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KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – May Presume, Shall Presume and Conclusive Proof
Introduction
Sections 2(1)(k), 2(1)(l), and 2(1)(b) of the Bharatiya Sakshya Adhiniyam deal with the concepts of “May Presume,” “Shall Presume,” and “Conclusive Proof.” These provisions form the foundation of presumptions under the law of evidence. Presumptions help courts draw conclusions regarding the existence or non-existence of certain facts based upon logic, human conduct, natural events, and legal principles.
A presumption is an inference or conclusion drawn from established facts. It may either support or negate a disputed fact in issue. According to Sir James Fitz James Stephen, courts and judges may infer certain conclusions from facts proved before them unless the truth of such inference is disproved.
In simple words, when one fact is established, another connected fact may be presumed to exist because of ordinary human experience, natural events, or statutory rules. Thus, presumptions reduce the burden of proving every fact directly and help in the effective administration of justice.
Meaning of Presumption
A presumption is an inference of fact drawn from other proved or known facts. The law recognizes that certain facts generally follow from other established circumstances. Therefore, once the foundational fact is proved, the Court may or shall presume the existence of another related fact.
The burden of proof does not always remain upon the person asserting the fact because presumptions shift the burden to the opposite party to disprove the presumed fact.
The basic principle behind presumptions is that when one important fact or set of circumstances is proved, the existence of another related fact may also be assumed until the contrary is shown.
Section 119 – General Principle of Presumption
Section 119 provides that the Court may presume the existence of any fact which it thinks likely to have happened, having regard to:
This section recognizes that courts may rely upon ordinary human experience and practical probabilities while deciding disputes.
May Presume [Section 2(1)(k)]
Meaning
“May Presume” means that the Court has discretionary power to presume a fact as proved unless it is disproved. However, the Court is not bound to make such presumption and may require further evidence before acting upon it.
Nature
This is a rebuttable presumption of fact. The Court may either:
Characteristics
Shall Presume [Section 2(1)(l)]
Meaning
“Shall Presume” creates a mandatory presumption. Once the foundational facts are proved, the Court must presume the existence of the presumed fact unless it is disproved by the opposite party.
Nature
This is a rebuttable presumption of law. Unlike “May Presume,” the Court has no discretion regarding whether the presumption should be drawn.
Characteristics
Conclusive Proof [Section 2(1)(b)]
Meaning
“Conclusive Proof” refers to an irrebuttable presumption. When one fact is declared by the Adhiniyam to be conclusive proof of another fact, the Court must regard the second fact as proved and no evidence can be given to disprove it.
Nature
This is the strongest form of presumption recognized by law. The Court does not permit any contrary evidence once the foundational fact is established.
Characteristics
Conclusion
The concepts of “May Presume,” “Shall Presume,” and “Conclusive Proof” are essential principles under the Bharatiya Sakshya Adhiniyam. They determine the degree of proof required and the extent to which courts may rely upon presumptions while deciding cases. “May Presume” provides discretion to the Court, “Shall Presume” imposes a mandatory but rebuttable presumption, and “Conclusive Proof” creates a final and irrebuttable presumption. Together, these principles simplify judicial proceedings and ensure effective administration of justice.
Introduction
Sections 2(1)(k), 2(1)(l), and 2(1)(b) of the Bharatiya Sakshya Adhiniyam deal with the concepts of “May Presume,” “Shall Presume,” and “Conclusive Proof.” These provisions form the foundation of presumptions under the law of evidence. Presumptions help courts draw conclusions regarding the existence or non-existence of certain facts based upon logic, human conduct, natural events, and legal principles.
A presumption is an inference or conclusion drawn from established facts. It may either support or negate a disputed fact in issue. According to Sir James Fitz James Stephen, courts and judges may infer certain conclusions from facts proved before them unless the truth of such inference is disproved.
In simple words, when one fact is established, another connected fact may be presumed to exist because of ordinary human experience, natural events, or statutory rules. Thus, presumptions reduce the burden of proving every fact directly and help in the effective administration of justice.
Meaning of Presumption
A presumption is an inference of fact drawn from other proved or known facts. The law recognizes that certain facts generally follow from other established circumstances. Therefore, once the foundational fact is proved, the Court may or shall presume the existence of another related fact.
The burden of proof does not always remain upon the person asserting the fact because presumptions shift the burden to the opposite party to disprove the presumed fact.
The basic principle behind presumptions is that when one important fact or set of circumstances is proved, the existence of another related fact may also be assumed until the contrary is shown.
Section 119 – General Principle of Presumption
Section 119 provides that the Court may presume the existence of any fact which it thinks likely to have happened, having regard to:
- the common course of natural events,
- human conduct, and
- public and private business,
This section recognizes that courts may rely upon ordinary human experience and practical probabilities while deciding disputes.
May Presume [Section 2(1)(k)]
Meaning
“May Presume” means that the Court has discretionary power to presume a fact as proved unless it is disproved. However, the Court is not bound to make such presumption and may require further evidence before acting upon it.
Nature
This is a rebuttable presumption of fact. The Court may either:
- presume the fact as proved,
- refuse to presume it, or
- call for corroborative evidence.
Characteristics
- It is discretionary in nature.
- It creates a rebuttable presumption.
- The Court may accept or reject the presumption.
- It is generally based upon human conduct, natural events, and ordinary experience.
Shall Presume [Section 2(1)(l)]
Meaning
“Shall Presume” creates a mandatory presumption. Once the foundational facts are proved, the Court must presume the existence of the presumed fact unless it is disproved by the opposite party.
Nature
This is a rebuttable presumption of law. Unlike “May Presume,” the Court has no discretion regarding whether the presumption should be drawn.
Characteristics
- The Court is legally bound to presume the fact.
- The burden shifts to the opposite party to rebut the presumption.
- It is stronger than “May Presume.”
- It is also known as a presumption of law or obligatory presumption.
Conclusive Proof [Section 2(1)(b)]
Meaning
“Conclusive Proof” refers to an irrebuttable presumption. When one fact is declared by the Adhiniyam to be conclusive proof of another fact, the Court must regard the second fact as proved and no evidence can be given to disprove it.
Nature
This is the strongest form of presumption recognized by law. The Court does not permit any contrary evidence once the foundational fact is established.
Characteristics
- It is an irrebuttable presumption of law.
- No evidence can be produced against it.
- The Court is bound to accept the fact as finally proved.
- It is created for reasons of public policy, certainty, and social welfare.
Conclusion
The concepts of “May Presume,” “Shall Presume,” and “Conclusive Proof” are essential principles under the Bharatiya Sakshya Adhiniyam. They determine the degree of proof required and the extent to which courts may rely upon presumptions while deciding cases. “May Presume” provides discretion to the Court, “Shall Presume” imposes a mandatory but rebuttable presumption, and “Conclusive Proof” creates a final and irrebuttable presumption. Together, these principles simplify judicial proceedings and ensure effective administration of justice.
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