Section 64 Bharatiya Sakshya Adhiniyam, 2023: Rules as to notice to produce

Section 64 of Bharatiya Sakshya Adhiniyam, 2023: Rules as to notice to produce

Official Bare Act Text

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

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.

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

Court Sec 2(1)(a) Document Sec 2(1)(b) Evidence Sec 2(1)(c) Proved Sec 2(1)(f) Secondary Evidence Sec 58

Legal Commentary & Landmark Judgments: Section 64

Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the mandatory rules regarding Notice to Produce documents in the possession of the adverse party, regulating the procedural prerequisite for leading secondary evidence.

Mandatory Precondition: Notice to produce must be served on the party in possession or their legal practitioner before secondary evidence becomes admissible under Section 60(a).
Format & Reasonable Time: The notice must be in writing, specifying the document with reasonable particularity and giving sufficient time for production.
Statutory Exceptions: Notice is dispensed with where: the document is itself a notice, the adverse party knows they must produce it, or possession was obtained by fraud or force.

Key Landmark Precedents:

Vijay v. Union of India (2023) 12 SCC 309: The Supreme Court affirmed that service of notice to produce under Section 66 IEA (Section 64 BSA) is a vital condition precedent; once served, if the opposite party fails to produce, secondary evidence is admissible as of right.
State of Rajasthan v. Kashi Ram (2006) 12 SCC 254: Held that failure to produce a document within the exclusive custody of a party after statutory notice triggers adverse inferences under Section 119 BSA.

Courtroom Practice & Strategic Litigation Guidance:

Always issue a formal notice to produce under Section 64 BSA well before framing of issues or the commencement of cross-examination. This forecloses any objection regarding the admissibility of secondary copies.