Report No. 69

Chapter 93

Production of Documents

Section 162

93.1. Introductory.-

Documents must be brought before the Court before they can be used for various evidentiary purposes. Certain matters concerning the production of documents are dealt with in section 162. The section comprises four matters-

(a) The duty of a person who is summoned to produce a document, to bring it into court;

(b) The power of the court to decide objections to its production (in evidence) or admissibility;

(c) The procedure to be followed for the purpose of exercising the power referred to at (b) above; and

(d) The translation of the document.

93.2. Duty to bring into court.-

As regards the first topic1, it should be noted that there is a distinction between bringing the document in court and its production in evidence. When a person is summoned to "produce" a document-the expression "production" is also used in the two procedural Codes-that person must bring it into court. This simple and elementary provision really gives rise to the important implication that even if a person has an objection to handing over the document for use in evidence, he must bring it into court. The physical production of the document is obligatory.

Whether the objection to its legal production is on the ground that the document has no relevance to the suit or proceeding-an objection usually taken by a party to the protected from disclosure or whether it is on the ground that the document, though relevant, is inadmissible by virtue of a statutory bar, it is not for the person summoned to determine that objection for himself. Only the Court will decide the objection to production in this sense. Production in the physical sense is mandatory on the person called upon to do so by the Court.

1. Para. 93.1, Supra.

93.3. Significance "possession power".-

Even as regards physical production in the sense explained above, difficult questions could sometimes arise, where a witness who is summoned to produce a document raises the objection that the document is not in his power. In this context, the crucial words are-"Possession or power". Where the witness is exclusively in control of the document and some one else claims control over it, no difficulty could arise by reason of the first part of section 162. But difficulty may arise when the witness is in joint possession with somebody else, who is not before the court.

In such a case, in deciding whether the witness ought to be compelled to "produce" the document, normally the court will act on what is considered to be just in the circumstances. This aspect came up for consideration in a Bombay case1. On a review of English cases, it was observed that this matter would depend on whether the defendant, physically speaking, could produce this document and, legally speaking, ought to produce it, there being no other person having interest distinct from the defendant.

1. Haji Jaharia Kassim v. Haji Casim, 1876 ILR 1 Born 496 (499) (Bargest, J.).

93.4. Test of Control.-

It is obvious1-2 that a witness cannot be compelled to produce a document by a summons, unless such document is under his control or possession. So a mere clerk in a bank is under no obligation to produce its books when they are under the control of the cashier, nor can the secretary of a railway company, as he was only the employee of the directors,3 nor are documents filed in a public office so in the "possession" of a clerk there, as to render it necessary, or even allowable, for him to bring them into court without the permission of the head of the office.4

This is not because of any question of State privilege, but because of the fact that the possession or power is in the head of the office. But one having the actual custody of documents may be compelled to "produce" them even though the document is owned by others5-that is to say-he must bring it into court, and then raise the question of privilege regarding its production in evidence-where such privilege exists under section 131.

1. Case law taken from Woodroffe.

2 Bank of Utica v. Hillard, 5 Cow 154 (Amer.); Ltnited States Exp. Co. v. Henderson, 69 Town 40 (Amer) cited in Woodroffe.

3. Crowther v. Appleby, LR 9 CP 27.

4. Thornhill v. Thornhill, 2 J&W 347; Austin v. Evans, 2 M&Cr 450.

5. Amoy v. Long, 1 Camp 17: 9 East 473; Carsan v. Dubois, 1 Holt 239.

93.5. Privilege.-

Under the first part of section 162 then, the document must be brought into court. The production of 'the document in evidence will, under the second part, be excused where it has been declared to be privileged from disclosure under the Act-for example, where it is the third party's title-deed,1 (this is the present law)-or a confidential communication professionally made between a legal adviser and his client, or the like.2

1. Section 130.

2. Sections 126-127 and sections 121-131.

93.6. Court to decide objection.-

Only the court can decide the validity of the objection. This is, in fact, expressly laid down in the second part of the section. The scheme in this regard, so far as section 162 itself is concerned, creates no problems. A disharmony is, however, introduced by section 123 (affairs of State), the last part whereof gives power to the head of the department to give or withhold permission "as he thinks fit". The decision of the head of the department ought not to overrule the power of the court. We have discussed this aspect while considering section 123.1

The amendment which we are recommending2 in that section will remove the disharmony. The court's exclusive power of adjudicating upon objections to the production of documents will then have no exceptions, after the amendment recommended by us is carried out.

1. See discussion as to section 123.

2. This is the majority recommendation.

93.7. In order that the power of the Court to adjudicate upon matters of privilege (second part) can be properly exercised some machinery is needed. The third part of section 162, which has two branches, provides as follows

(i) The court may inspect the document unless it relates to "matters of State".

(ii) The court may take other evidence for enabling it to decide the objection.

Taking up the first branch, we cannot help observing that it introduces a serious anomaly, according to four, of us. This aspect has been discussed under section 123, but the important points may be reiterated. Having already emphasised the exclusive power of the court to decide the objection-(b) above-the section should have recognised the power of the court to inspect the, document without any exception. But the section creates an exception precisely where the exception may work injustice. We say so because the expression "matters of State" is a vague one, and if the power of inspection is excluded merely because it is claimed that the document relates to matters of State, then a very important, and almost indispensable, step for the exercise of the power would be taken out of the province of the court.

What the section gives with one hand would be taken away with another. If the claim to privilege made on the ground of matters of State or affairs of State cannot be effectively adjudicated by the court, then virtually it comes to this-that the application of the law is left not to the judicial tribunal, but to an executive officer-however high he may be-who is not subject to any check by the tribunal and who is not even called upon-on the literal text of the law-to give reasons for withholding production. This would be a negation of the basic postulate of the rule of law.

93.7A. Fortunately, the construction of the section has not developed upon these lines. .We have dealt with the case law in this regard in our consideration of section 123; the case law shows how the courts have felt constrained in the interests of justice to point out the need for leaving the ultimate decision to the court. It is unnecessary to repeat all that we have already stated; and at this state it is enough to repeat the view of four of us that the exception in section 162 for matters of State is unjustified and ought to be removed.

The assumption of the law is that it is unnecessary for the judge to have the right of inspecting any document of this character.1 But, even now, he must necessarily have such right in the case of other privileged documents in order that he may judge as to their admissibility and obligatory production in evidence.2 Our recommendation, subject to reservation by two of us-Shri Dhavan and Shri Sen-Verma as regards claims to privilege based on security of the State as to the first branch of the third part of section 162 is to remove the exception for documents relating to affairs of State.

1. Cunnigham Evidence, 380; in Woodroffe.

2. Woodroffe.

93.8. Other evidence.-

Under the second branch of the third part of the section, the court may also, in order to decide on the validity of the objection take other evidence to enable it to determine on its admissibility. All questions as to the admissibility of evidence are for the judge). Decision of such questions frequently depends on a disputed fact, in which case all the evidence adduced both to prove and disprove that disputed fact must be received by the judge, and however, complicated the facts or conflicting the evidence, such questions must be adjudicated on by him alone1.

Thus, the judge must equally (for example) decide whether a confession should be excluded by reason of some previous threat or promise and whether a document is protected from disclosure as being a confidential communication or the like.2 This branch is based on the above mentioned principle.

93.9. Translation.-

The last part of section 162 concerns the translation of documents, and needs no detailed comments.

93.10. Recommendation.-

In the result, the only change which we recommend in section 162 is the removal of the present exception regarding inspection by the court of documents relating to "matters of State"-a recommendation which is subject to reservation by two of us as already stated.

1. Taylor Evidence, section 23A, cited in Woodroffe.

2. Woodroffe.

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