Section 64 BSA 2023: Rules as to Notice to Produce
Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 lays down when a party must give notice to the person holding an original document before relying on secondary evidence, and the situations in which the Court may dispense with such notice.
Chapter: Chapter V - Of Documentary Evidence
Provision: Section 64 - Rules as to notice to produce
In force from: 1 July 2024
What Section 64 means
The general rule is that where a party seeks to give secondary evidence under Section 60(a) of the BSA, and the original document is in the possession or power of another person, the party relying on secondary evidence should first give that person, or that person's advocate or representative, a notice to produce the original.
If a law prescribes the form or manner of notice, that requirement must be followed. If no law prescribes it, the notice should be one that the Court considers reasonable in the circumstances. Section 64 also specifies cases where prior notice is unnecessary.
Text of Section 64 - Rules as to notice to produce
64. Secondary evidence of the contents of the documents referred to in clause (a) of section 60, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate or representative, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
(a) when the document to be proved is itself a notice;
(b) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(d) when the adverse party or his agent has the original in Court;
(e) when the adverse party or his agent has admitted the loss of the document;
(f) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
Connection between Section 60(a) and Section 64
Section 60 specifies the circumstances in which secondary evidence of a document may be given. Clause (a) applies where the original is in the possession or power of the person against whom it is sought to be proved, a person outside the reach of the Court, or a person legally bound to produce it. In such a case, failure to produce the original after the notice contemplated by Section 64 is part of the statutory basis for relying on secondary evidence.
When notice to produce is not required
Section 64 expressly recognises six situations where prior notice need not be given. The Court also retains power to dispense with notice in any other case where it considers that appropriate.
- The document itself is a notice: a separate notice to produce is unnecessary.
- The adverse party already knows production will be required: the nature of the case itself provides sufficient awareness.
- The original was obtained by fraud or force: the law does not insist on prior notice in such circumstances.
- The original is already in Court: notice serves no practical purpose when the adverse party or agent has brought it to Court.
- Loss is admitted: where the adverse party or agent admits that the document is lost, notice is unnecessary.
- The holder is beyond the Court's process: notice is not required where the person possessing the document is out of reach of, or not subject to, the Court's process.
Practical effect of Section 64
Section 64 is a procedural safeguard connected with proof by secondary evidence. It gives the person holding the original a fair opportunity to produce it before another form of evidence of its contents is relied upon. At the same time, the proviso prevents the notice requirement from becoming an unnecessary formality where production cannot reasonably be expected or where notice would serve no useful purpose.
Important: Whether secondary evidence is ultimately admissible depends on the applicable provisions of the BSA and the facts proved before the Court. Section 64 should therefore be read with Sections 56 to 63, particularly Section 60.
Official sources
For the authoritative statutory text and commencement notification, refer to the official Government of India sources below.