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KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – Shall Presume [Section 2(1)(l)]
Introduction
Section 2(1)(l) of the Bharatiya Sakshya Adhiniyam defines the expression “Shall Presume.” It lays down a rule regarding presumptions that the Court is bound to make under certain circumstances. Unlike “May Presume,” where the Court has discretion, “Shall Presume” imposes a mandatory duty upon the Court to presume the existence of a particular fact unless it is disproved.
Meaning of Shall Presume
Section 2(1)(l) provides that whenever the Adhiniyam directs that the Court “shall presume” a fact, the Court shall regard such fact as proved unless and until it is disproved.
Thus, once the foundational facts required by law are established, the Court is compelled to presume the existence of the presumed fact. The burden then shifts to the opposite party to disprove that presumption.
Nature of Shall Presume
The expression “shall presume” creates a rebuttable presumption of law. The Court does not possess discretionary power in such cases. It must presume the existence of the fact, though the presumption remains open to rebuttal by evidence to the contrary.
This type of presumption is also known as:
Burden of Proof
Under the rule of “shall presume,” the burden of disproving the presumed fact lies upon the party against whom the presumption operates. Unless sufficient evidence is produced to rebut the presumption, the Court must continue to treat the fact as proved.
Therefore, the presumption remains effective until disproved by credible evidence.
Difference between “May Presume” and “Shall Presume”
Under “May Presume,” the Court has discretion either to presume the fact or to call for further proof. However, under “Shall Presume,” the Court has no such discretion and is legally bound to presume the fact once the required foundational facts are established.
Thus, “May Presume” creates a discretionary presumption, whereas “Shall Presume” creates a mandatory rebuttable presumption.
Conclusion
Section 2(1)(l) embodies the principle of mandatory rebuttable presumptions in evidence law. When the law states that the Court “shall presume” a fact, the Court must regard that fact as proved unless it is disproved by the opposing party. The provision facilitates judicial efficiency by allowing certain inferences to be drawn automatically while still preserving the opportunity to rebut the presumption through evidence.
Introduction
Section 2(1)(l) of the Bharatiya Sakshya Adhiniyam defines the expression “Shall Presume.” It lays down a rule regarding presumptions that the Court is bound to make under certain circumstances. Unlike “May Presume,” where the Court has discretion, “Shall Presume” imposes a mandatory duty upon the Court to presume the existence of a particular fact unless it is disproved.
Meaning of Shall Presume
Section 2(1)(l) provides that whenever the Adhiniyam directs that the Court “shall presume” a fact, the Court shall regard such fact as proved unless and until it is disproved.
Thus, once the foundational facts required by law are established, the Court is compelled to presume the existence of the presumed fact. The burden then shifts to the opposite party to disprove that presumption.
Nature of Shall Presume
The expression “shall presume” creates a rebuttable presumption of law. The Court does not possess discretionary power in such cases. It must presume the existence of the fact, though the presumption remains open to rebuttal by evidence to the contrary.
This type of presumption is also known as:
- Presumption of Law,
- Artificial Presumption,
- Obligatory Presumption, or
- Rebuttable Presumption of Law.
Burden of Proof
Under the rule of “shall presume,” the burden of disproving the presumed fact lies upon the party against whom the presumption operates. Unless sufficient evidence is produced to rebut the presumption, the Court must continue to treat the fact as proved.
Therefore, the presumption remains effective until disproved by credible evidence.
Difference between “May Presume” and “Shall Presume”
Under “May Presume,” the Court has discretion either to presume the fact or to call for further proof. However, under “Shall Presume,” the Court has no such discretion and is legally bound to presume the fact once the required foundational facts are established.
Thus, “May Presume” creates a discretionary presumption, whereas “Shall Presume” creates a mandatory rebuttable presumption.
Conclusion
Section 2(1)(l) embodies the principle of mandatory rebuttable presumptions in evidence law. When the law states that the Court “shall presume” a fact, the Court must regard that fact as proved unless it is disproved by the opposing party. The provision facilitates judicial efficiency by allowing certain inferences to be drawn automatically while still preserving the opportunity to rebut the presumption through evidence.
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