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Report No. 88

7.4. Documents not in possession or power.-

Even as regards physical production (in the sense explained above), difficult questions could sometimes arise, where a witness who is summoned to produce a document raises the objection that the document is not in his power. In this context, the crucial words are-"Possession or power". Where the witness is exclusively in control of the document and someone else claims control over it, no difficulty could arise by reason of the first part of section 162. But difficulty may arise when the witness is in joint possession with somebody else, who is not before the court. In such a case, in deciding whether the witness ought to be compelled to "produce" the document, normally the court will act on what is considered to be just in the circumstances.

This aspect came up for consideration in a Bombay case.1 On a review of English cases, it was observed that this matter would depend on whether the defendant, physically speaking, could produce this document and, legally speaking, ought to produce it, there being no other person having an interest distinct from the defendant. But one having the actual custody of documents may be compelled to produce them even though the document is owned by others. Under the first part of section 161, then, the document must be brought into court. The production of the document in evidence will, under the second part be excused where the document is privileged from disclosure.

1. Haji Jahria Kassim v. Haji Casim, 1876 ILR 1 Bom 496 (499).

Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back

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