Section 161 of the Indian Evidence Act and Section 164 BSA: Right of Adverse Party as to Writing Used to Refresh Memory
When a witness relies on a written record to refresh memory while giving evidence, the opposing party has a statutory right to see the writing and cross-examine the witness about it. The former Section 161 of the Indian Evidence Act, 1872 is now substantially continued in Section 164 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
1. Text of former Section 161, Indian Evidence Act, 1872
Heading: Right of adverse party as to writing used to refresh memory.
Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.
This provision referred to Sections 159 and 160 of the Indian Evidence Act, concerning refreshing memory and testimony based on facts recorded in a document.
2. Current law: Section 164, Bharatiya Sakshya Adhiniyam, 2023
Heading: 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.
The current section refers to Section 162 (Refreshing memory) and Section 163 (Testimony to facts stated in document mentioned in section 162) of the BSA. The central safeguard remains the same: a witness cannot rely on a writing to support recollection without allowing the adverse party to inspect it when requested.
Official statutory source: Bharatiya Sakshya Adhiniyam, 2023 - India Code (PDF).
3. Meaning and scope of the right
- Adverse party: The party opposing the witness's side in the proceeding, entitled to test the evidence through cross-examination.
- Writing used to refresh memory: A document or record consulted by a witness under the applicable statutory rules to assist recollection of relevant facts.
- Production and inspection: When the statutory conditions apply and the adverse party requests the writing, it must be produced and shown to that party.
- Cross-examination: The adverse party may question the witness on the writing, including the circumstances of its preparation, its accuracy and any inconsistencies with oral testimony.
The right relates to writings referred to under the preceding memory-refreshing provisions. It is not an unrestricted right to demand every document possessed by a witness, and questions of privilege or other statutory restrictions must be addressed under the applicable law.
4. How the provision operates in court
For example, suppose an accounts witness consults a contemporaneous ledger entry to recall a transaction date. If the witness relies on that entry under Section 162 or 163 BSA, the opposite party may ask to inspect the relevant writing and cross-examine the witness about its date, authorship, completeness and reliability. The court assesses the evidence under the ordinary rules of admissibility and proof.
5. Police case diaries: Section 192 BNSS
The former Section 161 carried a note referring to Section 172 of the Code of Criminal Procedure, 1973, concerning police diaries. The corresponding current provision is Section 192 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Under Section 192(4), a criminal court may call for case diaries and use them to assist an inquiry or trial, but not as evidence in the case. Section 192(5) generally prevents an accused or the accused's agents from demanding or inspecting police diaries merely because the court refers to them. However, if the investigating police officer uses the diary to refresh memory, or the court uses it to contradict that officer, the applicable protections under Sections 164 or 148 BSA, as the case may be, operate.
Official statutory source: Bharatiya Nagarik Suraksha Sanhita, 2023 - Bureau of Police Research and Development (PDF).
6. Related provisions
- Section 162 BSA: Refreshing memory by reference to qualifying records.
- Section 163 BSA: Testimony concerning facts recorded in a qualifying document, even without specific present recollection, subject to statutory conditions.
- Section 164 BSA: Inspection of such writing by the adverse party and cross-examination on it.
- Section 148 BSA: Cross-examination as to previous statements in writing.
- Section 165 BSA: Production of documents.
- Section 192 BNSS: Diary of proceedings in investigation, including limited rules governing its use in court.
7. Frequently asked questions
Is Section 161 of the Indian Evidence Act still the current provision?
No. The Indian Evidence Act, 1872 has been repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023 from 1 July 2024, subject to statutory savings for qualifying pending proceedings. The corresponding current provision is Section 164 BSA.
Can the opposite party cross-examine a witness on a document used to refresh memory?
Yes. Section 164 BSA expressly permits the adverse party to inspect the writing on request and, if it chooses, cross-examine the witness upon it.
Does Section 164 BSA give unrestricted access to a police case diary?
No. Section 192 BNSS imposes specific limits on access to case diaries, with defined exceptions when a police officer uses the diary to refresh memory or the court uses it to contradict the officer.
8. Conclusion
Section 164 BSA protects fairness in witness examination by allowing the adverse party to inspect and test writings relied on to refresh memory. Former Section 161 of the Indian Evidence Act remains relevant to the interpretation of the corresponding provision and to proceedings governed by applicable savings rules. For police case diaries, the specific safeguards and restrictions in Section 192 BNSS must also be considered.
Legal information only. Applicability to a particular proceeding depends on the relevant statute, transitional provisions and court orders.