Differences between “May Presume” “Shall Presume” And “ Conclusive Proof"

Updated: Jun 1

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Prof.(Dr.) Priya Sepaha

Director, Law Colloquy,

Author, Trainer, blogger, Youtuber

Meaning of presumption

As per the dictionary, the meaning presumption is ‘an idea that is taken to be true on the basis of probability’ or ‘the act of believing that something is true without having any proof’.

In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.

Presumptions are either of law or fact. Presumptions of fact are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. A presumption is a rule where if one fact which is known as the primary fact is proved by a party then another fact which is known as the presumed fact is taken as proved if there is no contrary evidence of the same. It is a standard practice where certain facts are treated in a uniform manner with regard to their effect as proof of certain other facts.

Presumptions can be classified into certain categories:

  1. Presumption of fact

  2. Presumption of law

  3. Mixed presumption

According to Section 114 of The Indian Evidence Act-

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.

Different types of presumption of law have been provided in section 4.

“May Presume”

The word “may” itself denote ‘expressing possibility’ or ‘expressing or seeking permission’.

The presumptions under the first clause of Section 4 (May Presume) may also be called as “Presumptions of Fact”; “Natural Presumptions”. “Permissive Presumptions”; “Rebuttalble Presumptions”. These presumptions do not constitute a branch of jurisprudence.

According to the first clause of Section 4, whenever it is provided by this Act that the Court may presume a fact,-

(i) It may either regard such fact as proved, unless and until it is disproved; or

(ii) It may call for proof of it.

The word provided in the first clause is weaker than the word directed in the second clause.


The Court may presume-

a. That judicial and official acts have been regularly performed;

b. That the common course of business has been followed in particular cases;

c. That a man who is 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;

Sections 86 to 90-A, 113-A, 114 and 114-A of the Evidence Act provide the necessary presumptions for “may presume”.

“Shall Presume”

The word ‘shall’ itself denotes a “strong assertion or intention or determination”. The presumptions under the Second Clause of Sec. 4 (Shall Presume) may also be called as “Presumptions of Law”; “Artificial Presumptions”, “Obligatory Presumptions”; “Rebuttable Presumptions of Law”. These presumptions constitute a branch of jurisprudence.

According to the second clause of Sec. 4, whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

The word directed in the second clause is stronger and determinative than the word provided in the first clause. The expression shall presume gives no discretion to the Court, but to accept a fact as proved, unless and until it is disproved.

Sections 79 to 85-C, 89 and 105,111-A, 113-B of the Evidence Act provide necessary presumptions for “shall presume”.

Whenever there is a provision to the effect “that the court shall presume a fact” the court cannot exercise its discretion. It is compelled to take the fact as proved, i.e., it shall have to presume the fact. But in this case, the court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in disproving it, the court shall not presume the fact.

“Conclusive proof ”

The word ‘conclusive’ itself denotes a “proving that something is true”, or “ending any doubt”.

When one fact is declared by this Act 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.

When the law says that a particular kind of evidence would be conclusive, that fact can be proved either by that evidence or by some other evidence that the court permits or requires. When such other evidence is adduced, it would be open to the court to consider whether, upon that evidence, the fact exists or not.

The phrase ‘Conclusive proof is found in Sections 41, 112, and 113 of the Evidence Act and S. 82 of the Indian Penal Code.

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