Whether S 164 of Evidence Act is applicable to criminal proceeding?

 However his failure to do so, is, it appears to the learned Magistrate, a ground to deprive him of the right to use these documents as material for his defence. The learned Magistrate based this view on the provisions of Section 164, Evidence Act, which provides that when a party refuses to produce a document which he has had notice to produce he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Accordingly, when in cross-examination the complainant was shown these books he refused to have anything to do with them or to answer any question with regard to them and in his refusal it is clear that he was supported by the learned Magistrate. In my opinion the learned Magistrate misunderstood the meaning and intention of Section 164. Speaking for myself, I am by no means convinced that Section 164 applies to criminals proceedings. Section 164 does not contemplate the production of documents for inspection. What it contemplates is that one party should call upon another in Court to produce a document of which, the first party has given the other notice to produce. It does not give him any right at any stage of the case to call upon his opponent to produce the document and use it or not as he sees fit. I do not myself see any indication in the section that the complainant can call for a document in this sense. We think that the learned Magistrate was wrong in not permitting the pleader for the defence to put these documents to the complainant and cross-examine him on them. The fact that the accused adopted an unreasonable attitude with regard to their production may be material when the time comes to consider as to what weight to be attached to them. We think that the learned Magistrate-was wrong in not permitting the documents upon which the accused claims to base the main part of his defence to be put to this particular witness for the prosecution. This seems to us to be a sufficient reason for setting aside the conviction. 

IN THE HIGH COURT OF CALCUTTA

Decided On: 13.07.1932

Sham Das Kapur  Vs.  Emperor

Hon'ble Judges/Coram:

H.R. Panckridge and M.C. Ghose, JJ.

Citation : AIR 1933 Cal 65

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Whether document can be treated as proved if it is produced in consequence of notice to produce document?

Section 163, Evidence Act reads as under : --

"163. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so."

The ingredients of the provision are :

(i) One party having given the other a notice to produce must call for that document;

(ii) Such document should be produced by such other party;

(iii) the party calling for the document must have inspected it.

When the abovesaid three steps have been followed the party calling for the document would be bound to give it a evidence on the party producing the document insisting on doing so.Section 163 of the Evidence Act has to be read along with Section 164. The two read together project the object underlying. If a party called upon to produce a document in his custody fails to produce the same, he would be debarred from producing that document as evidence unless the other party waives the right accrued to him or the Court still permits the production. On the contrary, if the party in possession of the document yields to the call of his opponent not only by producing the document but also by offering its inspection, the party calling for the document, cannot be permitted to turn around object to the production of that document in evidence. This appears to be a simple rule of fair trial between the two adversaries before a Court and nothing more. Be it noted that the two provisions enact a rule of evidence and not a principle of proof.

Distinction between evidence and proof is well defined and perceptible. It will be useful to read the definition of the term 'evidence' with reference to documents and the definitions of the terms 'proved', 'disproved' and 'not proved' in Section 3 of the Evidence Act.

'Evidence' means and includes

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(2) all documents produced for the inspection of the Court;

Such documents are called documentary evidence.

'Proved'

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

'Disproved'

A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

'Not proved'

A fact is said not to be proved when it is neither proved nor disproved.

Section 163 of the Evidence Act read in the light of the definition of the term 'evidence' leads to certain inferences. A party man call for production of a document in the custody of his opponent and may also inspect the same. Till that stage, the document remains a 'document' and does not become an 'evidence'. It is only when a document is produced for inspection of the Court that the 'document' becomes 'evidence'. The party calling for the document may have several weapons in his armoury utilising which it can prevent the other party's document from becoming evidence. All those weapons can be utilised at all times until all the three steps contemplated by Section 163 of the Evidence Act have been put in. A party may call for a document but the opponent may not produce. The opponent having produced the document, the party making the call may still be advised not to inspect. Till this stage the party is not debarred from objecting to other party's documents becoming evidence, if it can. But having inspected the document, the party would be debarred from objecting to the attempt of other party in tendering that document in evidence or in other words from producing that document for the inspection of the Court. However, that does not mean that if the law bars admissibility of a document than merely on account of production and inspection of the document between the parties, it would become admissible. For example, if a document is required by law to be registered to be scribed on stamp paper of a particular denomination, which it is not, a mere product ion for and inspection by adversary of the document would not make it admissible in evidence. Similarly, Section 163 of the Evidence Act does not speak of relevancy of the document. A document may be admissible in evidence and yet be not relevant. Then, a document may be required by law to be proved in a particular mode, such as a will is required to be proved in accordance with Section 68 of the Evidence Act. In a disputed case of will, if the party disputing the will propounded by his opponent, has called for and inspected the will, it would not mean that the opponent would be absolved of his responsibility of proving the will in the manner required by Section 68 of the Evidence Act.

Evidence in relation to law includes all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonyms, but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself (Taylor 11th Ed., p. 1). The definitions of the words 'proved' 'disproved' and 'not proved', embodiment of sound rule of common sense, would be described the degree of certainty to be arrived at before the fact can be said to be proved, disproved and not proved by evidence. In short, proof is the effect of evidence. It is this background which assumes significance as to why the draftsman of the Evidence Act deliberately abstained from using the term 'proof' in any of its variations in the language of Section 163 of the Evidence Act.

A few decided cases may now be noticed.

In Rajagopala Ayyangar v. Ramanuja Ayyangar 72 Ind Cas 459 : (AIR 1923 Mad 607), a Division Bench of Madras High Court observed :

"Section 163 of the Evidence Act does hot render proof of the documents to be exhibited unnecessary or alter the normal incidents of that burden.....it includes nothing relating to the burden of proof or the necessity for the proof prescribed in the other Sections of the Act."

In Ramadhin v. Ram Dayal 57 Ind Cas 973 : (AIR 1919 Oudh 8), it was held :--

"Where documentary evidence is admitted under the special provisions of Section 163 of the Evidence Act, such evidence is merely evidence in the case for what it may be worth, and is not conclusive against the party who has inspected the documents."

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

C.R. No. 86 of 1989

Decided On: 26.09.1989

 Phoolchand Garg Vs. Gopaldas Agarwal and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, J.

Citations: AIR 1990 MP 135

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Whether S 163 of Evidence Act is applicable to documents produced before court under O 11 R 14 of CPC?

Section 163. Giving, as evidence, of document called for and produced on notice.- When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

19. The rationale behind the Section seems to be that it would be manifestly unjust and unfair to permit one to gain an undue advantage by looking into the documents of his opponent without being obliged to use it as evidence for both of them. Under the pretext of a desire to use in evidence, a party might call for documents the contents of which were not known to him and finding that they did not suit his purpose or went against him, he might wriggle out of the situation by discarding them. It maybe urged that such a rule is not consistent with the party's right to obtain discovery and inspection. Section 163does not refer to documents produced in obedience to the order of Court under Order 11 Rule 14 of the Code.

Andhra High Court

Rajesh Bhatia And Ors. vs G. Parimala And Anr. on 30 November, 2005

Equivalent citations: 2006 (3) ALD 415, 2006 (3) ALT 129

Bench: T C Rao

Read full judgment here: Click here

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Whether Prosecution can rely on statements of witness produced by them on application of defence U/SS 163 of Evidence Act?

 

The opinion of the learned Judge touching the effect of Section 163, Evidence Act seems to be based upon the idea that the section can have no applicability to criminal trials, at any rate where the Crown is the prosecutor. There is, however, nothing to support this view, and no such limitation is to be found in the wording of the section itself. In the argument before us no such contention was sought to be upheld.The contention before us has been that Section 163 does not apply, having regard to the nature of the documents in question, though it is admitted that the other conditions specified in the section have been fulfilled. It is conceded that notice to produce was given to the Crown, that the defence called for the documents and they were thereupon produced and inspected, and, it may be added, they were mostly used for cross examining the several witnesses. It is, however, said that the section does not apply to this kind of document but that it necessarily contemplates only that class of document to which the party calling for it would have no access unless his opponent produces it, which is inaccessible because in the exclusive possession of the ether party. Then it is argued, these were not in the exclusive possession of the other side, because such statements, which were recorded de partmentally by a public officer in his executive capacity, cannot be said to be in the exclusive possession of the prosecution. This is tantamount to saying that the Crown as prosecutor is a different person from the Crown that had recorded the statements, and there is no substance in such contention. The Crown undoubtedly has exclusive possession of such a document, whether it be in one department or another. We are of opinion that it was not a judicial enquiry, nor was the evidence given upon oath, and it seems to us that no question arises of these statements being public documents, but that they were documents in which Section 163, Evidence Act, could properly be applied, and that the defence were bound to put them in. The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself 'says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits. Moreover the writing of the statements and the signature by the Magistrate have been proved. It is not a sufficient answer to say that in certain cases the witnesses were asked certain questions based upon these statements when re-examined by the prosecution, and that therefore the prosecution could have got in the whole of the statements in that way as evidence.

IN THE HIGH COURT OF CALCUTTA

Decided On: 27.02.1930

 Government of Bengal Vs. Santiram Mondal

Citation: AIR 1930 Cal 370

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Whether it is mandatory to admit document which is produced in response to notice to produce document?

Nobody seems to have also cared to look into the provisions of Section 163, Evidence Act, and see for himself whether in the circumstances of this case it has any application. Under that section it was the plaintiff's duty to have required the defendants, who had taken inspection, to tender the account books as evidence of both parties. Having taken inspection of plaintiff's books of account the defendants took the risk of making them evidence of both parties in the case. In fact they needed no further proof and were admissible and should have been admitted in toto.

As held in Rajeswri Kuar v. Rai Bal Krishan [1887] 9 All. 713.

it would be a monstrous thing if the party sued were allowed to call for the accounts of the plaintiff and extract from them just such items as proved matters of defence...and were not to allow those items which make in favour of the plaintiff. The High Court held that the books must be admitted in toto. Their Lordships think the High Court were entirely right....

IN THE HIGH COURT OF NAGPUR

Decided On: 23.09.1927

Kisan Ghule  Vs. Puransa and Ors.

Citation: AIR 1928 Nagpur 119

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