The BSA (Bharatiya Sakshya Adhiniyam), which is India’s Law of Evidence, carries significant implications for the justice system in India. One of the most critical aspects of criminal law is the burden of proof, a principle that determines which party is responsible for proving a particular fact or claim in a case. Let’s delve deep into the nuances of the burden of proof under the BNS, focusing on the distinction between “shall presume” and “may presume”. These phrases form the crux of how presumptions operate within Indian criminal law and carry significant weight in shaping the outcome of cases.
The Burden of Proof: A Brief Overview
Before we dive into the specifics of “shall presume” and “may presume,” it’s essential to understand the general principle of the burden of proof. In the context of criminal law, the burden of proof is typically on the prosecution to prove the guilt of the accused beyond a reasonable doubt. This is a foundational element of the adversarial system and stems from the presumption of innocence, which is a fundamental principle in both Indian and international law.
However, certain situations arise where the law presumes facts or conditions to be true unless contradicted by evidence. In such cases, the burden may shift to the accused to disprove certain aspects. This is where the distinctions between shall presume and may presume become critical.
Shall Presume vs. May Presume: Understanding the Nuances
The phrases “shall presume” and “may presume” are used in legal language to create presumptions in law. Both terms are rooted in Section 2 of the BSA (Bharatiya Sakshya Adhiniyam) 2023, and have been carried over into the Bhartiya Nyaya Sanhita, 2023, albeit with nuanced adjustments in language and application.
1. Shall Presume: A Stronger Presumption
Under the BSA, 2023, when a fact is said to be presumed by law under “shall presume”, it means that the court must accept the fact as true unless proven otherwise. The presumption is irrefutable, and the burden of proof shifts to the accused or the party disputing it to disprove the fact.
Legal Definition
“Shall presume” refers to a mandatory presumption, meaning that once the fact has been established by the party invoking the presumption, the court must regard it as true. For instance, a statute may create a presumption that someone who was found with stolen goods is presumed to be a thief.
Example from BSA
Section 116 of BSA: Conclusive Proof of Legitimacy
If a person is born during a valid marriage, the section establishes that it is conclusive proof of legitimacy unless proven otherwise.
Example: If a child is born to a married couple, it is presumed that the child is legitimate
Case Law Example
In Imran Khan v. State of Maharashtra, 2019 SCC OnLine Bom 46, dated 14-01-2019, Bombay High Court referred to Section 114 of the Evidence Act (now replaced by Bharatiya Sakshya Adhiniyam) which provides that the court may presume the existence of certain facts. Illustration (a) of this section states that “a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” In this case, the petitioner was not able to rebut the presumption under Section 114 as he failed to account for the articles found in his possession immediately after the theft. Conviction was upheld.
Thus, in context of BSA (Bharatiya Sakshya Adhiniyam), the same principle would apply—possession alone would create a “shall presume” condition.
2. May Presume: A Weaker Presumption
On the other hand, “may presume” allows the court to assume a fact is true but also grants the judge the discretion to decide whether to accept the presumption. Here, the presumption is rebuttable, meaning that the party disputing the presumption has an opportunity to provide evidence to disprove the fact in question.
Legal Definition
“May presume” refers to an optional presumption. Unlike “shall presume”, the court is not required to accept the fact as true but can infer it based on the evidence at hand. The judge, upon weighing the facts, may choose whether to adopt the presumption in the case.
Example from BSA
Section 117 of BSA: Presumption of Abetment of Suicide
In cases of suicide within seven years of marriage due to cruelty, the court may presume abetment against the husband or relatives, considering all circumstances.
Example: If a married woman commits suicide within seven years of marriage due to cruelty, the court may presume abetment by her husband or relatives if cruelty is proven.
However, the person has the opportunity to provide evidence to rebut this presumption, such as giving evidence as to prove instances of cruelty and instigation of suicide by accused or by relatives of accused.
Case Law Example
In a case of suicide of wife, acquittal of the relatives or husband under Section 498A IPC (that happens when prosecution fail to prove instance of cruelty) will bar prosecution to use presumption available under Section 113A of the Evidence Act (now replaced by Bharatiya Sakshya Adhiniyam) to prove abetment to suicide under Section 306, IPC. A bench comprising Justice RF Nariman and Justice Mohan M Shantanagoudar also held that harassment is something of a lesser degree than cruelty, and the mere fact that there is a finding of harassment would not lead to the conclusion that there is “abetment of suicide”.
Presumption in Criminal Law: Shall vs. May
The distinction between “shall presume” and “may presume” is critical in criminal cases. Criminal law places great emphasis on the presumption of innocence and requires the prosecution to prove the defendant’s guilt beyond a reasonable doubt. The BSA, 2023, balances this by permitting certain presumptions but ensures that the accused can rebut them with appropriate evidence.
The Role of Circumstantial Evidence
Both shall presume and may presume come into play when circumstantial evidence is presented. Circumstantial evidence, which is indirect or inferred from the facts, is common in criminal cases, and these presumptions can either ease the burden on the prosecution or provide the defence an opportunity to challenge the evidence.
For instance, in a case where shall presume applies (e.g., possession of stolen goods), the prosecution might use circumstantial evidence to argue that the accused is guilty, relying on the presumption that certain facts are true. In contrast, may presume cases allow the defence to introduce evidence to show that the circumstances are not as they appear and should not lead to an automatic inference of guilt.
Impact on the Criminal Justice System
The principles of shall presume and may presume in the BSA, 2023 strengthens the fairness of criminal proceedings by ensuring that presumptions can be challenged. The presumption of innocence is not discarded but supplemented by these provisions to ensure that certain presumptions stand unless disproven.
Balancing the Legal Framework
The balance between shall presume and may presume allows for flexibility in how evidence is treated and ensures that justice is served while maintaining the rights of the accused. However, critics argue that the broader use of presumptions could lead to an erosion of the principle that guilt must be proven beyond a reasonable doubt.
Consider a scenario where a person is found with goods suspected of being stolen. If the goods are identified as stolen, the court may “shall presume” the accused’s guilt, unless the accused can provide evidence that they lawfully acquired the goods. However, if the evidence is not overwhelming, the court may choose to “may presume” the guilt and provide the accused an opportunity to present contradictory evidence.
Conclusion
The burden of proof in the BSA (Bharatiya Sakshya Adhiniyam),carries important implications for the administration of justice in India. The “shall presume” and “may presume” provisions offer different levels of legal presumptions and have far-reaching consequences on criminal cases. As India navigates these changes, it’s essential to strike a balance between protecting individuals’ rights and ensuring that justice is done.
The ‘shall presume’ presumption creates a stronger case for the prosecution, while ‘may presume’ allows the defence to contest presumptions. Both play an essential role in the justice system and will likely be the subject of further legal discourse as BSA is put into practice. The burden of proof is an ever-evolving concept that demands a careful, case-by-case analysis to safeguard both the accused and the victim while maintaining fairness and justice.
Author: Apoorva Lamba, 2nd Year LLB. Student of Madhav Mahavidyalaya, Jiwaji University, Gwalior
Wish to read similar articles? Click the link to read a commentary on BHARATIYA NYAYA SANHITA, 2023: https://jpassociates.co.in/bharatiya-nyaya-sanhita-2023/
Link to BHARATIYA NYAYA SANHITA, 2023: https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf
