Notice to Produce Documents: Section 64 BSA and Section 66 Evidence Act
A notice to produce is a formal request requiring a person holding an original document to produce it for use in legal proceedings. Where a party relies on the other side's failure to produce an original, notice is generally a prerequisite to introducing secondary evidence, subject to statutory exceptions.
Section 64 of the Bharatiya Sakshya Adhiniyam, 2023
Heading: Rules as to notice to produce. Section 64 governs secondary evidence under Section 60(a) of the BSA. Ordinarily, before offering secondary evidence of a document held by another person, the party must give notice to the holder or their advocate or representative. The notice must comply with any applicable legal prescription; otherwise it must be reasonable in the circumstances as assessed by the court.
The notice requirement does not itself prove a document or guarantee that a copy will be admitted. The party relying on secondary evidence must still establish the relevant statutory foundation, authenticity and other applicable evidentiary requirements.
Six exceptions when notice is not required
The proviso to Section 64 identifies six situations in which notice need not be given to make secondary evidence admissible:
- The document is itself a notice. The very document sought to be proved is a notice.
- Production is already expected. The nature of the case makes it clear that the adverse party must know the original will be required.
- Fraud or force. The adverse party obtained possession of the original by fraud or force.
- Original already in court. The adverse party or their agent has the original document in court.
- Loss admitted. The adverse party or their agent admits that the document has been lost.
- Beyond court process. The person possessing the document is outside the reach of, or not subject to, the court's process.
Additional discretion: The proviso also allows the court to dispense with notice in any other case it considers fit. This is not an automatic exemption and depends on the circumstances.
Former Section 66 of the Indian Evidence Act, 1872
Section 66 was titled Rules as to notice to produce. It provided that secondary evidence of documents covered by Section 65(a) could not ordinarily be given without prior notice to the party possessing the original or to that party's attorney or pleader. If law prescribed a notice, that requirement applied; otherwise the court determined what notice was reasonable.
Its proviso contained the same six categories of exceptions described above, together with the court's power to dispense with notice in other appropriate cases. The original text included the historical editorial footnote: "or to his attorney or pleader" was inserted by Act 18 of 1872, section 6.
How notice to produce works in practice
- Identify the original: Describe the document clearly, including its date, parties and subject matter where known.
- Identify the holder: Establish why the original is believed to be in the possession or power of the other party or relevant person.
- Serve reasonable notice: Use the form and period required by applicable procedural law or court directions; where none is prescribed, allow reasonable time.
- Preserve proof of service: Keep the notice and reliable evidence of delivery.
- Address non-production: If the original is not produced, explain the statutory basis for relying on secondary evidence, including compliance with notice requirements or an exception.
Related legal provisions
Section 60 BSA: Specifies the circumstances in which secondary evidence of documents may be given. Clause (a) covers originals held by another person and links expressly to the notice rule in Section 64.
Sections 57 to 59 BSA: Address primary evidence, secondary evidence and proof of documents by primary evidence. Sections 61 to 63 BSA concern electronic or digital records and their admissibility, which may require additional compliance beyond a notice to produce.
Section 170 BSA: Repeals the Indian Evidence Act, 1872, with a savings provision for specified proceedings pending immediately before commencement. The applicable regime should therefore be checked against the commencement date and procedural history.
Frequently asked questions
Is notice to produce compulsory in every case?
No. The requirement principally applies to secondary evidence under Section 60(a) BSA, and Section 64 lists six express exceptions and permits further dispensation by the court.
Does failure to produce the original automatically prove a photocopy?
No. Failure to produce after appropriate notice may support the use of secondary evidence, but it does not automatically establish authenticity, execution or truth of the document's contents.
Which section replaces Section 66 of the Evidence Act?
Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 is the corresponding provision under the current legislation.
Official statutory sources
Read the Bharatiya Sakshya Adhiniyam, 2023 (India Code official PDF) and the Bureau of Police Research and Development's official new criminal laws resource page for the enacted text and implementation resources.