Section 64 BSA: Rules as to Notice to Produce

Section 64 BSA explains when notice to produce an original document is required before secondary evidence can be presented in court.

Introduction

Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the rules as to notice to produce. It establishes a procedural requirement for a party seeking to prove the contents of certain documents through secondary evidence when the original document is held by another person.

Ordinarily, the party proposing to rely on secondary evidence must first give the person holding the original document, or that person’s advocate or representative, a legally prescribed or reasonable notice to produce it. However, the provision recognises specific exceptions in which notice is unnecessary, and the court may dispense with notice in an appropriate case.

Section 64 BSA corresponds to Section 66 of the Indian Evidence Act, 1872. The provision retains the earlier rule substantially unchanged, with updated statutory terminology.

Bare Act: Section 64 of the Bharatiya Sakshya Adhiniyam, 2023

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.

Meaning of Section 64 BSA

Section 64 ensures procedural fairness when a party wants to rely on secondary evidence instead of producing an original document.

The provision is connected to Section 60(a) BSA, which concerns circumstances where the original document appears to be in the possession or power of the opposing party, a person beyond the court’s process, or a person legally bound to produce it, and that person fails to produce it after receiving the required notice.

The purpose of notice is to give the person holding the original a reasonable opportunity to produce it before the other party seeks to establish its contents through secondary evidence.

For example, A files a civil suit against B and wishes to prove the contents of an agreement whose original is in B’s possession. If A seeks to rely on a photocopy under Section 60(a), A ordinarily must first give B the required notice to produce the original. If B fails to produce it, A may seek to establish the contents through secondary evidence, subject to the other requirements of the law.

Important: Giving notice does not automatically make a photocopy or other secondary evidence admissible. The party must still establish the relevant conditions under Section 60 and satisfy the applicable rules concerning the admissibility and proof of the document.

Essential Elements of Section 64 BSA

1. The party intends to rely on secondary evidence

The notice requirement specifically applies to secondary evidence of the contents of documents covered by Section 60(a) BSA.

Secondary evidence may include a copy or another legally recognised form of evidence of a document’s contents, depending on the applicable provisions. Not every copy is automatically admissible.

2. The original document is held by another person

The original must be in the possession or power of the opposing party or another person falling within the circumstances described in Section 60(a).

Also Read: Section 60 BSA: When Secondary Evidence May Be Given

The party seeking to use secondary evidence should establish the factual basis for believing that the original is held by the relevant person or is otherwise covered by the provision.

3. Notice must be given before secondary evidence is offered

The notice must be given beforehand to the person holding the document or to that person’s advocate or representative.

Where a specific law prescribes the form or manner of notice, that requirement must be followed. If no form is prescribed, the notice must be reasonable in the circumstances of the case.

4. The original is not produced after notice

The failure to produce the original after notice may support the party’s request to rely on secondary evidence under Section 60(a).

However, non-production alone does not automatically prove the document’s contents or establish every condition necessary for admitting secondary evidence.

5. The statutory exceptions must be considered

Section 64 expressly identifies six situations in which notice is unnecessary. It also allows the court to dispense with notice in another appropriate case.

Six Exceptions to Notice to Produce Under Section 64 BSA

Section 64 provides that notice is not required in the following circumstances.

Exception	Explanation	Example
Clause (a): The document itself is a notice	A separate notice to produce is unnecessary where the document sought to be proved is itself a notice.	A party seeks to prove the contents of a notice that was sent to the opposing party.
Clause (b): The opposing party must know production is required	The nature of the case makes it clear that the opposing party must know the original will be required.	The original is central to the dispute, and the circumstances establish that the opposing party must know it will be required for the proceedings.
Clause (c): Possession obtained by fraud or force	Notice is unnecessary where the opposing party obtained possession of the original by fraud or force, as appears or is proved.	A party establishes that the original was taken from another person by force.
Clause (d): Original is already in court	No separate notice is necessary when the opposing party or their agent has the original in court.	The original agreement is already with the opposing party’s advocate in court.
Clause (e): Loss of the original is admitted	Notice is unnecessary where the opposing party or their agent admits that the document has been lost.	B admits in the proceedings that the original agreement has been lost.
Clause (f): Holder is beyond the court’s process	Notice is unnecessary where the person holding the document is out of reach of, or not subject to, the court’s process.	The original is held by a person whom the court cannot compel to produce it.

The examples are illustrative. Whether a particular case falls within an exception depends on the evidence and circumstances before the court.

Can the court dispense with notice in other cases?

Yes. The proviso expressly permits the court to dispense with notice in another case where it considers that appropriate.

This discretion is not automatic. The court must assess the circumstances and determine whether notice should be dispensed with.

Difference Between Notice to Produce and Summons to Produce

Notice to produce and a court-issued summons are different procedural mechanisms.

Basis	Notice to produce	Summons to produce
Meaning	A notice given to the person holding the original document, as required by the applicable law	A formal direction issued by a competent court requiring production
Purpose	To give the holder an opportunity to produce the original before secondary evidence is relied upon in circumstances covered by Section 64	To compel or formally require production in accordance with the applicable procedural law
Legal framework	Section 64 read with Section 60(a) BSA	Applicable procedural provisions governing summons and production of documents
Effect of non-production	May support a request to rely on secondary evidence, subject to statutory conditions	May have consequences under the applicable procedural law, depending on the circumstances

A notice under Section 64 should not be confused with every form of notice or a court’s power to summon a document. The correct procedure depends on the purpose for which production is sought.

Practical Examples of Section 64 BSA

Example 1: Photocopy of an agreement

A sues B for breach of an agreement. A has a photocopy, while the original is believed to be in B’s possession.

If A relies on the circumstances covered by Section 60(a), A ordinarily must give B the required notice to produce the original. If B fails to produce it, A may seek permission to prove its contents through admissible secondary evidence.

A must still establish the legal basis for using secondary evidence and satisfy the applicable evidentiary requirements.

Example 2: The original document is lost

A seeks to rely on a copy of a contract, and B admits that the original has been lost.

Under Section 64(e), notice to produce is not required merely to make secondary evidence admissible. However, A must still satisfy the other conditions governing secondary evidence and prove the document as required by law.

Example 3: Original document is already in court

A seeks to rely on secondary evidence of a document whose original is already in the possession of B’s agent in court.

Under Section 64(d), a separate notice to produce is unnecessary in the circumstances specified by the clause.

Example 4: Original document obtained by fraud

A establishes that B obtained possession of the original agreement by fraud. A wishes to rely on secondary evidence to establish its contents.

Section 64(c) removes the notice requirement in the specified circumstances. The court must still assess the admissibility and evidentiary value of the proposed secondary evidence.

Important Case Laws on Notice to Produce

Section 64 BSA substantially carries forward Section 66 of the Indian Evidence Act, 1872. Decisions interpreting the earlier provision remain relevant to understanding the corresponding rule, subject to the current statutory text and the applicability of the BSA.

Also Read: Section 56 BSA: Proof of Contents of Documents

1. K. Krishna Appala Naidu v. B. Sohanlal (2004)

Court: Andhra Pradesh High Court.

Decision date: 30 April 2004.

Legal issue: The case considered the requirements for relying on secondary evidence and the procedure relating to notice to produce under Sections 65 and 66 of the Indian Evidence Act, 1872.

Principle: The court explained that a party seeking to rely on secondary evidence must establish the factual and legal basis for doing so. Where the case falls under the predecessor Section 65(a), the requirement of notice under Section 66 cannot simply be ignored because the original document is believed to be with the opposing party.

The judgment also emphasised that merely filing an application to produce secondary evidence does not dispense with the procedural and evidentiary requirements.

Relevance to Section 64 BSA: The decision helps explain the connection between the present Sections 60(a) and 64 BSA. It illustrates why a party must establish the circumstances permitting secondary evidence and comply with the notice requirement unless an exception applies.

2. R. Dhanasekaran v. N. Dhakshinamoorthy (2011)

Court: Madras High Court.

Decision date: 16 August 2011.

Legal issue: The dispute involved the rules governing notice to produce and the circumstances in which secondary evidence may be relied upon under the predecessor Evidence Act.

Principle: The judgment discusses the statutory requirement of notice to produce, the exceptions specified in the proviso, and the relationship between notice and the admissibility of secondary evidence.

Relevance to Section 64 BSA: The case is useful for understanding that the notice requirement is linked to the specific circumstances covered by the provision and that the statutory exceptions must be examined before concluding that notice is necessary.

Note: Both decisions interpreted the Indian Evidence Act, 1872, rather than Section 64 BSA itself. Their relevance lies in the substantially corresponding earlier provisions.

Difference Between Section 64 BSA and Section 66 of the Indian Evidence Act, 1872

Basis	Section 64 BSA	Section 66 Indian Evidence Act
Subject	Rules as to notice to produce	Rules as to notice to produce
Connected provision	Section 60(a) BSA	Section 65(a) Indian Evidence Act
Person receiving notice	Party holding the document or their advocate or representative	Party holding the document or their attorney or pleader
Exceptions	Six express exceptions, with court discretion to dispense with notice	Substantially corresponding six exceptions, with court discretion
Current status	In force from 1 July 2024	Repealed from 1 July 2024, subject to applicable savings and transitional provisions

The principal change is the renumbering and updating of terminology within the new statutory framework. Section 64 BSA must be read with Section 60 BSA rather than with the former Section 65 as if the old numbering still applied.

Related Provisions of the Bharatiya Sakshya Adhiniyam, 2023

• Section 56: Deals with proof of contents of documents.
• Section 57: Explains primary evidence.
• Section 58: Identifies categories of secondary evidence.
• Section 59: Establishes the general rule concerning proof of documents by primary evidence.
• Section 60: Specifies cases in which secondary evidence relating to documents may be given.
• Section 64: Provides the rules governing notice to produce.
• Section 63: Deals with the admissibility of specified electronic or digital records and the applicable certificate requirements.

For examination purposes, Sections 60 and 64 should be studied together. Section 60 identifies the circumstances in which secondary evidence may be given, while Section 64 prescribes the notice requirement for the particular situation covered by Section 60(a).

Important Points for Law Students and Judiciary Aspirants

• Section 64 BSA deals with rules as to notice to produce.
• It corresponds to Section 66 of the Indian Evidence Act, 1872.
• The provision is specifically connected to Section 60(a) BSA.
• Notice must ordinarily be given before secondary evidence is offered in cases covered by Section 60(a).
• The notice must follow the form prescribed by law or, where none is prescribed, be reasonable in the circumstances.
• The proviso lists six situations in which notice is unnecessary.
• The court may also dispense with notice in another appropriate case.
• Giving notice does not automatically make secondary evidence admissible.
• The party relying on secondary evidence must still establish the applicable statutory conditions.
• K. Krishna Appala Naidu v. B. Sohanlal and R. Dhanasekaran v. N. Dhakshinamoorthy discuss the corresponding predecessor provisions.

Frequently Asked Questions (FAQs)

1. What is Section 64 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 64 lays down the rules as to notice to produce. It ordinarily requires a party seeking to use secondary evidence in circumstances covered by Section 60(a) to give notice to the person holding the original document.

2. Which section of the Indian Evidence Act corresponds to Section 64 BSA?

Section 64 BSA corresponds to Section 66 of the Indian Evidence Act, 1872.

3. Is notice to produce always compulsory?

No. Section 64 identifies six exceptions in which notice is unnecessary and also permits the court to dispense with notice in another appropriate case.

4. What happens if the opposing party does not produce the original document?

Non-production after proper notice may allow the party seeking to rely on secondary evidence to invoke Section 60(a) BSA. The party must still establish the other applicable conditions for admitting secondary evidence.

5. Does a photocopy automatically become admissible after notice is served?

No. Notice alone does not establish the admissibility of a photocopy. The party must satisfy the requirements governing secondary evidence, including the relevant provisions of Sections 58–60 BSA.

6. Is notice required if the opposing party admits that the original document is lost?

Section 64(e) provides that notice is not required where the opposing party or their agent has admitted the loss of the document. The admissibility of the proposed secondary evidence must still be assessed under the applicable law.

7. Why are Sections 60 and 64 BSA studied together?

Section 60 specifies when secondary evidence may be given, while Section 64 governs notice to produce in the particular circumstances described in Section 60(a). Reading them together helps explain the procedural requirements for proving a document when the original is not produced.

Conclusion

Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a procedural safeguard for proving the contents of documents through secondary evidence when the original is held by another person. Its central rule is that notice to produce must ordinarily precede reliance on secondary evidence in cases covered by Section 60(a), unless a statutory exception applies or the court dispenses with notice. For examinations and practical legal work, the most important task is to distinguish the general notice requirement from the six exceptions and to remember that notice alone does not establish the admissibility of secondary evidence.

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