Section 136 BSA 2023: Production of Documents or Electronic Records Which Another Person Could Refuse to Produce
Section 136 of the Bharatiya Sakshya Adhiniyam, 2023 protects a person from being compelled to produce a document or electronic record where another person, if that record were in that other person's possession or control, would be legally entitled to refuse its production.
Act: Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023)
Provision: Section 136
Subject: Protection against compelled production of certain documents and electronic records
In force from: 1 July 2024
Text of Section 136 of the Bharatiya Sakshya Adhiniyam, 2023
136. Production of documents or electronic records which another person, having possession, could refuse to produce.
No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.
Meaning and Scope of Section 136 BSA
The section deals with a situation in which a document or electronic record is physically held or electronically controlled by one person, but the right to refuse its production belongs to another person. The holder cannot ordinarily be compelled to defeat that other person's lawful protection merely because the record happens to be with the holder.
In practical terms, the provision carries the protection attached to the document or electronic record along with the record. If the person whose interest is protected could lawfully refuse production, the Court cannot ordinarily compel a third-party holder to produce it unless that protected person consents.
Essential Requirements of Section 136
- The material must be a document in the person's possession or an electronic record under that person's control.
- Another person must have a legal entitlement to refuse production if the same material were in that other person's possession or control.
- The person who presently possesses or controls the material cannot be compelled to produce it merely because of that possession or control.
- The protection ceases for the purpose of this section if the person entitled to refuse production consents to production.
Why Section 136 Is Important
Section 136 prevents a privilege or other lawful right of non-production from being circumvented by obtaining the protected material from a different custodian. The rule therefore focuses not only on who physically possesses a document, but also on whether another person has the substantive legal right to withhold it.
The express reference to electronic records under control is important in modern litigation because relevant material may be stored in email accounts, cloud storage, servers, digital devices, or other electronic systems rather than in paper form.
Relationship With Nearby BSA Provisions
Section 136 appears in Chapter IX of the Bharatiya Sakshya Adhiniyam dealing with witnesses. It should be read in the context of the neighbouring provisions concerning protected communications and compelled production.
| Provision | Subject |
|---|---|
| Section 132 | Professional communications |
| Section 133 | Privilege not waived by volunteering evidence |
| Section 134 | Confidential communication with legal advisers |
| Section 135 | Production of title-deeds of witness not a party |
| Section 136 | Documents or electronic records which another person could refuse to produce |
| Section 137 | Witness not excused from answering on ground that answer will criminate |
Section 136 BSA and the Earlier Indian Evidence Act
Section 136 BSA broadly corresponds to Section 131 of the Indian Evidence Act, 1872. The earlier provision also protected documents and electronic records where another person would have been entitled to refuse production. The BSA reorganises the provision as Section 136 within the new evidence law.
Illustrative Understanding
Suppose a person holds a document or electronic record belonging to another person, and that other person has a lawful right to refuse its production. Section 136 prevents the protection from being defeated simply by directing the present holder to produce the material. If the person entitled to refuse production gives consent, the statutory bar under this section no longer applies.
Frequently Asked Questions
Does Section 136 apply only to paper documents?
No. It expressly applies both to documents in a person's possession and to electronic records under a person's control.
Who must have the right to refuse production?
The section applies where another person would be entitled to refuse production if the document or electronic record were in that other person's possession or control.
Can the record be produced with consent?
Yes. The section expressly allows production where the person entitled to refuse production consents.
When did the Bharatiya Sakshya Adhiniyam, 2023 come into force?
The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024.
Last reviewed: 13 September 2026.