Section 164 Evidence Act: Refusal to Produce a Document on Notice

The rule formerly found in Section 164 of the Indian Evidence Act, 1872 now appears in Section 167 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). It restricts a party who refused to produce a document after notice from later relying on that document without consent or permission of the court.

What Section 167 of the Bharatiya Sakshya Adhiniyam says

Read the enacted text in the official India Code PDF of the Bharatiya Sakshya Adhiniyam, 2023 (Chapter X, Section 167).

Meaning and purpose of the provision

The provision discourages selective withholding of documents. A litigant who receives notice to produce a document and refuses cannot later introduce the same document as evidence merely because doing so becomes advantageous. The rule protects procedural fairness and avoids surprise at trial.

When does the restriction apply?

The essential circumstances are that a party has been given notice to produce a document, refuses to produce it, and subsequently attempts to use that document in evidence. The restriction is not necessarily permanent: the opposing party may consent, or the court may authorize its later use.

Does the court have discretion?

Yes. Section 167 expressly allows use of the document by order of the court. Whether permission should be granted depends on the circumstances and applicable procedural and evidentiary requirements. The provision does not itself make an otherwise inadmissible document admissible.

Statutory illustration explained

The Act gives an illustration involving A, who sues B on an agreement. A gives B notice to produce the agreement. B refuses at trial, so A offers secondary evidence of its contents. B then attempts to produce the original agreement to contradict that secondary evidence or to show that the agreement is unstamped. The illustration establishes that B cannot use the original in that way after refusing production, unless the statutory exception applies.

Importantly, the illustration concerns the consequences of refusing to produce the agreement; it does not independently resolve all questions of stamping, proof or admissibility.

Related provisions on production and secondary evidence

Section 166 BSA deals with a document produced and inspected after notice: if the producing party requires it, the party calling for production must give it in evidence. Section 165 BSA addresses the duty of a summoned witness to bring a document to court, with objections to production or admissibility decided by the court. Section 168 BSA addresses the judge's power to ask questions and order production, subject to statutory limits.

Sections 60 and 64 BSA are also relevant when a party seeks secondary evidence because an original document in another person's possession or power has not been produced after the requisite notice. The requirements of those sections must be independently satisfied; refusal does not automatically prove the contents of a document.

Practical points for litigants and lawyers

Preserve the notice to produce and evidence of its service. Record any refusal clearly in the proceedings. If the original is withheld, assess whether secondary evidence is permissible under the BSA and whether a separate foundation for its admission is needed. A party who previously refused production should seek the opponent's consent or a court order before attempting to rely on the document.

Frequently asked questions

Official legal reference

Bharatiya Sakshya Adhiniyam, 2023 - India Code (official legislation PDF). Consult Sections 60, 64, 165, 166, 167, 168 and 170 for related rules and transition provisions.

This article provides general legal information. The applicable law and procedure depend on the case and the date proceedings began.