Sections 164 and 165 of the Indian Evidence Act, 1872: Refused Documents and Judge's Power

Sections 164 and 165 of the Indian Evidence Act, 1872 deal with two distinct evidentiary matters: the consequence of refusing to produce a document after notice, and the Court's broad power to ask questions or order production in order to discover or obtain proper proof of relevant facts.

Legal position covered by this article: This page explains the Indian Evidence Act, 1872 position applicable before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. It is intended for matters in which the earlier Evidence Act framework is relevant.

Section 164: Using as evidence a document whose production was refused on notice

Meaning: Section 164 prevents a party who has refused to produce a document after receiving notice to produce it from later using that same document as evidence, unless the other party consents or the Court orders otherwise.

Statutory rule

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

Illustration in substance:

A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A then gives secondary evidence of its contents. B cannot thereafter produce the document merely to contradict that secondary evidence or to show that the agreement is not stamped.

Practical effect: A party cannot ordinarily gain an evidentiary advantage by withholding a document after notice and then producing it later when it becomes tactically useful. The statutory exceptions are the consent of the opposite party or an order of the Court.

Section 165: Judge's power to put questions or order production

Meaning: Section 165 gives the Judge an active evidentiary power to ask questions and order production where this is directed to discovering relevant facts or obtaining proper proof of them. The power is broad, but it is subject to express statutory safeguards.

Scope of the power

For the purpose of discovering or obtaining proper proof of relevant facts, the Judge may ask questions, in any form and at any time, of a witness or the parties about relevant or irrelevant facts, and may order production of a document or thing. The parties or their agents cannot object merely to such a judicial question or order, and a witness may not be cross-examined on an answer to such a question without leave of the Court.

Limits and safeguards under Section 165

The Judge's questioning power does not displace the Evidence Act's rules governing the basis of a judgment or protected evidence. The judgment must rest on facts declared relevant by the Act and duly proved.

The section also does not authorize a Judge to compel an answer or production that a witness would be entitled to refuse under Sections 121 to 131 if the adverse party had asked the question or called for the document. Nor does it authorize improper questions prohibited by Sections 148 or 149, or permit the Court to dispense with primary evidence except where the Act itself recognizes an exception.

Important distinction: Section 165 enlarges the Court's ability to clarify the evidence and reach relevant facts; it does not make every answer or fact substantive evidence on which a judgment may lawfully be based.

How Sections 164 and 165 operate together

Section 164 primarily regulates the conduct of a party who has refused to produce a document despite notice. Section 165 concerns the Court's own evidentiary powers. Accordingly, Section 164 restricts later use of a withheld document, while Section 165 enables judicial intervention to clarify facts and obtain proper proof, subject to the privileges, relevancy rules and documentary-evidence safeguards preserved by the Act.

These provisions should therefore be read with the surrounding rules on production of documents, documentary evidence, privilege, examination of witnesses and the Court's control over questioning.

Note: This article states the pre-Bharatiya Sakshya Adhiniyam legal framework under the Indian Evidence Act, 1872 and is for general legal information. The applicable law may depend on the date and nature of the proceeding.