Refreshing memory
Jogging recollection from the record. A witness may, while testifying, refresh his memory from a writing made at the time (by himself, or one he read and verified then) — and, with the court’s leave, from a copy; an expert may use professional treatises.
How to read Section 162
A witness may look at a note made when the matter was fresh to jog his memory — his own or a verified one — and, with leave, a copy; an expert may use the books of his field.
A witness may refresh his memory from a writing he made at the time of the transaction, or soon after while it was fresh.
Or a writing made by another, which he read within that time and knew to be correct.
With the court’s permission he may use a copy (if the original’s absence is explained); an expert may use professional treatises.
The bare Act
The section in its own words — two sub-sections and their provisos.
(1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:
Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
(2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
Provided further that an expert may refresh his memory by reference to professional treatises.
In short: a witness in the box does not testify from a blank memory — he may refresh it. Sub-section (1) lets him refer, while under examination, to a writing he himself made — but only one made at the time of the transaction, or so soon afterwards that the court thinks the matter was then fresh in his memory. The freshness requirement is the key: a note scribbled later, when memory has faded, will not do. The proviso extends this to a writing made by another person — provided the witness read it within that same fresh period and, when he read it, knew it to be correct (so he adopts it as his own). Sub-section (2) allows a copy to be used in place of the original — but only with the court’s permission and where the court is satisfied there is sufficient reason for not producing the original. A final proviso carves out a special case: an expert may refresh his memory from professional treatises — the standing literature of his field — because his knowledge is not tied to a single transaction. Throughout, the witness still gives his own evidence; the writing merely jogs his recollection.
→ This carries forward IEA 1872 §§ 159–160 — refreshing memory from a contemporaneous writing, a copy, or expert treatises.
Glossary
Jog his recollection while giving evidence.
A contemporaneous record, made while the matter was fresh.
Another’s record he read and verified while it was fresh.
A copy may be used if the court allows and the original’s non-production is explained.
A satisfactory explanation for not producing the original.
An expert may refresh from the published works of his field.
The picture
A fresh, contemporaneous note jogs the witness — his own, or a verified one; a copy needs leave; an expert may use the books.
The section, part by part
Tap a part — the picture-story tells it first; the word-by-word text and example follow.
the writingA fresh, contemporaneous note — his own or a verified one
copies & expertsA copy with leave — and the expert’s books
Connected provisions
Testing a § 26/§ 27 statement
The previous provision on an absent maker’s statement; § 162 turns to a live witness refreshing his memory.
Testimony to facts stated in document
A witness may testify to facts he no longer recalls but is sure the writing correctly recorded — the book-keeper case.
Right as to writing used to refresh
The opposite party may inspect the writing used to refresh, and cross-examine on it.
IEA 1872, §§ 159–160
Carried forward — refreshing memory from a contemporaneous writing, a copy, or expert treatises.