Refreshing Memory Under Section 162 BSA and Section 159 Evidence Act
A witness may need to consult a contemporaneous note or other permitted writing to recall details accurately while giving evidence. This is called refreshing memory. The present provision is Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA); the corresponding earlier provision was Section 159 of the Indian Evidence Act, 1872.
What does refreshing memory mean?
Refreshing memory is the process by which a witness, while under examination, refers to an eligible writing to assist recollection of a transaction. The writing must satisfy the statutory conditions; it is not an unrestricted right to read from any document.
Section 162 BSA: legal requirements
1. Writing made by the witness
Under Section 162(1), a witness may refer to a writing made by the witness at the time of the transaction in question or sufficiently soon afterwards that the Court considers the transaction was likely still fresh in memory.
2. Writing made by another person
The witness may also refer to another person's writing if the witness read it within the required period and knew it to be correct when reading it. This is subject to the statutory conditions.
3. Using a copy instead of the original
Section 162(2) permits reference to a copy with the Court's permission, provided the Court is satisfied that sufficient reason exists for non-production of the original.
4. Expert witnesses
The further proviso permits an expert to refresh memory by reference to professional treatises.
Section 159 of the Indian Evidence Act, 1872
Section 159 of the former Act contained the same core rules: contemporaneous writings made by the witness, qualifying writings of another person, copies with permission and adequate explanation for the missing original, and professional treatises for experts. It remains important when interpreting older judgments and proceedings governed by the savings provisions.
Related provisions: Sections 163 and 164 BSA
Section 163 (corresponding to former Section 160) allows a witness to testify to facts recorded in a document referred to under Section 162 even without specific present recollection, if the witness is sure the facts were correctly recorded. This is distinct from actually recovering a memory by consulting a writing.
Section 164 (corresponding to former Section 161) gives the adverse party the right, on request, to see the writing used under the preceding two sections and to cross-examine the witness about it.
Practical examples
Contemporaneous record: A witness who recorded delivery details immediately after a transaction may, if the statutory requirements are satisfied, consult that record during examination.
Document prepared by a colleague: A witness may refer to a colleague's note if the witness read it when the event was fresh and knew it was correct at that time.
Expert testimony: A medical or technical expert may consult an appropriate professional treatise to refresh memory, subject to the applicable rules of examination.
Important points for court proceedings
- The Court assesses whether the writing meets the timing and reliability conditions.
- Use of a copy requires permission and sufficient reason for non-production of the original.
- The opposing party may request production of the writing and cross-examine on it under Section 164.
- Consulting a writing to refresh memory does not automatically prove every statement contained in that writing.
Frequently asked questions
Which section governs refreshing memory in India now?
Section 162 of the Bharatiya Sakshya Adhiniyam, 2023, subject to the Act's commencement and savings provisions.
Can a witness use another person's notes?
Yes, if the witness read them while the matter was fresh and knew them to be correct at that time, as required by Section 162(1).
Can a photocopy be used?
With the Court's permission and a sufficient reason for not producing the original, under Section 162(2).
Can the opposing lawyer inspect the writing?
Yes. Section 164 provides for production and inspection on request, as well as cross-examination about the writing.
Official legislation and references
Read the official Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF) and the India Code Act record. The Bureau of Police Research and Development also provides official resources on the new criminal laws.
This article is general legal information and not a substitute for advice on a particular case.