Section 164 Bharatiya Sakshya Adhiniyam, 2023: Right of adverse party as to writing used to refresh memory

Section 164 of Bharatiya Sakshya Adhiniyam, 2023: Right of adverse party as to writing used to refresh memory

Official Bare Act Text

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

Any writing referred to under the provisions of the two last preceding sections shall be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

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

Court Sec 2(1)(a) Document Sec 2(1)(b)

Legal Commentary & Landmark Judgments: Section 164

Section 164 establishes the right of the adverse party as to writing used to refresh memory, providing that any writing referred to under section 163 must be produced and shown to the adverse party, who may cross-examine the witness thereupon.

Adverse Party Inspection Right: Absolute right of opposing counsel to inspect the document, notes, or diary used by the witness to refresh memory.
Cross-Examination Facility: Opposing counsel may cross-examine the witness on the parts referred to and surrounding entries.
Protection Against Manufactured Notes: Prevents witnesses from reading out prepared coaching scripts disguised as refreshed recollection.

Key Landmark Precedents:

State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715: The Supreme Court emphasized that if a witness refreshes memory under Section 159, the adverse party has an inviolable right under Section 161 IEA (Section 164 BSA) to inspect the document and cross-examine the witness on it.
Purushottam Jethanand v. State of Kutch (AIR 1954 SC 700): Affirmed that refusal to allow the defense to inspect notes used by a witness to refresh memory prejudices the accused and impairs the testimony.

Courtroom Practice & Strategic Litigation Guidance:

The moment an adverse witness or investigating officer looks down at a file or notebook, immediately stand up: 'Your Honor, the witness is refreshing memory under Section 163; I demand production and inspection of the document under Section 164 BSA before the examination proceeds.'