An Analysis of Section 162 of the Indian Evidence Act, 1872: Production of Documents and Judicial Adjudication of Objections

An Analysis of Section 162 of the Indian Evidence Act, 1872: Production of Documents and Judicial Adjudication of Objections

Introduction

Section 162 of the Indian Evidence Act, 1872 (hereinafter "Evidence Act"), occupies a significant position in the procedural framework governing the adduction of evidence, particularly documentary evidence, in judicial proceedings in India. This provision outlines the duty of a witness summoned to produce a document, the mechanism for raising objections to its production or admissibility, and the court's power to decide on such objections, including its authority to inspect documents, subject to certain exceptions, notably concerning "matters of State." This article seeks to provide a comprehensive analysis of Section 162 of the Evidence Act, its interplay with other statutory provisions, particularly Section 123 of the Evidence Act concerning privilege for unpublished official records relating to affairs of State, and its interpretation through various judicial pronouncements. It is also imperative to distinguish Section 162 of the Evidence Act from the similarly numbered Section 162 of the Code of Criminal Procedure, 1973 (hereinafter "CrPC"), which deals with a distinct subject matter – statements made to police officers during investigation.

The Text and Scope of Section 162, Indian Evidence Act, 1872

Section 162 of the Evidence Act is titled "Production of documents" and reads as follows:

"A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
Translation of documents.—If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860)."

The section can be broken down into three primary limbs as identified by the Supreme Court in State of U.P. v. Raj Narain and Others[4]:

  1. The first limb mandates a witness summoned to produce a document to bring it to court if it is in their possession or power, irrespective of any objections to its production or admissibility. The court is then tasked with deciding the validity of such objections.
  2. The second limb empowers the court, if it deems fit, to inspect the document to determine its admissibility. However, this power of inspection is curtailed if the document "refers to matters of State." In such cases, or otherwise, the court may take other evidence to decide on admissibility.
  3. The third limb deals with the translation of documents and the obligation of secrecy on the translator if so directed by the court.

The Andhra Pradesh High Court in Rajesh Bhatia And Others v. G. Parimala And Another[9] reiterated these procedural principles, emphasizing that the primary object of proceedings under this section is to secure the document for use in evidence. The court's role in adjudicating objections is central to this provision.

Interplay with Section 123 of the Evidence Act: The Doctrine of State Privilege

A crucial aspect of Section 162 of the Evidence Act is its interaction with Section 123, which pertains to "Evidence as to affairs of State." Section 123 prohibits the giving of evidence derived from unpublished official records relating to any affairs of State, except with the permission of the head of the department concerned. The expression "matters of State" in the second limb of Section 162 of the Evidence Act is considered identical to "affairs of State" in Section 123.[3], [4]

Judicial Scrutiny of Privilege Claims

The Supreme Court in State of Punjab v. Sodhi Sukhdev Singh[3] and subsequently in State of U.P. v. Raj Narain and Others[4] laid down authoritative principles regarding claims of state privilege. While the head of the department has the discretion to grant or withhold permission for the production of documents relating to affairs of State, the court is not entirely excluded from the process. The court has the authority to determine whether the document in question indeed relates to "affairs of State" and thus falls within the privileged category.[3], [15], [20]

In Sodhi Sukhdev Singh[3], the Court held that while it cannot inspect documents claimed to be privileged under Section 123 as pertaining to "affairs of State," it can evaluate the validity of the privilege claim based on an affidavit provided by the state official. Public interest, encompassing national defense, public security, and the efficient functioning of government, takes precedence. This was echoed in State of U.P. v. Raj Narain[4], where the Court emphasized the need to balance the state's interest in protecting sensitive information with the public's right to transparency and the administration of justice. The Court asserted its authority to independently assess privilege claims to prevent abuse, even while acknowledging the Executive's prerogative.[4]

The Bombay High Court in Lady Dinbai Dinshaw Petit & Others v. The Dominion Of India & Another[15] observed that before privilege can be claimed under Section 123, there must be an adjudication that the documents are indeed official records relating to affairs of State, and their disclosure would injure public interests. Similarly, the Madhya Pradesh High Court in Brijnath v. State[20] noted that it is only documents whose disclosure would be detrimental to public interest that are protected, and while the court cannot inspect such documents under Section 162, Evidence Act, the duty of deciding the question of whether they relate to "affairs of State" still rests with the court under the first paragraph of Section 162.

Role of Affidavits

The necessity of a formal claim of privilege, typically through an affidavit by the head of the department concerned, was stressed in State of U.P. v. Raj Narain[4]. This affidavit ensures that the claim is deliberate and not frivolous. The Court noted that if the affidavit is found unsatisfactory, a further affidavit may be called for, or in a proper case, the person making the affidavit can be summoned for examination.[4] This procedural safeguard is vital for the court to exercise its limited power of inquiry into the nature of the document.

The case of S.P Gupta v. Union Of India And Another[1], while primarily dealing with constitutional issues affecting the judiciary's independence, arose in a context where claims of privilege over government documents were significant. Though not directly interpreting Section 162, it underscores the tensions that can arise when the government seeks to withhold information in matters of public importance, a scenario where Section 123 and Section 162 of the Evidence Act become critical.

Distinguishing Section 162 of the Evidence Act from Section 162 of the Code of Criminal Procedure, 1973

It is of paramount importance to distinguish Section 162 of the Evidence Act from Section 162 of the CrPC. The latter deals with statements made by any person to a police officer in the course of an investigation. Section 162(1) CrPC mandates that if such a statement is reduced to writing, it shall not be signed by the maker, nor shall such statement or any record thereof be used for any purpose, save as provided in the proviso, at any inquiry or trial in respect of any offence under investigation at the time such statement was made.

The Calcutta High Court in Emperor v. Ajit Kumar Ghosh And Others Accused[6] clarified that Section 162 CrPC amends the ordinary law of evidence specifically as applicable to statements made to the police during investigation and their written records. The Supreme Court in SIYARAM SIRDAR v. STATE OF CHHATTISGARH[12] reiterated that statements recorded under Section 161 CrPC are not substantive pieces of evidence. Their use is primarily limited to:

  • Contradicting a witness by the accused under Section 145 of the Evidence Act.
  • Contradicting such witness by the prosecution, but only with the leave of the Court.
  • Re-examination of the witness, if necessary, to explain matters referred to in cross-examination.

The proviso to Section 162(1) CrPC allows the use of such statements to contradict a prosecution witness in the manner provided by Section 145 of the Evidence Act. This was affirmed in Prakash Chand v. State (Delhi Administration)[18]. The Karnataka High Court in Muninajappa And Others, Accused- v. State Of Mysore[11], [13] discussed the procedure for using such statements for contradiction, including establishing omissions as contradictions, though it cautioned against marking the entire statement.

Section 162(2) CrPC carves out exceptions, stating that nothing in the section shall apply to any statement falling within the provisions of Section 32(1) of the Evidence Act (e.g., dying declarations) or affect the provisions of Section 27 of the Evidence Act (discovery statements). This has been highlighted in cases like Pradeep Bisoi Alias Ranjit Bisoi v. State Of Odisha[5] and Sri Bhagwan v. State Of Uttar Pradesh[7]. The historical evolution and the interplay between Section 27 Evidence Act and Section 162 CrPC were discussed in Deoman Upadhyaya v. State[22], noting the Privy Council's decision in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) which held that "any person" in Section 162 CrPC includes an accused person.

In The King-Emperor v. Nilakanta Alias Brahmachari And Ors.[8], an early interpretation of the then Section 162 CrPC suggested that the bar was on the written record, not necessarily on oral evidence of the statement. However, the current understanding, as seen in numerous cases, is that Section 162 CrPC imposes a comprehensive bar on the use of such statements as substantive evidence, whether oral or written, subject to specified exceptions.[10], [14]

The Supreme Court in Commissioner Of Police, New Delhi v. Narender Singh[16] clarified an important distinction: the embargo contained in Section 25 of the Evidence Act (confession to police officer not to be proved) and Section 162 of the CrPC are not applicable in departmental proceedings in the same way they are in criminal trials. This allows for a broader consideration of evidence, including confessions made during investigation, in disciplinary matters.

Further, in Mahesh Kumar v. State Of Rajasthan[19], the Supreme Court noted that even if a statement is hit by Section 162 CrPC or Section 25/26 Evidence Act for the purpose of proving the offence against an accused, the confessional part leading to discovery under Section 27 Evidence Act, or other parts of statements, might be admissible for collateral purposes like determining ownership or disposal of property under Section 452 CrPC.

The case of Ibrahim Revisionist; v. Nan Hoo Opp. Party.[21] mentions Section 162 Evidence Act in the context of sketch maps prepared during investigation. However, the Supreme Court cases cited therein (AIR 1956 SC 526 - Baladin v. State of U.P.; AIR 1962 SC 399 - Santa Singh v. State of Punjab) primarily deal with statements recorded by police officers in such documents (like site plans or notes thereon) being hit by Section 162 of the CrPC, rather than Section 162 of the Evidence Act rendering the map itself inherently inadmissible if its accuracy is otherwise proven.

Procedural Aspects of Document Production under Section 162, Evidence Act

As outlined in Rajesh Bhatia And Others v. G. Parimala And Another[9], Section 162 of the Evidence Act lays down a clear procedure:

  1. A witness summoned must produce the document if it is in their possession or power.
  2. Any objection to production or admissibility is to be raised at this stage.
  3. The Court decides the validity of the objection.
  4. The Court may inspect the document (unless it refers to matters of State) or take other evidence to determine admissibility.

This judicial oversight ensures that the process of document production is fair and that valid objections are duly considered. The court's power to inspect is a key tool in this determination, balanced by the constraints related to state privilege.

The principles of discovery and inspection, while having their own procedural rules (e.g., under the Code of Civil Procedure, 1908), find a point of convergence with Section 162 of the Evidence Act when a summoned document's production is contested. The case of R.K Jain v. Union Of India And Another[2], dealing with the Right to Information Act, 2005 (RTI Act), highlights a different but related facet of information access. While Section 162 of the Evidence Act governs production in court, the RTI Act provides a broader mechanism for citizens to access information from public authorities, subject to exemptions like Section 8(1)(j) for personal information. The principles of balancing public interest against privacy or confidentiality, though applied differently, are common threads.

Conclusion

Section 162 of the Indian Evidence Act, 1872, is a cornerstone provision governing the production of documents in court and the judicial determination of objections thereto. Its most complex and litigated aspect involves its interplay with Section 123 of the Evidence Act, concerning privilege for "affairs of State." The judiciary, through landmark pronouncements like State of Punjab v. Sodhi Sukhdev Singh[3] and State of U.P. v. Raj Narain[4], has meticulously delineated the balance between the executive's need to protect sensitive state information and the judiciary's duty to ensure a fair trial and uphold the administration of justice. The requirement of an affidavit and the court's power to inquire into the character of the document (though not to inspect "matters of State" documents) are vital safeguards.

It is equally crucial to differentiate Section 162 of the Evidence Act from Section 162 of the CrPC, which serves an entirely different purpose by regulating the use of statements made to the police during investigation. While both are numbered "162," their scope, object, and application are distinct, a distinction consistently upheld and clarified by the courts. A clear understanding of Section 162 of the Evidence Act is essential for legal practitioners and courts to navigate the procedural intricacies of compelling documentary evidence and adjudicating claims of privilege or other objections to admissibility, thereby ensuring that the pursuit of truth in judicial proceedings is conducted fairly and in accordance with established legal principles.

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