Picture a contract dispute where the single most important document — the signed agreement — is not in your client's file but in the opposing party's almirah. You know it exists, you know roughly what it says, but you cannot physically produce it. Can you simply lead a photocopy or oral account of its contents and move on? Not straight away. Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) stands in the way, and it does so deliberately: before a court will listen to secondary evidence of a document that lies in your opponent's hands, that opponent must first be formally asked to produce the original.
64. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in clause (a) of section 60, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate or representative, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(a) when the document to be proved is itself a notice;
(b) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(d) when the adverse party or his agent has the original in Court;
(e) when the adverse party or his agent has admitted the loss of the document;
(f) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
Section 64 is not a standalone rule. It is the procedural gatekeeper for one specific route into secondary evidence — the route opened by clause (a) of Section 60, which allows secondary evidence when the original sits with the adverse party or with someone beyond the court's reach. In that situation the law does not let a litigant leap directly to a copy. It insists on an intermediate step: serve a notice to produce, give the holder a fair opportunity to bring the original, and only when they fail to do so does the door to secondary evidence open.
What the section carries forward, and the one word it changes
Section 64 reproduces Section 66 of the Indian Evidence Act, 1872 (IEA) almost exactly. The scheme, the proviso, and all six enumerated exceptions are identical in substance. The single deliberate change is a modernisation of vocabulary: where the 1872 Act spoke of serving notice on the party's "attorney or pleader," the BSA speaks of the party's "advocate or representative." It is a small edit, but it fits a pattern running through the whole recodification — retiring colonial-era professional labels in favour of the terminology of the Advocates Act, 1961.
| Aspect | Section 66, IEA 1872 | Section 64, BSA 2023 |
|---|---|---|
| On whom notice may be served | The party, or his "attorney or pleader" | The party, or his "advocate or representative" |
| Trigger for the notice requirement | Secondary evidence under Section 65(a) | Secondary evidence under Section 60(a) |
| Six exceptions in the proviso | Present, clauses (a)–(f) | Present, clauses (a)–(f), unchanged |
The change in cross-reference — from Section 65(a) IEA to Section 60(a) BSA — is only a renumbering artefact, not a change in law. Chapter V of the BSA renumbered the documentary-evidence provisions, so the section that lists the cases for secondary evidence is now Section 60 rather than Section 65. The substance to which Section 64 attaches is exactly the same.
Why the notice exists at all
The requirement is a limb of the best evidence rule. The law prefers the original document over any copy of it, and it will not treat the original as unavailable merely because it happens to rest with the other side. A notice to produce is the mechanism that converts "the other side has it" into "the other side has been asked and declined." Only then is non-production established, and only then does the case fall genuinely within Section 60(a). Serving the notice also serves fairness: the adverse party is warned in advance that this document is in issue and gets a chance to produce it rather than being ambushed by a version of its contents they never had the opportunity to test.
The six situations where no notice is needed
The proviso keeps the rule from becoming an empty formality. In six situations a notice would achieve nothing, so the law dispenses with it. Where the document to be proved is itself a notice, serving a notice to produce a notice is circular. Where the nature of the case already tells the adverse party they will have to produce it — a suit on a promissory note, for instance — they are on notice by implication. Where the adverse party got the original by fraud or force, or has already admitted losing it, or is holding it in court, or is simply beyond the court's process, a formal notice serves no purpose. And the opening words of the proviso leave the court a residual discretion to excuse notice "in any other case in which the Court thinks fit to dispense with it," so the six clauses illustrate rather than exhaust the exceptions.
How courts have applied the requirement
The Supreme Court has consistently treated the statutory conditions for secondary evidence as mandatory foundations, not optional niceties. In J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, the Court refused to accept a photostat copy where no foundation had been laid for secondary evidence, holding that non-production of the original must first be accounted for by bringing the case within one of the statutory clauses — the very clause that, for documents in the adverse party's possession, is completed by the notice under this section. The judgment expressly ties the Section 60(a) route (then Section 65(a) IEA) to the notice mechanism now housed in Section 64.
That discipline was reinforced in Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483, where the Court held that the preconditions for leading secondary evidence must be established before such evidence is admitted — a party must show that the original could not be produced despite genuine effort, for reasons beyond its control. Read together, the two decisions make the practical point plain: secondary evidence is a concession, not a shortcut, and Section 64 is one of the checkpoints a litigant must clear before the concession is available.
Key Takeaways
- Gatekeeper for one route: Section 64 governs only secondary evidence under Section 60(a) — where the original lies with the adverse party or someone beyond the court's reach.
- Notice first, copy later: the holder must be formally asked to produce the original; only on their non-production does secondary evidence become admissible.
- One vocabulary change: "attorney or pleader" in Section 66 IEA becomes "advocate or representative" in Section 64 BSA — modernised terminology, identical effect.
- Six exceptions plus a discretion: notice is dispensed with in the six clauses of the proviso and in any other case the court thinks fit.
- Not a mode of proof: the notice unlocks secondary evidence but proves nothing by itself; existence, execution, and contents still need proving.
Conclusion
Section 64 is a quiet but essential piece of courtroom procedure. It ensures that a litigant cannot bypass an original document simply because it is inconvenient to obtain, and it protects the adverse party from being confronted with an untested copy of a document they were never asked to produce. Carried forward almost verbatim from Section 66 of the 1872 Act — with only "attorney or pleader" updated to "advocate or representative" — it continues to anchor the best evidence rule in day-to-day practice. Whenever the original is in the other side's hands, the notice to produce is the first move, not an afterthought.