Report No. 69

Chapter 94

Documents Produced After Notice and Inspected

Section 163

94.1. Introductory.-

A summons to produce a document must be obeyed. Section 162, which we have already discussed, so provides. What happens in regard to the more particular case of a notice to produce a document is dealt with in two sections-section 163 and 164. Under section 163, when a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

94.2. Object.-

This section is intended to prevent the somewhat "undignified squabbling", which frequently takes place in England, as to whether a document which the other party has received notice to produce, should be put in.1 The reason for this rule is that it would give an unconsciousable advantage to a party to enable him to try into the affairs of his adversary,2 without at the same time subjecting him to the risk of making whatever he inspects evidence for both parties. In Wharton, v. Routledge, 5 Esp 235, cited in Woodroffe. Lord Ellenborough said:

"You cannot ask for a book of the opposite party and be determined on the inspection of it whether you will use it or not. If you call for it you make it evidence for the other side, if they think fit to use it."

1. Markby on Evidence, p. 113, cited by Field.

2. Taylor Evidence, section 181, cited in Woodroffe.

94.3. Rationale.-

In Lawrence v. Van Horne, 1 Caines 276. See Field, Radcliffe, J., observed:

"A party who gives notice to produce a paper in evidence must be supposed to know its contents. If he does not, he ought not to be permitted to speculate through the forms of law and obtain from his adversary the inspection of any paper or document he may choose to demand. Such a privilege would be liable to abuse."1

1. Wigmore's Evidence, Vol. VIII, p. 558.

94.4. Conditions making the party to give opponent's document as evidence.-

Let us analyse the section. A party is bound to give the opponent's document as evidence if three conditions are fulfilled. The first condition is that the document should be required by that party to be produced in evidence. The second condition is that it should be inspected by the party. The third condition is that the party producing the document should require the party calling for it to put it in evidence. All the three conditions must be satisfied. If only the first of these conditions has been satisfied, the document cannot be treated as evidence of the party called for it.1 It is clear from the provisions of this section that the party inspecting the document is bound to give it as evidence only if the party producing the same requires it to do so.2

A person is not obliged to put in evidence the papers called for by him. If the party giving the notice declines to use the papers when produced, this, though a matter of observation, will not make them evidence for the adverse party.3 For, if notice to produce invested4 the instrument called for with the attribute of evidence, testimony incapable of proof might be brought into a case by such notice. Of course, the position is otherwise (as the section says), if the papers are inspected by the party calling for them. Where a party calls for a document from the other party and inspects the same, he takes the risk of making it evidence for both parties. It rests, however, upon the party who calls for and inspects a paper to adduce evidence of its genuineness, if that be not admitted.5

1. Lila Dhar Ratanlal Vyas v. Holkarmal Sohanlal, 1960 Born LR 439: AIR 1959 Born 528 (529).

2. Shrinarain v. Chunilal, AIR 1957 Raj 159 (161).

3. Sayer v. Kitchan, 1 Esp 210, cited in Woodroffe.

4. As to notice, see Order 11, rule 15, C.P.C.

5. Mahomed v. Abdul, (1903) 5 Born LR 380.

94.5. Evidentiary value of documents admitted under section 163.-

This section does not render proof of the document to be exhibited unnecessary or alter the normal incidence of burden of proof as detailed in other sections of the Act.1 The documents admitted under this section must not be deemed to be conclusive evidence against the inspecting party, they become evidence for all they are worth.2

1. Raja Gopal v. Ramanuja, 1923 NWN 292: 72 IC 459 (Mad).

2. Ramadhin v. Ram Dayal, 57 IC 973 (Oudh).

94.6. Criminal cases.-

The section does not expressly provide that it is confined to civil cases, and it would appear that the Calcutta view on the subject is that section 163 applies to criminal trials as well as to civil suits1-2.

1. Government of Bengal v. Santiram Mandal, AIR 1930 Cal 370.

2. Emperor v. Makhanlal Dutt, AIR 1940 Cal 167 (168).

94.7. The Calcutta view is based principally on the reason that no such limitation is to be found in the wording of the section itself. In both the Calcutta cases, notice to produce certain statements was given to the Crown by the defence, and the statements were produced by the Crown, inspected by the defence and used for cross-examination. It was held that the Crown was entitled to use the whole statements.

It was suggested to us that some of the reasons which justify the imposition of a prohibition, even if they apply, do not apply with the same force in criminal cases. To a large extent, section 163 is based on the consideration that it would give an unconscionable advantage to a party to enable him to try into the affairs of his adversary, without, at the same time, subjecting him to the risk of making whatever he inspects evidence for both the parties. In criminal cases, however, even if this consideration is regarded as applicable, there are other considerations which should be taken as overriding it. We have however not been convinced of the need for a change.

94.8. Recommendation.- It is for these reasons that we do not recommend any change in section 163.

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