Introduction
An accountant is testifying about a transaction from three years ago. Their memory is hazy — they remember the broad shape of what happened but not the precise figures. Can they simply pull out their old ledger, look at the entry, and then answer the question from what the ledger jogs loose in their mind?
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) says yes, within careful limits — and Section 162, in Chapter X ("Of the Examination of Witnesses"), is the provision that sets those limits. It is the first, and most detailed, of the three memory-refreshing provisions in this cluster, and it does more than just permit a witness to glance at a document. It defines precisely which writings qualify, when a copy will do instead of the original, and how an expert witness is treated differently from a fact witness. This article walks through each of those rules and what they mean in practice.
162. Refreshing memory.
(1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
(2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
Provided further that an expert may refresh his memory by reference to professional treatises.
Section 162 Explained: Two Ways Into the Same Right
Subsection (1) actually creates two separate routes to the same privilege, and it is easy to conflate them. The first is the straightforward case: a witness refers to a writing they made themselves, at the time of the transaction or soon enough afterwards that the Court accepts the events were still fresh in their memory. The second is less obvious: a witness may also refer to a writing made by someone else entirely — provided the witness read it within that same window of freshness, and knew at the time that it was correct.
That second route matters because memory-refreshing is not limited to a witness's own notes. A junior officer's report, read and verified by a senior officer while the events were still fresh, can refresh the senior officer's memory just as validly as their own notes could — so long as the "knew it to be correct" condition is genuinely satisfied, not just assumed.
The Contemporaneity Requirement
The word doing the heaviest lifting in subsection (1) is "contemporaneous." A writing made months after the event, reconstructed from general recollection, does not qualify — the whole premise of the section is that the writing captured the transaction while it was still genuinely fresh, making it a reliable prompt rather than a rehearsed script.
The Supreme Court applied exactly this reasoning in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, confirming that a witness may refresh memory by referring to account books and similar writings made contemporaneously with the transactions they record. The case underlines that the provision is not a loophole for reading a script into the record — it is a tool for reviving memory that genuinely once existed and was captured close to the event.
When a Copy Will Do
Subsection (2) softens an otherwise strict rule. Ordinarily, a witness relying on a document to refresh memory should be working from the original — but originals get lost, get filed in inaccessible archives, or belong to institutions unwilling to release them for a hearing. Section 162(2) lets a witness refer to a copy instead, but only with the Court's permission, and only where the Court is satisfied there is sufficient reason the original cannot be produced.
This is a genuine gatekeeping function, not a formality. "The original is inconvenient to bring" is not the same as "there is sufficient reason for non-production" — the Court has to be satisfied the absence of the original is justified, not merely convenient for the party calling the witness.
The Expert's Special Route: Professional Treatises
The second proviso to subsection (2) does something distinct from the rest of the section: it lets an expert witness refresh memory by reference to professional treatises — textbooks, technical manuals, established works in the expert's field — rather than a document tied to the specific transaction in dispute.
This makes sense once the underlying logic of expert testimony is considered. A fact witness refreshes memory about something they personally experienced. An expert witness, by contrast, is often being asked to recall settled professional knowledge — dosage thresholds, engineering tolerances, accounting standards — that they know exists but cannot recite word-for-word from memory under pressure. Letting an expert consult the treatise that states the standard, rather than forcing them to guess, produces more accurate testimony without compromising its reliability, since the underlying source is an established, citable professional work rather than a one-off personal account.
Worked Example: The Two Provisos in the Same Trial
Consider a medical negligence case. A treating nurse is asked about vital-sign readings recorded during a procedure years earlier. The hospital's paper chart has since been archived off-site and cannot be produced quickly — the Court, satisfied this is a genuine logistical constraint rather than a convenient excuse, permits the nurse to refer to a certified copy under the first proviso.
Later in the same trial, an expert cardiologist is asked about the standard threshold at which a particular reading should have triggered intervention. Rather than relying purely on memory, the expert refers to a recognised clinical treatise under the second proviso — refreshing their recollection of the professional standard itself, not a personal record of this specific patient.
Section 162 BSA vs. Section 159 IEA: An Unbroken Rule
Section 162 corresponds to Section 159 of the Indian Evidence Act, 1872 (IEA), and every element — the contemporaneity test, the third-party-writing route, the copy-with-permission proviso, and the professional-treatises proviso for experts — carries over without substantive change.
| Element | IEA, 1872 (Section 159) | BSA, 2023 (Section 162) |
|---|---|---|
| Own contemporaneous writing | Permitted | Unchanged |
| Another person's writing, read and verified | Permitted | Unchanged |
| Copy in place of original | With Court's permission, on sufficient reason | Unchanged |
| Expert and professional treatises | Permitted | Unchanged |
Because the section is carried forward intact, the established IEA case law on what counts as sufficiently contemporaneous, and on when non-production of an original is genuinely justified, remains fully applicable to Section 162 proceedings under the BSA.
Who Section 162 Actually Affects
- Fact witnesses relying on personal notes, diaries, or reports need those writings to meet the contemporaneity test, or risk having the reference disallowed.
- Institutional witnesses relying on a colleague's contemporaneous report must be able to show they actually read and verified it as correct at the relevant time — not merely that it exists in the file.
- Parties seeking to use a copy should be ready to justify the original's absence concretely, since Section 162(2) is a genuine permission requirement, not a formality.
- Expert witnesses gain a specific, separate route to refresh memory using treatises and professional literature, distinct from the transaction-specific writings fact witnesses rely on.
- Trial judges must actively assess both the contemporaneity of a writing and the sufficiency of any justification for using a copy, rather than treating either as automatic.
Key Takeaways
- Two separate writings can trigger the right: a witness's own contemporaneous notes, or another person's writing read and verified at the time.
- Contemporaneity is the core test: the writing must have been made at, or soon enough after, the transaction that the Court accepts it was made while events were fresh.
- Copies require real justification: the Court must be satisfied there is sufficient reason the original cannot be produced — inconvenience alone is not enough.
- Experts have a distinct route: professional treatises let an expert refresh memory about settled professional knowledge, separate from the transaction-specific writings fact witnesses use.
- The rule is unchanged from 1872: Section 162 BSA carries forward Section 159 IEA in full, including both provisos, so existing case law remains directly applicable.
Conclusion
Section 162 strikes a careful balance: it lets a witness's memory be genuinely aided by a document, without turning testimony into a mere reading of a prepared script. The contemporaneity requirement ensures the writing is a real memory prompt rather than an after-the-fact reconstruction, the copy proviso keeps a workable exception from becoming an easy default, and the professional-treatises proviso recognises that expert testimony draws on a different kind of memory altogether.
For litigants and counsel, the practical lesson is to prepare the record early: contemporaneous notes made properly at the time are what make a witness's later testimony both more accurate and more defensible under Section 162 — waiting until trial to reconstruct events from memory alone leaves a witness with far weaker footing.