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KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – “May Presume” and “Shall Presume”
Introduction
Section 2 of the Bharatiya Sakshya Adhiniyam defines the expressions “May Presume,” “Shall Presume,” and “Conclusive Proof.” These presumptions play an important role in the law of evidence because they guide the Court regarding the manner in which certain facts are to be treated during judicial proceedings.
Section 2(1)(k) defines “May Presume,” while Section 2(1)(l) defines “Shall Presume.” Both concepts relate to presumptions, but they differ in terms of the discretion available to the Court and the strength of the presumption created.
May Presume [Section 2(1)(k)]
Meaning
“May Presume” refers to a situation where the Court has discretionary power to presume a fact as proved. The Court may either regard the fact as proved unless it is disproved, or it may call for further evidence before acting upon such presumption.
Thus, the Court is not bound to draw the presumption. It has the freedom either to accept the fact or to require corroborative evidence.
Nature of Presumption
This type of presumption is a rebuttable presumption relating to facts. The presumption continues only until the contrary is proved by the opposite party.
The expression mainly deals with factual probabilities and practical inferences arising from ordinary human conduct, natural events, or business practices.
Discretion of the Court
Under “May Presume,” the Court enjoys complete discretion. It can:
Characteristics of “May Presume”
Shall Presume [Section 2(1)(l)]
Meaning
“Shall Presume” denotes a stronger form of presumption. Under this principle, the Court is bound to presume the existence of a fact once the foundational facts are established.
However, the presumption remains rebuttable, meaning the opposite party can produce evidence to disprove it.
Nature of Presumption
This is known as a rebuttable presumption of law. Unlike “May Presume,” the Court does not possess discretion regarding whether the presumption should be drawn.
The Court must presume the fact as proved unless sufficient evidence is produced to rebut it.
Mandatory Character
Under “Shall Presume,” the Court has no option but to raise the presumption. The burden then shifts to the opposite party to disprove the presumed fact.
Therefore, the presumption becomes obligatory upon the Court.
Other Names
“Shall Presume” is also referred to as:
Difference Between “May Presume” and “Shall Presume”
Ground of ApplicationIn “May Presume,” the definition begins with the expression “whenever it is provided by this Adhiniyam,” indicating discretionary authority. In contrast, “Shall Presume” begins with “when it is directed by this Adhiniyam,” showing mandatory application.
Discretion of the Court
Under “May Presume,” the Court has the option either to accept the presumption or reject it. Under “Shall Presume,” the Court is legally bound to presume the fact and has no discretion in the matter.
Nature of Presumption
“May Presume” mainly relates to presumptions of fact, whereas “Shall Presume” relates to presumptions of law.
Strength of Presumption
The presumption under “Shall Presume” is stronger than that under “May Presume” because the Court must compulsorily raise the presumption until it is rebutted.
Conclusion
“May Presume” and “Shall Presume” are important evidentiary concepts under the Bharatiya Sakshya Adhiniyam. While both create rebuttable presumptions, they differ significantly in terms of judicial discretion and legal force. “May Presume” gives flexibility to the Court, whereas “Shall Presume” imposes a legal obligation upon the Court to draw the presumption unless disproved. Together, these principles help Courts in evaluating evidence and ensuring effective administration of justice.
Introduction
Section 2 of the Bharatiya Sakshya Adhiniyam defines the expressions “May Presume,” “Shall Presume,” and “Conclusive Proof.” These presumptions play an important role in the law of evidence because they guide the Court regarding the manner in which certain facts are to be treated during judicial proceedings.
Section 2(1)(k) defines “May Presume,” while Section 2(1)(l) defines “Shall Presume.” Both concepts relate to presumptions, but they differ in terms of the discretion available to the Court and the strength of the presumption created.
May Presume [Section 2(1)(k)]
Meaning
“May Presume” refers to a situation where the Court has discretionary power to presume a fact as proved. The Court may either regard the fact as proved unless it is disproved, or it may call for further evidence before acting upon such presumption.
Thus, the Court is not bound to draw the presumption. It has the freedom either to accept the fact or to require corroborative evidence.
Nature of Presumption
This type of presumption is a rebuttable presumption relating to facts. The presumption continues only until the contrary is proved by the opposite party.
The expression mainly deals with factual probabilities and practical inferences arising from ordinary human conduct, natural events, or business practices.
Discretion of the Court
Under “May Presume,” the Court enjoys complete discretion. It can:
- presume the fact as proved,
- refuse to presume the fact, or
- demand additional evidence to verify the fact.
Characteristics of “May Presume”
- It is discretionary in nature.
- It creates a rebuttable presumption of fact.
- The Court may accept or reject the presumption.
- Additional proof may be demanded by the Court.
- It is not considered a strict branch of jurisprudence.
Shall Presume [Section 2(1)(l)]
Meaning
“Shall Presume” denotes a stronger form of presumption. Under this principle, the Court is bound to presume the existence of a fact once the foundational facts are established.
However, the presumption remains rebuttable, meaning the opposite party can produce evidence to disprove it.
Nature of Presumption
This is known as a rebuttable presumption of law. Unlike “May Presume,” the Court does not possess discretion regarding whether the presumption should be drawn.
The Court must presume the fact as proved unless sufficient evidence is produced to rebut it.
Mandatory Character
Under “Shall Presume,” the Court has no option but to raise the presumption. The burden then shifts to the opposite party to disprove the presumed fact.
Therefore, the presumption becomes obligatory upon the Court.
Other Names
“Shall Presume” is also referred to as:
- Presumption of Law,
- Artificial Presumption,
- Obligatory Presumption, or
- Rebuttable Presumption of Law.
Difference Between “May Presume” and “Shall Presume”
Ground of ApplicationIn “May Presume,” the definition begins with the expression “whenever it is provided by this Adhiniyam,” indicating discretionary authority. In contrast, “Shall Presume” begins with “when it is directed by this Adhiniyam,” showing mandatory application.
Discretion of the Court
Under “May Presume,” the Court has the option either to accept the presumption or reject it. Under “Shall Presume,” the Court is legally bound to presume the fact and has no discretion in the matter.
Nature of Presumption
“May Presume” mainly relates to presumptions of fact, whereas “Shall Presume” relates to presumptions of law.
Strength of Presumption
The presumption under “Shall Presume” is stronger than that under “May Presume” because the Court must compulsorily raise the presumption until it is rebutted.
Conclusion
“May Presume” and “Shall Presume” are important evidentiary concepts under the Bharatiya Sakshya Adhiniyam. While both create rebuttable presumptions, they differ significantly in terms of judicial discretion and legal force. “May Presume” gives flexibility to the Court, whereas “Shall Presume” imposes a legal obligation upon the Court to draw the presumption unless disproved. Together, these principles help Courts in evaluating evidence and ensuring effective administration of justice.
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