Presumption as to Certain Offences under Section 115 of the Bharatiya Sakshya Adhiniyam, 2023

Section 115 is the most far-reaching presumption in the Adhiniyam, and the least discussed. Every other presumption directs a court to take some fact as established; this one directs it to presume that the accused committed the offence. It applies only to offences against the State, only in a disturbed area, and only on proof of defined facts — but within that field it converts presence at a place into presumed guilt, and it uses a formula the statute never defines.

1. The Provision

Section 115 corresponds to Section 111A of the Indian Evidence Act, which was inserted by the Criminal Law (Amendment) Act, 1983. The offences specified are those under Sections 121, 121A, 122 and 123 of the Indian Penal Code, 1860, now recast in the Bharatiya Nyaya Sanhita, 2023.

2. What Makes This Provision Different

Every other presumption in the Adhiniyam operates on a fact. Section 78 presumes that a certified copy is genuine; Section 92 presumes that an old document was duly executed; Section 118 presumes that a person caused a dowry death. Each takes a step in the reasoning and requires the court to treat it as established.

Section 115 presumes the offence. The words are that it shall be presumed 'that such person had committed such offence' — not that he did some act, or had some intention, or was connected with some event, but that he is guilty.

3. The Undefined Formula

The section uses the words 'it shall be presumed, unless the contrary is shown'. That formula appears nowhere in Section 2(1), which defines only three grades — 'may presume', 'shall presume' and 'conclusive proof'.

The formula is therefore construed rather than defined. Two features of its language are clear. The word 'shall' makes it mandatory — the court has no discretion to call for proof instead, as it would under a 'may presume' provision. And the words 'unless the contrary is shown' make it rebuttable — it is not conclusive proof, and evidence to displace it is received.

A third question is open. The word used for the rebuttal is 'shown', not 'disproved'. Under Section 2(1)(l) a shall-presume fact stands until it is disproved; here the accused need only show the contrary. Read strictly — as a provision casting a burden on an accused must be — that language points to a lighter rebuttal burden than a shall-presume provision would impose, which is consistent with the severity of what is being presumed.

4. The Foundational Facts

The presumption arises only on proof of a defined set of facts, and they fall into three groups. The prosecution must establish each, and until it does the accused need do nothing.

4.1 The offence charged must be one of the specified offences

The section applies only to the offences against the State that sub-section (2) enumerates — waging or attempting to wage war against the Government of India, conspiracy to commit such an offence, collecting arms with the intention of waging war, concealing with intent to facilitate a design to wage war, and criminal conspiracy, attempt or abetment in relation to the last two.

It does not apply to any other offence, however grave, and however closely connected with the same events. A prosecution for murder, for an offence under an anti-terrorism statute, or for rioting arising out of the same incident is outside the section entirely.

4.2 The area condition

Two alternatives are provided and either will do.

• A declared disturbed area — an area declared as such under any enactment in force making provision for the suppression of disorder and the restoration and maintenance of public order. This is a formal matter and is proved by the notification, which is itself provable under Section 77(c) and carries the presumption in Section 80.
• An area of extensive disturbance — an area in which there has been, over a period of more than one month, extensive disturbance of the public peace. This requires no declaration but requires evidence of both the extent of the disturbance and its duration, and the period is expressed as more than one month.

4.3 The presence and the use of arms

It must be shown that the accused had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist members of the armed forces or forces charged with the maintenance of public order acting in the discharge of their duties.

Four elements are packed into this and each is a distinct requirement.

1. Presence at a place in the area — not merely in the area, but at the place from or at which the arms were used.
2. At the time the arms were used. Presence at some other time does not satisfy the section.
3. Firearms or explosives used at or from that place. The words are specific: other weapons, and other kinds of violence, are outside it.
4. Against the armed forces or forces maintaining public order, acting in the discharge of their duties. Violence directed at anybody else does not attract the section, and neither does violence against forces not then acting in the discharge of their duties.

5. The Constitutional Framework

Section 115 is a reverse burden and is governed by the framework the Supreme Court laid down for such provisions.

Applied to Section 115, the framework produces four propositions.

Proportionality. The objective — the suppression of armed insurrection against the State — is plainly a sufficiently important one, and the rational connection between presence at the place from which arms were used and participation in the design is arguable. The third limb, whether the measure goes no further than necessary, is where a challenge would be directed, and it has not been authoritatively tested.

Strict construction. Every element of the foundational facts is read narrowly. The area must be one of the two kinds specified; the weapons must be firearms or explosives; the target must be the forces named, acting in the discharge of their duties; the presence must be at the place and at the time.

Foundational facts beyond reasonable doubt. Section 115 uses the word 'shown' for the foundational facts, as Section 118 does — and on the reasoning in Sher Singh alias Partapa v. State of Haryana, (2015) 3 SCC 724, that word is deliberately lighter than 'proved'. The relationship between that choice of language and the requirement in Noor Aga that foundational facts be proved beyond reasonable doubt has not been worked out for this section, and the safer position for a prosecution is to establish them to the criminal standard.

Rebuttal on the civil standard. The accused shows the contrary on a preponderance of probabilities, and he need not disprove the presumed fact beyond reasonable doubt.

6. Rebuttal

The accused must show the contrary — that he did not commit the offence presumed. Because what is presumed is guilt rather than a discrete fact, the rebuttal is correspondingly wide, and the material ordinarily relied upon falls into four classes.

• Innocent presence. That he was at the place for a reason unconnected with the incident — he lived there, worked there, was passing through, or was taken there. Presence being the gateway, an innocent explanation of presence is the most direct answer.
• Absence of the mental element. That he had no knowledge of the use of arms, no association with those using them, and no share in any design against the State. The specified offences each require an intention or design, and the presumption does not make that intention unchallengeable.
• Compulsion or absence of volition. That he was present against his will, or was unable to leave.
• Displacement of a foundational fact. That he was not present at the place, or not at the time, or that the weapons used were not firearms or explosives, or that the target was not the forces the section names. Strictly this is not rebuttal at all — it prevents the presumption from arising.

The last of these is much the strongest, and it is where the defence effort belongs. Until the foundational facts are established, the presumption does not operate and there is nothing to rebut.

And as with every reverse burden, a third question survives the rebuttal. Even where the accused fails to show the contrary, the court must consider separately whether the material raises a reasonable doubt about the ingredients of the offence which the prosecution had independently to establish. A presumption of guilt is still subject to the golden thread, and Woolmington v. Director of Public Prosecutions, [1935] AC 462 holds that a doubt created by the evidence of either side operates in the accused's favour.

7. Section 115 Compared

The comparison shows what is distinctive about Section 115. The other two presume a fact which, taken with other ingredients the prosecution must prove, establishes guilt. Section 115 presumes guilt, and there is nothing left for the prosecution to establish once the foundational facts are shown.

8. Practical Points

1. Check the charge. The section applies only to the enumerated offences against the State, and not to any other offence arising from the same events.
2. Prove the area condition specifically — either the declaration, produced under Section 77(c) with the presumption in Section 80, or evidence of extensive disturbance over more than one month.
3. Prove presence at the place and at the time, not merely presence in the area or during the disturbance.
4. Prove that the weapons were firearms or explosives, and that they were used at or from that place.
5. Prove that the target was the forces named, acting in the discharge of their duties.
6. For the defence, attack the foundational facts first, since the presumption cannot arise until each is established and the section is construed strictly.
7. Press the third question — whether the material raises a reasonable doubt about the ingredients the prosecution had independently to prove.

9. The Position Stated Shortly

1. Section 115 presumes the offence itself, and is the only provision in the Adhiniyam that does so.
2. It applies only to specified offences against the State, and not to other offences arising from the same events.
3. Two area conditions are available — a declared disturbed area, or an area with extensive disturbance of the public peace over more than one month.
4. Presence must be at the place and at the time when firearms or explosives were used at or from that place against the forces named.
5. The formula is not defined in Section 2(1), and reads as a mandatory rebuttable presumption.
6. The rebuttal word is 'shown', not 'disproved', which on a strict construction points to a lighter burden than a shall-presume provision would impose.
7. Noor Aga supplies the framework — proportionality, strict construction, foundational facts to the criminal standard, rebuttal on the civil standard.
8. The defence effort belongs on the foundational facts, since strict construction makes each of them a real requirement.

10. Related Topics and Provisions