Bharatiya Sakshya Adhiniyam, 2023
Section 64
Rules as to notice to produce
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.
Why this exists
The rule exists to give the person holding an original document a fair chance to bring it to court before someone else is allowed to rely on a copy or secondary account of its contents. This prevents unfair surprises at trial and encourages parties to produce the best evidence available. The listed exceptions recognize situations where insisting on formal notice would be pointless, unfair, or impossible — for instance, if the original is already in court, its loss is admitted, or the holder is beyond the court's reach.
How courts read it
This provision is a near word-for-word continuation of Section 66 of the Indian Evidence Act, 1872. Under that predecessor, Indian courts consistently held that the requirement of notice is a rule of caution meant to prevent unfair surprise, not a rigid technicality, and could be dispensed with where its purpose was already served (for example, if the opposing party had clearly indicated they would not produce the document, or had received effective notice through pleadings or earlier proceedings). Courts have generally interpreted the exceptions flexibly, focusing on whether the adverse party had fair notice and opportunity to produce the original, rather than insisting on strict formal compliance.
Common misconceptions
- Myth: You can never use a photocopy or copy of a document in court.
Fact: Secondary evidence like copies can be used, but usually only after properly notifying the person holding the original to produce it — or if an exception applies. - Myth: Notice to produce must always be a strict, formal written notice.
Fact: If no specific law prescribes the notice format, courts can accept whatever notice they consider reasonable under the circumstances.