Report No. 185

Section 131

This Section was amended by Act 21/2000 and refers to 'production of documents or electronic records which another person, having possession, could refuse to produce'. It reads as follows:

"131. No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production."

Section 131 refers to documents of another person in the possession of a witness i.e. documents which, through physically in the possession of the witness, are indeed the property of another person who has a right to object to their production. It extends to the agent e.g. the lawyer of the owner, servant or trustee, mortgagee etc., i.e. possessor of the document, the same privilege which is enjoyed by the person whose property it is. Of course, if the owner gives consent, the witness having possession, cannot refuse to produce this document.

The Section, on a plain reading, does not, however, reveal that it means what we have stated in the last paragraph. In the 69th Report it was rightly pointed that the person in possession is referable to one having 'temporary possession'. In our view, 'temporary' is a word of imperfect connotation and should be omitted. The word 'control' should be also omitted. It was also recommended that the word 'compellable' should be replaced by the word 'permitted' for otherwise the privilege may be understood to mean the privilege of the person in possession such as the agent who could waive the privilege. But, in reality, the agent cannot be allowed to waive the privilege of the principal.

We agree that Section 131 should be so revised. Section 131 as proposed in para 69.12 of the 69th Report reads as follows:

"131. No one shall be permitted to produce documents in his temporary possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person consents to their production."

But, in our view, the words 'any person' does not convey the real principle behind the Section. We are of the view that the following format will be better:

"131. Production of documents or electronic records which another person, having possession could refuse to produce.- No person who is in possession or control of documents or electronic records belonging to another, shall be compelled to produce the said documents or electronic records, if the person to whom they belonged, would have been entitled to refuse to produce them if they were in the possession or control of that person:

Provided that the person in possession or control of such documents or electronic records belonging to another, may be compelled to produce them, if the person to whom they belong, consents to their production."

We recommend accordingly.