Introduction
Sections 78 to 93 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) talk about various types of presumptions. These presumptions empower the courts to presume certain facts to be true, making these facts easier to prove during trials.
Section 78 BSA - Presumption of Genuineness for Certified Documents:
- Section 78 of BSA introduces a presumption that every document purporting to be a certificate, certified copy, or other document admissible as evidence and duly certified by a Central or State Government officer is genuine. This presumption is contingent upon the document being substantially in the prescribed form and executed as directed by law.
Section 79 BSA - Presumption Regarding Records of Evidence:
- Section 79 provides a presumption concerning documents presented as records of evidence, statements, or confessions from judicial proceedings. The court is entitled to presume the genuineness of such documents, assuming they were taken in accordance with the law.
Sections 80-81 BSA - Presumption for Official Gazette, Newspapers, and Documents Kept by Law:
- Sections 80 and 81 dictate presumptions regarding the genuineness of the Official Gazette, newspapers, and documents directed by law to be kept. The court presumes these documents are genuine if they are maintained in the prescribed form and produced from proper custody.
Section 82 BSA - Presumption for Maps or Plans Authorized by the Government:
- Section 82 establishes a presumption regarding the accuracy of maps or plans made by the authority of the Central or State Government. However, maps created for a specific cause must be independently proven for accuracy.
Section 83 BSA - Presumption for Government-Authorized Books:
- In Section 83, the court is entitled to presume the genuineness of books authorized by the government, containing laws or court decisions of a country.
Section 84 BSA - Presumption for Power of Attorney:
- Section 84 of BSA establishes a presumption that documents purporting to be a power of attorney, duly executed and authenticated by a Notary Public, court, judge, magistrate, Indian Consul, or representative of the Central Government, were indeed executed and authenticated.
Section 85 BSA - Presumption for Electronic Agreements:
- Section 85 introduces a presumption that electronic records purporting to be agreements, containing the electronic or digital signatures of the parties, were genuinely concluded by affixing these signatures.
Section 86 BSA - Presumption for Secure Electronic Records and Signatures:
- Section 86 delves into secure electronic records and signatures. In any proceeding involving secure electronic records, the court presumes that such records have not been altered since the specific point of time to which the secure status relates. For secure electronic signatures, the court presumes the signature was affixed with the intention of signing or approving the record.
Section 87 BSA - Presumption for Electronic Signature Certificates:
- Section 87 details that the court shall presume, unless proved otherwise, that the information listed in an Electronic Signature Certificate is correct. This presumption extends to subscriber information that has not been verified, provided the certificate is accepted by the subscriber.
Sections 88-91 BSA - Miscellaneous Presumptions:
- Sections 88 to 91 cover presumptions related to certified copies of foreign judicial records, books or documents referring to public or general interest, electronic messages, and documents not produced after notice to produce.
Sections 92-93 BSA - Special Presumptions for Aged Documents and Electronic Records:
- Sections 92 and 93 deal with presumptions for documents aged thirty years or more and electronic records aged five years or more, respectively.
Section 114 of BSA: Presumption of Good Faith
This section states that in transactions where one party is in a position of active confidence, the burden of proving the good faith of the transaction rests on that party.
Example: In a sale between a client and an advocate, if the client questions the good faith of the transaction, the burden is on the advocate to prove the transaction's good faith.
Section 115 of BSA: Presumption in Disturbed Areas
This section allows the court to presume the commission of certain offenses if the accused was present in a disturbed area when firearms or explosives were used.
Example: In a case involving offenses in a disturbed area, if the accused was present when firearms were used, the court shall presume their involvement in the offense.
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.
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.
Section 118 of BSA: Presumption of Dowry Death:
The court shall presume dowry death if it is shown that the woman was subjected to cruelty or harassment for dowry before her death.
Example: If a woman dies under suspicious circumstances, and evidence indicates cruelty or harassment for dowry before her death, the court shall presume dowry death.
Section 119 of BSA: General Presumption
This section allows the court to presume the existence of any fact likely to have happened, considering the common course of natural events, human conduct, and public and private business.
Example: If a person is found in possession of stolen goods soon after a theft, the court may presume that they are either the thief or knowingly received stolen goods.
Section 120 of BSA: Presumption in Rape Cases
In a rape case, if sexual intercourse is proved, and the woman states she did not consent, the court shall presume lack of consent.
Example: In a rape trial, if the prosecution proves sexual intercourse, and the victim testifies that she did not consent, the court will presume lack of consent.
FAQs on Presumptions under Bharatiya Sakshya Adhiniyam, 2023 (BSA):
Q1: What does Section 78 BSA deal with?
A1: Section 78 of BSA establishes a presumption regarding the genuineness of documents such as certificates or certified copies. It assumes that documents certified by Central or State Government officers are genuine if they adhere to the prescribed form and execution procedures.
Q2: Can you explain the presumption related to records of evidence under BSA?
A2: Section 79 of BSA presumes the genuineness of documents presented as records of evidence, statements, or confessions from judicial proceedings, assuming they were taken in accordance with the law.
Q3: What is the significance of Sections 80 and 81 in BSA?
A3: Sections 80 and 81 dictate presumptions concerning the genuineness of the Official Gazette, newspapers, and documents directed by law to be kept. The court assumes these documents are genuine if maintained in the prescribed form and produced from proper custody.
Q4: What does Section 82 BSA cover?
A4: Section 82 establishes a presumption regarding the accuracy of maps or plans made by the authority of the Central or State Government. However, maps created for a specific cause must be independently proven for accuracy.
Q5: How does BSA address the presumption for power of attorney?
A5: Section 84 of BSA introduces a presumption that documents purporting to be a power of attorney, duly executed and authenticated, were indeed executed and authenticated by a Notary Public, court, judge, magistrate, Indian Consul, or representative of the Central Government.
Q6: Can you explain the presumption related to electronic agreements under BSA?
A6: Section 85 of BSA introduces a presumption that electronic records purporting to be agreements, containing electronic or digital signatures, were genuinely concluded by affixing these signatures.
Q7: What does Section 86 BSA deal with?
A7: Section 86 deals with presumptions for secure electronic records and signatures. It presumes that secure electronic records have not been altered since a specific point in time and that secure electronic signatures were affixed with the intention of signing or approving the record.
Q8: How does BSA address the presumption for Electronic Signature Certificates?
A8: Section 87 of BSA presumes that the information listed in an Electronic Signature Certificate is correct unless proved otherwise. This presumption extends to subscriber information not verified if the certificate is accepted by the subscriber.
Q9: What are the miscellaneous presumptions covered in BSA?
A9: Sections 88 to 91 of BSA cover presumptions related to certified copies of foreign judicial records, books or documents referring to public interest, electronic messages, and documents not produced after notice to produce.
Q10: Can you explain the special presumptions for aged documents and electronic records under BSA?
A10: Sections 92 and 93 of BSA deal with presumptions for documents aged thirty years or more and electronic records aged five years or more, respectively.
Q11: How does Section 114 of BSA impact transactions involving a position of active confidence?
A11: Section 114 places the burden of proving good faith on the party in a position of active confidence. For instance, in a sale between a client and an advocate, if the client questions the transaction's good faith, the burden lies on the advocate to prove its legitimacy.
Q12: FAQ: Can you provide an example illustrating Section 115 of BSA, which pertains to presumptions in disturbed areas?
A12: In a case involving offenses in a disturbed area, if the accused was present when firearms were used, Section 115 allows the court to presume their involvement in the offense.
Q13: How does Section 116 of BSA establish conclusive proof of legitimacy?
A13: Section 116 states that if a person is born during a valid marriage, it is conclusively presumed that the child is legitimate. So, if a child is born to a married couple, the law presumes the child's legitimacy.
Q14: How does Section 117 of BSA affect cases of suicide within seven years of marriage due to cruelty?
A14: In cases of suicide due to cruelty within seven years of marriage, Section 117 allows the court to presume abetment against the husband or relatives if cruelty is proven.
Q15: Can you explain Section 119 of BSA and its relevance to possession of stolen goods?
A15: Section 119 allows the court to presume the existence of a fact based on common events. For instance, if a person is found with stolen goods soon after a theft, the court may presume their involvement in the crime.
Presumptions under BSA (Bharatiya Sakshya Adhiniyam)
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