Section 136 Bharatiya Sakshya Adhiniyam, 2023: Production of documents or electronic records which another person, having possession, could refuse to produce

Section 136 of Bharatiya Sakshya Adhiniyam, 2023: Production of documents or electronic records which another person, having possession, could refuse to produce

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Evidence Sec 2(1)(c) Proved Sec 2(1)(f)

Legal Commentary & Landmark Judgments: Section 136

Section 136 provides that no one shall be compelled to produce documents or electronic records in their possession which any other person would be entitled to refuse to produce if they were in their possession, unless such other person consents to their production.

Agent & Custodian Shield: Protects banks, accountants, and cloud storage providers from being compelled to disclose records which the client themselves could lawfully withhold.
Electronic & Cloud Scope: Expressly covers electronic records, database backups, and digital repositories held by third-party intermediaries.
Derivative Privilege Standard: The custodian stands in the shoes of the principal; if the principal has privilege, the custodian cannot produce without consent.

Key Landmark Precedents:

Superintendent and Remembrancer of Legal Affairs v. Satyen Bhowmick (1981) 2 SCC 109: The Supreme Court recognized that agents and intermediaries holding papers for a client cannot be coerced into producing what the client is protected from disclosing.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1: Highlighted data custodian responsibilities in electronic evidence production under evidence provisions.

Courtroom Practice & Strategic Litigation Guidance:

When serving a subpoena on an IT service provider or cloud host holding an opponent's confidential digital backups, expect an objection under Section 136 BSA: the provider cannot produce without the subscriber's consent.