Refreshing Memory and Hostile Witnesses Under the BSA (Section 162): Evidence Act 159 Mapping (2026)
When a witness may look at a document to refresh their memory in the witness box, what Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 allows, and which old Evidence Act section it replaced. Last verified October 2026.
Explainer · Evidence · BSA 2023
A witness in the box is often asked about an event from years ago, or about figures and dates no one can hold in their head. The law does not expect a perfect memory. It lets a witness look at a reliable record to jog their recollection, within clear limits. Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the rule on refreshing memory. This explainer sets out what the witness may look at, the safeguards, the right of the other side to inspect the document, and the old Evidence Act section it replaced. Last verified October 2026.
- What it is: the rule that lets a witness look at a reliable record to refresh their memory while testifying.
- New-code section: Section 162 of the Bharatiya Sakshya Adhiniyam, 2023.
- Old section it replaced: Section 159 of the Indian Evidence Act, 1872. This is an evidence rule, so there is no punishment attached.
- Safeguards: the writing must have been made or verified at or soon after the event, and the other side may inspect it and cross-examine on it.
- Tracking cases: Claw tracks matters under this section across 9,102 forums.
01The problem for a witness
Honest witnesses forget. A police officer who made a dozen seizures cannot recall each one from memory. A book-keeper cannot recite every entry. If the law demanded perfect recall, truthful evidence would be lost just because time has passed.
At the same time, a witness cannot simply read out a prepared script. The evidence must still be the witness’s own, with the document used only as a memory aid. Section 162 draws that line.
02What Section 162 allows
A witness under examination may refresh their memory by looking at a writing made by the witness at the time of the transaction, or so soon afterwards that the court considers the matter was then fresh in their memory. The witness may also use a document made by another person and read by the witness within that time, if, when they read it, they knew it to be correct.
The document only jogs the memory. The evidence is still what the witness recalls and states, not the paper itself.
Two ways to use a record
Section 162 covers refreshing a present memory from a reliable record. Section 163 covers the different situation where the witness has no real memory left but is sure the record was correct when made. Keep the two apart.
03Copies and experts
Section 162 adds two practical allowances.
- Copies. With the court’s permission, a witness may refresh their memory from a copy of a document, if the court is satisfied there is sufficient reason the original cannot be produced.
- Experts. An expert may refresh their memory by referring to professional treatises.
These keep the rule workable. An original may be lost or held by another authority, and an expert cannot be expected to carry every standard text in their head.
04The other side’s right to inspect
Fairness cuts both ways. When a witness uses a document to refresh their memory, the adverse party is entitled to inspect that writing and to cross-examine the witness on it. This stops a witness from relying on a document the other side has never seen.
So a lawyer who lets their witness lean on a document should expect it to be handed across and questioned. The document effectively becomes part of the contest.
05Old law to new law: the mapping
The refreshing-memory rules moved from the Evidence Act to the BSA with the substance intact.
| New law (BSA, 2023) | Old law (Evidence Act, 1872) | Subject |
|---|---|---|
| Section 162 | Sections 159 and 161 | Refreshing memory from a writing; right of the adverse party to inspect it |
| Section 163 | Section 160 | Testimony to facts stated in a document the witness no longer recalls |
Some commentaries mis-state the mapping, pairing Section 163 with old Section 159. Read the section text. On the better view, BSA 162 carries old Section 159, and BSA 163 carries old Section 160.
06Practical points
- Lay the foundation first. Before a witness refreshes memory, establish that they made or verified the document at or soon after the event. Without that, the court may not allow it.
- Expect disclosure. If your witness uses a document, the other side can inspect it and cross-examine on it. Plan for that.
- Keep memory and record apart. If the witness truly has no recollection, consider Section 163, not Section 162.
- Explain why the original is absent. To use a copy, be ready to satisfy the court why the original cannot be produced.
For related rules, see who is a competent witness, hostile witnesses under the BSA, and BSA vs Evidence Act key changes.
07Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
When the other side challenges a document a witness used to refresh memory, the argument turns on how earlier courts dealt with the same objection. Claw lets you search more than 30 crore judgments on Section 162 and the old Section 159 in under five seconds, so those rulings are quick to find, with coverage of Supreme Court decisions from 1950 and High Court decisions from 1990. You can also follow the cases, orders and hearings under this section, by party or advocate name, across 9,102 courts, benches and forums. Start from the all-courts case search hub.
Create a free Claw account to look up refreshing-memory rulings and keep a live matter in sight. Claw does not use customer case documents to train its AI models.
08Sources and further reading
- India Code (Bharatiya Sakshya Adhiniyam, 2023): indiacode.nic.in
- Ministry of Home Affairs (new criminal laws): mha.gov.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text of the BSA and take advice from counsel before you act.
09Frequently asked questions
What is refreshing memory under Section 162 of the BSA?
It is the rule that lets a witness under examination look at a document to help them recall an event, so long as the document was made by the witness, or made by another and verified by the witness, at or soon after the event. It replaces Section 159 of the Indian Evidence Act, 1872.
Can a witness use a copy instead of the original?
Yes, with the court’s permission, if the court is satisfied there is sufficient reason the original cannot be produced. An expert may also refresh their memory by referring to professional treatises.
Can the other side see the document the witness used?
Yes. When a witness refreshes their memory from a writing, the adverse party is entitled to inspect it and to cross-examine the witness on it. This keeps the use of the document fair.
What is the difference between Section 162 and Section 163?
Section 162 is for a witness who still has a memory that the document helps revive. Section 163 is for a witness who no longer recalls the facts but is sure the document correctly recorded them at the time. They cover different situations.
Is there a punishment under Section 162?
No. Section 162 is a rule of evidence, not an offence. It controls how a witness may use a document while testifying, and carries no punishment.
Can I research refreshing-memory cases in Claw?
Yes. Claw searches more than 30 crore judgments on Section 162 and the old Section 159 in under five seconds, and it follows related cases, orders and hearings by party or advocate name across 9,102 courts, benches and forums.