Section 115 Bharatiya Sakshya Adhiniyam, 2023: Presumption as to certain offences

Section 115 of Bharatiya Sakshya Adhiniyam, 2023: Presumption as to certain offences

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Where a person is accused of having committed any offence specified in sub-section (2), in—

(a) any area declared to be a disturbed area under any enactment for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person 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 the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely:—

(a) an offence under section 147, section 148, section 149 or section 150 of the Bharatiya Nyaya Sanhita, 2023;

(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 149 or section 150 of the Bharatiya Nyaya Sanhita, 2023.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a)

Legal Commentary & Landmark Judgments: Section 115

Section 115 establishes a statutory presumption as to certain offenses committed in disturbed areas or involving armed rebellion and conspiracy against the State, shifting the burden of proof to the accused.

Disturbed Area Trigger: Applies to specified areas declared as disturbed or experiencing widespread public disorder.
Criminal Presumption Scope: Presumes that if an accused is found at a place where security forces were attacked or weapons were used, they committed the offense.
Rebuttable Criminal Standard: Can be rebutted by the accused demonstrating lawful presence or lack of complicity.

Key Landmark Precedents:

Kartar Singh v. State of Punjab (1994) 3 SCC 569: A Constitution Bench of the Supreme Court examined reverse-burden clauses in national security and special offenses, upholding statutory presumptions where foundational jurisdictional facts are proved.
State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5: Reiterated that statutory presumptions shifting criminal burden require strict threshold proof by the prosecution before adverse inferences arise.

Courtroom Practice & Strategic Litigation Guidance:

In special offense prosecutions, defense counsel must challenge the initial notification declaring the disturbed area and lead evidence showing alibi or lawful civilian presence to neutralize the Section 115 presumption.