May Presume vs Shall Presume vs Conclusive Proof under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Difference, Examples and Case Laws

Three expressions in Section 2 control the operation of every presumption in the Adhiniyam. 'May presume' leaves the court a discretion. 'Shall presume' removes the discretion but preserves the right to rebut. 'Conclusive proof' removes both. The choice of expression in any given section is therefore not a matter of drafting style; it determines what the court must do, what the opposing party may do, and whether the finding can be challenged at all.

1. The Three Definitions

Sections 2(1)(h), 2(1)(l) and 2(1)(b), BSA

'May presume'. Whenever it is provided by this Adhiniyam that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

'Shall presume'. Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

'Conclusive proof'. When one fact is declared by this Adhiniyam to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

All three stood in Section 4 of the Indian Evidence Act. The Adhiniyam moves them into the definitions clause, so that the whole vocabulary of the statute is now found in Section 2. The wording is otherwise unchanged, and the case law decided on Section 4 continues to govern by force of Section 8 of the General Clauses Act, 1897.

2. The Three-Way Comparison

	May presume	Shall presume	Conclusive proof
Clause	Section 2(1)(h)	Section 2(1)(l)	Section 2(1)(b)
Jurisprudential class	Presumption of fact (praesumptio hominis)	Rebuttable presumption of law (praesumptio juris tantum)	Irrebuttable presumption of law (praesumptio juris et de jure)
Source of the inference	Common course of natural events, human conduct, and public and private business	A legislative command	A legislative command
Court's obligation	Discretionary. The court may presume, or may instead call for proof of the fact	Mandatory. The court must presume	Mandatory and final. The court must regard the fact as proved
Rebuttable	Yes	Yes	No
Evidence in rebuttal	Permitted	Permitted	Expressly barred
Standard for rebuttal	The presumed fact must be disproved within Section 2(1)(c)	The same	Not applicable
What happens if rebutted	The presumption disappears and the case is decided on the evidence	The same	Not applicable
Reasons	The exercise of the discretion either way is open to review	No reasons needed to raise it; reasons needed to hold it rebutted	No question arises
Number of provisions in the BSA	Nine, together with the general power in Section 119	Roughly a dozen	One — Section 116

⚠ Rebuttal requires disproof, not doubt

Both 'may presume' and 'shall presume' operate 'unless and until it is disproved'. Under Section 2(1)(c) a fact is disproved when the court believes it does not exist, or considers its non-existence so probable that a prudent man ought to act on that supposition. Merely raising a doubt about the presumed fact is therefore not enough to displace the presumption; the party against whom it operates must carry the matter into the territory of positive disbelief. Where that party is an accused, he does so on a preponderance of probabilities and not beyond reasonable doubt.

3. May Presume — Presumption of Fact

A 'may presume' provision does no more than authorise the court to make an inference that any sensible person would make from the same material. The court retains a discretion, and the discretion is a real one: it may decline to presume and require the party to prove the fact in the ordinary way.

📖 M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691

Held: A presumption of fact under a 'may presume' provision is an inference of fact which the court may draw from the proof of certain other facts, applying its knowledge of human affairs and the common course of natural events. It is not a legal fiction. Proof of a fact depends on the degree of probability of its having existed, and the standard required is that of the prudent man.

Ratio: A permissive presumption is the ordinary process of inference given statutory recognition, and remains governed by the definition of 'proved' in Section 2(1)(j).

3.1 Section 119 — the general power

Section 119, BSA

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration	The Court may presume	But not where
(a)	That a man 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	The article is one commonly dealt in, and the person is a shopkeeper with no reason to believe it stolen
(b)	That an accomplice is unworthy of credit unless corroborated in material particulars	The circumstances make the accomplice's account inherently credible
(c)	That a bill of exchange accepted or endorsed was accepted or endorsed for good consideration	The circumstances of the acceptance are themselves suspicious
(d)	That a thing or state of things shown to have existed within a period shorter than that within which such things usually cease to exist is still in existence	The interval or the nature of the thing makes continuance improbable
(e)	That judicial and official acts have been regularly performed	The act was done in circumstances that make its regularity improbable
(f)	That the common course of business has been followed in a particular case	There is material suggesting departure from that course
(g)	That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it	The evidence was not within the power of that person to produce
(h)	That a man who refuses to answer a question he is not compelled by law to answer would, if he answered, give an answer unfavourable to him	The refusal is explicable on other grounds
(i)	That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged	The document came into his hands otherwise than by discharge

3.2 Other 'may presume' provisions

Section	Subject
79	Documents produced as a record of evidence, or as a statement or confession recorded by a Magistrate
80	Gazettes, newspapers and other documents
81	Gazettes in electronic or digital record
88	Certified copies of foreign judicial records
89	Books, maps and charts printed or published under the authority of Government
90	Electronic messages forwarded through an electronic mail server
92	Documents thirty years old produced from proper custody
93	Electronic records five years old produced from proper custody
117	Abetment of suicide by a married woman within seven years of marriage, where cruelty is shown
119	The general power, with its nine Illustrations

4. Shall Presume — Rebuttable Presumption of Law

A 'shall presume' provision withdraws the discretion. Once the foundational fact is proved, the court is bound to treat the presumed fact as established, and it must do so without any evidence being led on it. The party against whom the presumption operates may still displace it, but until he does, the presumed fact stands.

📖 Sodhi Transport Co. v. State of Uttar Pradesh, (1986) 2 SCC 486

Held: The expression 'shall presume' does not make the presumed fact conclusive. A presumption is not evidence in itself but only makes a prima facie case for the party in whose favour it operates. It indicates the person on whom the burden of proof lies, and when that person adduces evidence to rebut it, the presumption disappears and the matter is decided on the evidence on record.

Ratio: A mandatory presumption allocates the burden of proof; it does not foreclose the enquiry.

Section	Subject	Foundational fact to be proved first
78	Genuineness of certified copies	Production of a document purporting to be a certified copy, duly certified in the manner prescribed
82	Maps or plans made by authority of Government	That the map or plan was so made
83	Collections of laws and reports of decisions	That the book purports to be printed or published under the authority of the Government of the country concerned
84	Powers-of-attorney	That the document purports to have been executed before and authenticated by a Notary Public or a specified officer
85	Electronic agreements	That the agreement bears the electronic signatures of the parties
86	Electronic records and electronic signatures	That the record is affixed with a secure electronic signature
87	Electronic Signature Certificates	Production of the certificate
91	Due execution of a document not produced after notice	Service of notice to produce, and non-production
115	Certain offences committed in a disturbed area	The circumstances specified in the section
118	Dowry death	Death otherwise than in normal circumstances within seven years of marriage, and cruelty or harassment for dowry soon before the death
120	Absence of consent in specified prosecutions	That sexual intercourse by the accused is proved, and that the woman states in her evidence that she did not consent

5. Conclusive Proof — Irrebuttable Presumption of Law

Conclusive proof is the strongest device in the Adhiniyam. On proof of the foundational fact the court must regard the presumed fact as established, and it is expressly forbidden to receive evidence tendered to disprove it. The provision operates as a rule of substantive policy dressed as a rule of evidence, and for that reason the Adhiniyam uses it only once.

Section 116, BSA — the sole instance

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

The words after 'unless' are not a right of rebuttal in the ordinary sense. They form part of the definition of the foundational fact. Where non-access is shown, the presumption never arises at all; where it is not shown, no evidence may be led against the presumed fact. Impotence, sterility, or evidence that another man is the biological father does not by itself displace the presumption. What must be established is the absence of any opportunity for marital intercourse at the relevant time.

📖 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418

Held: Courts in India cannot order a blood test as a matter of course. There must be a strong prima facie case and the applicant must establish the need for such a test. No one can be compelled to give a sample of blood for analysis, and an adverse inference may be drawn against a party who refuses. The presumption under Section 112 of the Indian Evidence Act is a conclusive presumption which can be displaced only by proof of non-access.

Ratio: A scientific test cannot be used as a route around the statutory presumption.

📖 Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576

Held: Where a DNA test has in fact been conducted and its result excludes paternity, the result must prevail. When there is a conflict between a conclusive proof envisaged by law and a fact established by science, the latter must prevail, since the presumption is a legal fiction whereas the DNA report is a matter of scientific accuracy. The Court reiterated, however, that such a test is not to be directed as a matter of routine.

Ratio: Read with Goutam Kundu, the working position is that the test will rarely be ordered, but that where a reliable result exists it governs.

📖 Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052

Held: A rule prescribing that on proof of one fact another shall be treated as conclusively proved is a rule of evidence. Such a rule regulates the mode of proof and does not by itself create or extinguish substantive rights, though the legislature must have the competence to enact it.

Ratio: Conclusive proof is a rule of evidence and therefore procedural in character, notwithstanding the finality of its effect.

⚠ 'Conclusive proof' elsewhere in the statute book

The expression is used sparingly in the Adhiniyam but appears in a number of other enactments — for instance in relation to a certificate of incorporation, a decree of a competent court on a matter of status, and certain entries in statutory registers. Wherever the expression is used, the definition in Section 2(1)(b) supplies its meaning, and the bar on evidence in rebuttal applies.

6. Practical Consequences of the Distinction

Whether the presumption must be raised at all. Under a 'may presume' provision a court that declines to presume commits no error of law, provided the exercise of its discretion is reasoned. Under a 'shall presume' provision a failure to raise the presumption once the foundational fact is proved is an error of law.
What the opposing party must do. Under the first two categories the opposing party must disprove the presumed fact within Section 2(1)(c). Under conclusive proof he may do nothing at all, and any evidence he tenders for that purpose is inadmissible.
Who bears the risk of non-persuasion. In every case it is the party against whom the presumption operates. This is the practical function of a presumption.
Effect on the prosecution's overall burden. No presumption relieves the prosecution of its obligation to establish the case as a whole beyond reasonable doubt. The presumption operates only after the foundational facts are themselves proved to that standard.
Standard of rebuttal where the accused is affected. He discharges the burden on a preponderance of probabilities, and may do so on material already on the record, including the prosecution's own evidence.

📖 V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762

Held: Where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. It is sufficient if he succeeds in proving a preponderance of probability, and as soon as that is done the burden shifts to the prosecution, which has still to discharge its original onus of establishing the case beyond reasonable doubt.

Ratio: The standard for displacing a presumption that operates against an accused is the civil standard.

📖 Harbhajan Singh v. State of Punjab, AIR 1966 SC 97

Held: The onus on an accused person who claims the benefit of an exception may be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court makes its decision by adopting the test of probabilities, so must a criminal court hold that the plea is proved if a preponderance of probability is established by the evidence led by him.

Ratio: Confirms that the accused's burden is a civil burden, and may be discharged on the material already on record.

7. Summary of Grades by Provision

Grade	Provisions of the BSA
May presume	79, 80, 81, 88, 89, 90, 92, 93, 117, and the general power in 119 with its nine Illustrations
Shall presume	78, 82, 83, 84, 85, 86, 87, 91, 115, 118, 120
Conclusive proof	116
Burden-allocating rules that operate like presumptions	110 (person known to have been alive within thirty years), 111 (person not heard of for seven years), 112 (continuance of a relationship), 113 (possession as owner), 114 (good faith in a relation of active confidence)

The provisions in the fourth row are not framed in the language of presumption. They place the burden of proving the negative on the party who affirms it, which produces the same practical result: until that party discharges the burden, the court proceeds on the footing that the state of affairs continues.

8. Related Topics and Provisions

Topic or provision	Connection
Presumptions under the Law of Evidence	The full treatment of both blocks of presumptions in the Adhiniyam
Important Definitions under Section 2, BSA	The definitions of 'proved', 'disproved' and 'not proved' against which rebuttal is measured
Proof and Modes of Proof	Presumption as one of the five modes by which a fact may be established
Standard of Proof in Civil and Criminal Cases	The standard for proving the foundational fact, and the standard for rebuttal
Sections 78 to 93, BSA	Presumptions as to documents and electronic records
Sections 110 to 120, BSA	Presumptions in the chapter on burden of proof
Section 8, General Clauses Act, 1897	Carries the case law on Section 4 of the Indian Evidence Act into Section 2 of the Adhiniyam