects a document produced on his notice to tender it if the producing party requires.
5. Inspection is the trigger, so the decision to inspect should be taken deliberately.
6. Section 167 bars a party who refused production from afterwards using the document without consent or leave.
7. Non-production after notice produces four consequences — secondary evidence, the Section 91 presumption, the adverse inference, and the Section 167 bar.
8. Section 136 now covers electronic records, and Explanation 3 to Section 57 is often a better route than a notice.

9. Related Topics and Provisions