§ SECTION 64 · BSA 2023 · CHAPTER V — DOCUMENTARY EVIDENCE

Rules as to notice to produce

The gatekeeper for § 60(a). Before proving such a document by secondary evidence, the party must first give the holder a notice to produce the original — unless the case falls within one of six exceptions, or the Court dispenses with it.

How to read Section 64

A fairness step — with sensible exceptions.

The rule

For § 60(a) documents, give a notice to produce before secondary evidence.

The measure

As prescribed by law, or as the Court considers reasonable.

The exceptions

Six cases (a)–(f) — and any case the Court thinks fit to dispense.

The bare Act

The section in its own words — the notice rule and the six exceptions.

Section 64 · verbatim

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:

Proviso.—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;

(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.

In short: where the original is in the opponent’s hands (§ 60(a)), you cannot leap straight to a copy. You must first give a notice to produce — in the form the law prescribes, or as the Court thinks reasonable — so the holder has a fair chance to bring the original. Only if he then fails does secondary evidence become admissible. The proviso excuses the notice where it would serve no purpose: the document is itself a notice (a); the party already knows he must produce it (b); he got the original by fraud or force (c); the original is already in court (d); he has admitted its loss (e); or the holder is beyond the Court’s reach (f) — and, more broadly, in any case the Court thinks fit.

→ This carries forward IEA 1872 § 66 — the notice § 60(a) requires.

Glossary

notice to produce

A formal call on the holder to bring the original to court.

§ 60(a)

The ground this notice serves — original in the opponent’s possession.

prescribed by law

The form/timing of notice a statute or rule lays down.

reasonable notice

Where none is prescribed — what the Court thinks fair in the case.

adverse party

The opposing party who holds (or held) the original.

dispense with

The Court’s power to excuse the notice requirement.

out of reach of process

Beyond the Court’s power to compel — notice would be futile (f).

The picture

Notice first — unless notice would be pointless.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The notice ruleWhen notice is excused

the ruleWarn the holder before you use a copy

In one lineFor a document under § 60(a) (original in the opponent’s hands), secondary evidence may not be given unless you have first served a notice to produce — as prescribed by law, or as the Court thinks reasonable.

Secondary evidence of the contents of the documents referred to in clause (a) of section 60,§ 60(a) secondary evidencefor secondary evidence of a document under § 60(a) (original in the opponent’s hands)…

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,give NOTICE to produce first…it shall not be given unless you have first given notice to produce to the holder (or his advocate/representative)…

such notice to produce it as is prescribed by law;notice as prescribed by law…the notice 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:else, reasonable notice…or, if none is prescribed, such notice as the Court thinks reasonable.

ExampleYou wish to prove a letter held by the opponent. You first serve a notice to produce it; only if he then fails to produce may you give secondary evidence — the notice gives him the chance to produce the original.

✗ Not thisThe notice is not a demand to obtain the document — it is a chance for the holder to produce it, and a pre-condition for secondary evidence. It applies to § 60(a) specifically; the other § 60 grounds do not need it.

the provisoSix cases where notice is excused

In one lineNotice is not required in six situations (or wherever the Court thinks fit) — because notice would be pointless or the holder is already on warning.

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:—NO notice needed when…but no notice is required in these cases (or wherever the Court dispenses with it):

(a) when the document to be proved is itself a notice;(a) the document is itself a noticethe 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;(b) he must know he’ll be askedthe adverse party, from the nature of the case, must know he will be asked to produce it.

(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;(c) he got it by fraud / forcehe obtained the original by fraud or force.

(d) when the adverse party or his agent has the original in Court;(d) the original is in Courthe (or his agent) has the original in Court.

(e) when the adverse party or his agent has admitted the loss of the document;(e) he admitted its losshe (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.(f) holder beyond the Court’s reachthe holder is out of reach of, or not subject to, the Court’s process.

ExampleIf the very document you are proving is itself a notice (a), or the opponent has the original in court (d), serving a notice to produce would be pointless — so it is excused.

✗ Not thisThe list is not closed — the Court may dispense with notice “in any other case in which it thinks fit”. But where none of these applies, notice remains a pre-condition of secondary evidence.

Connected provisions

§ 60

IEA 1872, § 66

Carried forward — rules as to notice to produce.

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