Introduction
A police witness pauses mid-testimony, opens a diary, and reads out a date and detail they say they'd otherwise have forgotten. The moment they do that, does the defence get to see the page they just read from — or does the witness get to borrow the document's credibility while keeping its contents hidden?
Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the answer is settled by a single, tightly worded rule: Section 164, in Chapter X ("Of the Examination of Witnesses"). It is the shortest of the memory-refreshing provisions, but it carries outsized practical weight, because it is the section that actually opens the document to the other side. This article explains what Section 164 requires, how it connects to the two provisions immediately before it, and why using a document to refresh memory is a decision a witness — and the party who called them — cannot fully take back.
164. Right of adverse party as to writing used to refresh memory.
Any writing referred to under the provisions of the two last preceding sections shall be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.
Section 164 Explained: The Price of Refreshing Memory
Section 164 does not stand alone — its opening words, "the two last preceding sections," point straight at Section 162 (which lets a witness refresh memory by referring to a contemporaneous writing) and Section 163 (which lets a witness testify to facts recorded in such a writing even without independent recollection). Together, Sections 162 to 164 form a single, deliberate sequence: a witness may lean on a document to steady their testimony, but the moment they do, the adverse party gets a statutory right to see exactly what they leaned on.
The mechanics are simple. Once a witness has referred to a writing under Section 162 or Section 163, the adverse party can require that the writing be produced and shown to them. From there, the adverse party may cross-examine the witness on it — testing whether the document actually says what the witness claims, whether it was really made when the witness says it was, and whether anything in it undercuts rather than supports the testimony just given.
The Trial Sequence: From Refreshment to Cross-Examination
Section 164 operates as the final, mandatory step in a three-part chain. Skipping it — letting a witness refresh memory from a document the other side never sees — would defeat the entire purpose of allowing refreshment in the first place, since the whole point of cross-examination is to test what the witness actually relied on.
Worked Example: The Case Diary in the Witness Box
The clearest and most frequently litigated illustration of Section 164 in Indian courts involves a police officer testifying from a case diary. An investigating officer, months or years after an incident, is unlikely to remember every date, statement, and step of an investigation unaided — so it is common for such a witness to glance at the diary while giving evidence, refreshing their memory on specific entries.
The Supreme Court has repeatedly applied this exact framework to case diaries. In Balakaram v. State of Uttarakhand (2017), the Court confirmed that once an investigating officer uses diary entries to refresh memory — or the Court itself uses them to test the officer's testimony — the disclosure-and-cross-examination scheme now carried forward in Section 164 comes into play. More recently, in Shailesh Kumar v. State of Uttar Pradesh, the Court reaffirmed that an accused is entitled to cross-examine an investigating officer on the specific case-diary portions the officer relied on to refresh memory. The principle is consistent: the confidentiality that ordinarily protects a case diary from general disclosure gives way, to the extent actually used, the moment it is used to refresh a witness's memory in court.
Why the Disclosure Right Is Limited, Not Unlimited
Section 164 does not throw open a witness's entire file the instant they glance at one page of it. The right attaches specifically to "any writing referred to" under Sections 162 or 163 — meaning the portion actually used to refresh memory or testify. Courts applying the equivalent case-diary jurisprudence have been careful to confine disclosure to the parts the witness relied on, not the whole document, preserving whatever confidentiality still legitimately attaches to material beyond that specific reference.
This calibration matters in practice. A police case diary, for instance, is otherwise protected from routine defence inspection under the procedural code governing investigations — a confidentiality rule that exists to protect ongoing investigations and source material. Section 164 does not repeal that broader protection; it creates a narrow, use-triggered exception limited to whatever the witness actually put in front of the court to steady their own testimony.
Beyond Case Diaries: A Narrow but General Waiver Principle
Case diaries are the most litigated illustration of Section 164, but the principle underneath it is general, not confined to police witnesses. Any witness — an expert relying on working notes, a company officer relying on internal records, a treating doctor relying on case notes — triggers the same disclosure obligation the moment they use a document under Section 162 or 163 to steady their testimony. The section does not ask who the witness is; it asks only whether the writing was actually referred to for that purpose.
This is why the rule is often described as a narrow, use-triggered waiver rather than a blanket disclosure duty. A document that would otherwise stay confidential — internal correspondence, a personal diary, working papers — does not become discoverable simply because it exists somewhere in a witness's possession. It becomes disclosable only once the witness has actually leaned on it in the witness box. Counsel calling an expert or a records-custodian witness should treat this as a live risk assessment before trial: if a document contains anything the client would rather not have tested in cross-examination, that document should not be the one the witness reaches for to refresh memory.
Section 164 BSA vs. Section 161 IEA: A Rule Carried Forward Verbatim
Section 164 corresponds to Section 161 of the Indian Evidence Act, 1872 (IEA), and the two are, in substance, identical — right down to the "two last preceding sections" cross-reference structure, since the underlying trio of refreshing-memory provisions was renumbered together as a block rather than individually rearranged.
| Element | IEA, 1872 (Section 161) | BSA, 2023 (Section 164) |
|---|---|---|
| Right to require production | Adverse party may require the writing to be shown | Unchanged |
| Right to cross-examine on it | Optional, at the adverse party's discretion | Unchanged |
| Scope of the trigger | Ties to the two preceding sections (refreshing memory; testimony from a document) | Same structural cross-reference, renumbered as Sections 162 and 163 |
Because the rule is unchanged, the substantial body of case law built up under the IEA — including the case-diary line of authority discussed above — continues to apply directly to Section 164 prosecutions and trials conducted under the BSA.
Who Section 164 Actually Affects
The provision shapes trial strategy for a wide range of participants:
- Investigating officers and other witnesses who plan to refer to notes, diaries, or records while testifying should expect that reliance to open the specific portion used to inspection and cross-examination.
- Prosecutors and counsel calling such witnesses need to review any document a witness intends to use for refreshment in advance, since anything inconsistent in it becomes available to the opposing side the moment it is used.
- Defence counsel and opposing parties gain a concrete, enforceable right — not a discretionary courtesy — to see and cross-examine on exactly what a witness relied on.
- Trial judges must ensure the disclosure is actually made when requested, and that cross-examination on the writing is permitted, since refusing either undermines the fairness the section is designed to protect.
- Appellate counsel reviewing a conviction should check whether a memory-refreshing document was properly disclosed and made available for cross-examination, since a failure here can affect how much weight the underlying testimony deserves.
Key Takeaways
- Refreshing memory is not cost-free: once a witness relies on a writing under Section 162 or 163, Section 164 gives the adverse party a right to see it.
- The right includes cross-examination: the adverse party may not just inspect the writing but question the witness on its contents.
- Disclosure is use-triggered and use-limited: it attaches to the specific portion the witness actually referred to, not the entire underlying document.
- Case diaries are the classic real-world application: Indian courts, including in Balakaram v. State of Uttarakhand and Shailesh Kumar v. State of Uttar Pradesh, have consistently applied this rule to police witnesses refreshing memory from investigation diaries.
- The rule is unchanged from 1872: Section 164 BSA carries forward Section 161 IEA without substantive modification, so existing precedent remains directly applicable.
Conclusion
Section 164 completes the trio of provisions governing memory-refreshment by making sure the tool cannot be used one-sidedly. A witness — and the party who called them — may lean on a document to steady testimony, but that choice comes with an automatic, enforceable obligation to let the other side see and test exactly what was relied on.
For litigants and counsel, the practical takeaway is straightforward: know what is in any document a witness might reach for on the stand before they reach for it. Once Section 162 or 163 has been invoked, Section 164 ensures the adverse party gets to look at the same page — and ask the questions that follow from it.