Report No. 69

Chapter 92

Rights of Adverse Party with Reference to writings used as Aids to or Substitutes for Memory

92.1. Reasons.-

Under section 161, any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it, such party may, if he pleases, cross-examine the witness thereupon. The reasons why the opposite party is permitted to inspect a writing under Section 161, were thus enum erated in a Calcutta case1-

"(i) to secure the full benefit of the witness's recollection as to the whole of the facts;

(ii) to check the use of improper documents;

(iii) to compare his oral testimony with his written statement.

The opposite party has a right to look at any particular writing before or at the moment when the witness uses it to refresh his memory in order to answer a particular question; but if he then neglects to exercise his right, he cannot continue to retain the right throughout the whole of the subsequent examination of the witness."

1. Empress v. Jhaboo Mahton, 1882 ILR 8 Cal 739.

92.2. Effect of cross-examination.-

It would appear that, in England, if the adverse party cross-examines a witness upon any other part of the document, he thereby makes it his own evidence. In India, the section is silent on the subject. But, it would appear, on principle, that the right to cross-examine the witness under section 161 would be confined to those points on which he refreshes his memory by consulting the document. The right to cross-examine would be confined to points necessary to explain that part.

92.3. Verbal change recommended.-

No changes of substance are required in section 161. A verbal point should be mentioned. In this section also, for the word "writing", the word "document" should be substituted, in conformity with section 159, as proposed to be amended, and also in conformity with present section 160. We recommend accordingly.