BACK TO BSA 2023(1993) 3 SCC 418
BSA 2023ACTIVE FRAMEWORKChapter I
Section 4
May Presume / Shall Presume / Conclusive Proof
Preliminary
Quick Legal SummaryIEA IEA S.4
Statutory Snapshot
THE STATUTE
Original Text
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.
Whenever it is provided by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
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.
Legal Commentary
BSA Section 4 is textually identical to IEA Section 4 — the foundational classification of presumption types is preserved without any change. The word 'Adhiniyam' replaces 'Act' throughout, but the legal content is the same.
**Why no change?** The three-way classification in Section 4 is abstract and definitional — it defines terms used in other sections. The substantive changes in the BSA are in the specific presumption provisions that use these terms: Section 111 (presumptions as to documents), Section 112 (conclusive proof of legitimacy), Section 57 (reverse burden for electronic evidence tampering). Section 4 itself is the framework, not the substance.
**New presumption provisions in BSA that use Section 4's framework:**
- BSA Section 57(3): The court shall presume that electronic evidence has not been tampered with if produced with a certificate — a 'shall presume' using the Section 4 framework.
- BSA Section 111: Several 'shall presume' provisions relating to negotiable instruments carry forward from IEA.
- BSA Section 112: The conclusive proof of legitimacy provision carries forward from IEA Section 112 — though the DNA testing debate continues.
**Interaction with BNSS reverse burden provisions:** The BNSS (BSA's criminal procedure companion) also contains presumptions — for example, presumptions in NDPS Act cases, UAPA cases. These interact with BSA Section 4's framework: a 'shall presume' in the NDPS Act means the accused must produce evidence to disprove it, using the BSA Section 4 standard.
Legislative Intent & Background
The preservation of Section 4 unchanged was a deliberate policy choice in the BSA drafting. The Law Commission and the drafting committee recognised that changing the fundamental presumption framework would create uncertainty across hundreds of provisions that use 'may presume', 'shall presume', and 'conclusive proof' language. Stability of the framework was prioritised; modernisation was targeted at the specific provisions where technology and policy had made changes necessary.Critical Provisions & Changes
BSA Section 4 is textually identical to IEA Section 4 — no substantive change.
The words 'this Act' are replaced by 'this Adhiniyam' — cosmetic only.
Practical impact of Section 4 changes through the specific presumption provisions in other BSA sections (S.57, S.111, S.112) that now use this framework.
Landmark Judicial Precedents
Goutam Kundu v. State of West Bengal (1993)
Remains the leading case on conclusive proof under Section 112 IEA (now BSA S.112) — DNA tests cannot displace conclusive proof of legitimacy. This ruling applies with equal force under BSA Section 4.
Practical Scenarios & Illustrations
Same examples as IEA S.4 — all presumption cases decided under IEA S.4 apply with equal force under BSA S.4.
A trial court under BSA: prosecution produces electronic records with a Section 57 certificate — BSA Section 57(3) creates a 'shall presume' that the records are genuine; accused must produce evidence of tampering to rebut.
Questions & Answers
The fundamental framework in Section 4 is unchanged — 'may presume', 'shall presume', and 'conclusive proof' have identical meanings in both acts. However, specific presumption provisions in the BSA have changed: notably, Section 57(3) introduces a new reverse-burden presumption for electronic evidence (the court shall presume electronic evidence is untampered if properly certified), and some specific presumptions in other sections have been updated.
BSA Section 4 of the Bharatiya Sakshya Adhiniyam (BSA) 2023 (May Presume / Shall Presume / Conclusive Proof) directly governs how courts evaluate and admit evidence in civil and criminal proceedings. BSA Section 4 is textually identical to IEA Section 4 — the foundational classification of presumption types is preserved without any change. The word 'Adhiniyam' replaces 'Act' throughout, but the legal content is the same.
**Why no change?** The three-way classification in Section 4 is abstract... Advocates must ensure that evidence sought to be relied upon satisfies the conditions prescribed by this provision, failing which it may be excluded or accorded lesser weight by the court.