Section 162-164 lay down the rules as to production and translation of documents.
Section 162 of the Indian Evidence Act, 1872 speaks about, “Production of document”. This section says that a witness when summoned to produce a document must produce it if he has it in his possession. The principle underlying this section is similar to the English rule ‘Subpoena Duces Tecum’ which means that when a witness is summoned by the court to appear with some documents in the court. If there are any objections with regard to its production or admissibility, then, the court to decide the validity of the objection. To enable the court to do so, it may hear the parties and may also ask them to produce evidence touching upon the validity or otherwise of the objections. The Court may also inspect the document unless it refers to matters of the state.
In case the documents need to be translated, it can be done so by a translator who must keep the contents confidential. If the translator leaks the content of the said document, he shall be charged under Section 166, IPC for disobeying the law.
Section 162 makes it obligatory on the witness to produce the document summoned by the court and he has no right to decide whether the document shall be produced. Order XVI, Rule 6 of the C.P.C also provides that a person may be summoned to produce a document without being summoned to give evidence. Section 139 of the Evidence Act similarly provides that a person summoned to produce a document does not become a witness by the mere fact that he produces the document and he cannot be cross-examined.
Matters of the state: - Under Section 162, the court may inspect the document to determine on its admissibility, unless it refers to matters of State. Reading the Section 123 and 162 together, it becomes clear that the court cannot hold an enquiry into the possible injury to the public interest which may result from the disclosure of the document in respect of which privilege is claimed under Section 123. That is a matter for the authority concerned to decide.
But, the court is competent to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether evidence relates to an affair of State under Section 123 or not.
Section 163 of the Indian Evidence Act, 1872 speaks about, “Giving, as evidence, of document called for and produced on notice”. This section says that where a party has given a notice to another to produce a document and the document has been produced and has been inspected by that party, he is bound to use it as evidence if the party producing the document so desires.
This section applies not only to civil cases but also to criminal trials. It has no application where the document has already been produced before the court by any party to the case. The section comes into play when the party in possession or power of the document has not produced the same in the court and runs the risk of adverse inference being drawn against him or being debarred from producing the document in the court at a later stage of the proceedings unless his opponent becomes instrumental in seeking production and inspection of the document.
There is no authority for the proposition that the evidence, which is admitted under this section, must be deemed to be conclusive against the party who has inspected the document. A document so produced becomes ‘evidence’ only when it is produced for the inspection of the court and only then the court will pronounce upon its relevancy, admissibility and will call upon the party on whom the burden of proof lies to prove the truth of its contents and its genuineness. Cross-examination could be used for that purpose.
Section 164 of the Indian Evidence Act, 1872 speaks about, “Using, as evidence, of document, production of which was refused on notice”. This section says that where a party has been called upon by the other party to produce a document but the request was refused, such refusing party is no longer at liberty to produce the document of his own. It would require consent of the other party or permission of the court to enable him produce the document.
Where an opponent in possession of a document refuses to produce it on demand, he is afterwards forbidden to produce the document to contradict other party’s secondary evidence. This is in one sense a proper penalty for unfair tactics or refusal to cooperate with the judicial process. The section does not enable a party to seek actual production of the document. It contemplates only a disability the fear of which may perhaps bring about a positive response. This section may not perhaps apply to criminal proceedings.