Section 164

Witnesses are sometimes allowed to look at notes, diaries, or records to refresh their memory while testifying. This provision exists to ensure fairness: if one side benefits from a document to jog a witness's memory, the other side must not be kept in the dark about it. Transparency and the right to test the reliability of testimony are core to a fair trial, so the adverse party gets to inspect the writing and challenge the witness on its contents, accuracy, or origin.

Under the predecessor provision (Section 161 of the Indian Evidence Act, 1872), Indian courts consistently held that the right to inspect and cross-examine on such writings is not merely discretionary courtesy but a valuable right of the adverse party, since it allows testing whether the witness is genuinely refreshing memory or improperly relying on someone else's account. Courts have emphasized that denial of this right can prejudice a fair trial, though the scope of cross-examination is generally limited to the parts of the writing actually used to refresh memory.

• Myth: Only the judge can look at the writing used by the witness.
  Fact: The adverse party also has the right to see the writing if they ask, and can question the witness about it.
• Myth: The opposing side can cross-examine the witness on anything once they see the document.
  Fact: Courts have generally read this right as limited to questioning about the writing used to refresh memory, not an open-ended cross-examination on unrelated matters.