Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Production of Documents or Electronic Records Which Another Person Could Refuse to Produce (Section 136)

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Production of Documents or Electronic Records Which Another Person Could Refuse to Produce (Section 136)

Introduction
In judicial proceedings, courts often summon documents or electronic records that are in the possession or control of persons other than the actual owner, such as advocates, agents, trustees, or custodians. Section 136 of the Bharatiya Sakshya Adhiniyam, 2023 protects the rights of such persons by ensuring that legal privileges attached to documents or electronic records are not defeated merely because they are held by another person.

Section 136 – Statutory Rule
Section 136 provides that:
A person shall not be compelled to produce any document or electronic record in his possession or under his control, if another person would be legally entitled to refuse to produce it were it in that person’s possession,
unless such other person consents to its production.
In essence:

• Privilege travels with the document, not with the person who holds it.
• A document protected from disclosure does not lose that protection merely because it is held by someone else.

Scope and Object of Section 136(a) Scope of the Provision

• This section was amended to include electronic records, in line with technological developments and the Information Technology framework.
• It is designed to protect:
  • Clients whose documents are held by advocates
  • Principals whose documents are held by agents
  • Beneficiaries whose documents are held by trustees
  • Mortgagors whose documents are held by mortgagees

The key principle is:
If the owner of the document has a right to refuse production, the holder of the document enjoys the same protection.
Thus, agents and custodians cannot be compelled to produce documents when the principal himself could have lawfully refused.

Rationale Behind Section 136

• Prevents circumvention of privilege
• Protects confidential and privileged relationships
• Upholds fairness and legal ethics
• Ensures that:
  • Legal privilege is not defeated by indirect methods

Without this protection:

• Courts could indirectly force disclosure of privileged documents by summoning custodians instead of the privileged person.

(b) No Secondary Evidence of Protected Documents
Important Consequence of Section 136Under Section 60 of the Bharatiya Sakshya Adhiniyam, secondary evidence may generally be given if:

• The original document is in possession of a person legally bound to produce it, and
• That person refuses to do so.

However:
👉 This rule does NOT apply to documents protected under Sections 135 and 136.
Effect

• If a document is protected by privilege:
  • Neither primary evidence nor secondary evidence of its contents can be given.
• For example:
  • Title deeds
  • Privileged communications
  • Confidential legal documents

Thus, privilege completely excludes proof of contents, not merely production.

(c) Section 136 vis-à-vis Section 165 (Production of Documents)
Section 165 – General Rule

• A witness summoned to produce a document must bring it to court,
• Even if there are objections to:
  • Production, or
  • Admissibility

The court decides the validity of objections.
Exception Created by Section 136

• Section 136 overrides this general obligation.
• If the document is one that:
  • The principal could legally refuse to produce,

👉 The person holding it cannot be compelled to produce it at all, unless the principal consents.
Thus:

• Section 165 applies subject to Sections 135 and 136.

Illustrative Understanding

• A client gives confidential documents to his advocate.
• The client has a legal right to refuse production of those documents.
• The advocate is summoned to produce them.

👉 Under Section 136:

• The advocate cannot be compelled to produce the documents,
• Unless the client consents.

Key Legal Principles (Note Form)

• Privilege attaches to the document, not the custodian
• Custodian cannot be compelled if owner has a right to refuse
• Consent of the privileged person is mandatory
• No secondary evidence allowed of privileged documents
• Section 136 protects confidentiality and legal ethics

Critical Analysis
Strengths

1. Strong protection of privileged communications
2. Prevents indirect violation of legal rights
3. Recognizes modern electronic records
4. Upholds confidentiality in fiduciary relationships
5. Ensures consistency with constitutional and professional ethics

Limitations

1. May restrict access to potentially relevant evidence
2. Heavy reliance on correct determination of privilege
3. Possibility of misuse if privilege is wrongly claimed

Conclusion
​Section 136 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in safeguarding documentary and electronic record privilege. It ensures that a person’s right to refuse production of certain documents is not undermined simply because those documents are held by another.
By extending protection to agents, advocates, trustees, and other custodians—and by barring even secondary evidence of privileged documents—Section 136 reinforces the foundational principle that confidentiality and privilege are essential to justice, not obstacles to it.