Introduction
In the early hours of 24 October 2001, police raided a room in Mumbra, near Mumbai, and found four men, a foreign pistol, and a stack of Urdu periodicals. The prosecution's theory was straightforward: the men belonged to a banned outfit and had gathered arms to wage war against the Government of India. A trial court convicted them under Section 122 of the Indian Penal Code and sentenced them to life imprisonment. Five years later, the Bombay High Court set that conviction aside — not because the arms weren't real, but because the prosecution never proved the one thing the law required before a court could presume guilt at all.
That case is the clearest illustration available of how Section 115 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) actually operates in a courtroom. Section 115 is a narrow, tightly conditioned exception to the ordinary rule that the prosecution must prove guilt — a presumption that can only be triggered once two specific facts are independently established. This article covers the provision's text, the two-step foundation a court must find before the presumption arises, and the 2006 ruling that shows what happens when the prosecution skips that foundation.
115. Presumption as to certain offences.
(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.
Section 115 corresponds to Section 111A of the Indian Evidence Act, 1872, added to the older Act in the 1980s against the backdrop of insurgency in Punjab and Jammu & Kashmir. The wording carries over unchanged — the only difference is that the four penal-code offences it points to have been renumbered from the Indian Penal Code to the Bharatiya Nyaya Sanhita, 2023: waging war (IPC 121 → BNS 147), conspiracy to wage war (IPC 121A → BNS 148), collecting arms to wage war (IPC 122 → BNS 149), and concealing a design to wage war (IPC 123 → BNS 150). Each pairing matches offence-for-offence; nothing about which conduct triggers the presumption has changed.
Two Facts the Prosecution Must Prove Before Any Presumption Arises
Section 115's structure is easy to misread as an automatic reversal of the burden of proof the moment one of the four listed offences is charged. It isn't. The presumption only switches on after the prosecution independently establishes two separate foundational facts — proof the statute does not relax or presume in the prosecution's favour.
Skip either of the first two steps, and the third never triggers. This is the exact gap that decided the Mumbra case.
Javed Bhatt v. State of Maharashtra: The Presumption That Never Arose
In Javed @ Java Ahmed Mohammed Akbar Bhatt v. State of Maharashtra, 2007 Cri LJ 1386, the Bombay High Court considered an appeal from a conviction under Section 122 IPC (now Section 149 BNS) and a life sentence, arising from the Mumbra raid described above. The prosecution had relied heavily on the accused's alleged membership of a proscribed organisation and their origin from Jammu & Kashmir, alongside recovery of a pistol and Urdu literature, and argued that Section 111A IEA's presumption should carry the case the rest of the way.
The Court disagreed. It held that the conviction under Section 122 IPC could not stand because the prosecution had not established that the collection of arms was for the purpose of waging war — mere unlicensed possession did not meet that threshold. Turning specifically to Section 111A, the bench held that the presumption "cannot be drawn" because the prosecution had not shown either foundational fact: it never established that Mumbra was a declared or de facto disturbed area, and it never showed that firearms had been used at that place against armed or public-order forces. With neither fact proved, the presumption simply never came into existence to be relied on. The Section 122 IPC conviction and life sentence were set aside — though the separate Arms Act convictions for unlicensed possession, resting on their own footing, were left undisturbed.
Applying the Same Logic to Two Different Facts
Suppose police recover explosives from a room in a district that a state government has formally notified as a disturbed area, and evidence shows those explosives were detonated there against a patrolling army unit two weeks earlier. Both foundational facts are on record — the area's status and the specific use of explosives against the forces — so Section 115's presumption of guilt attaches to the occupant charged under the corresponding BNS offence, and the burden shifts to that accused to show the contrary.
Now suppose the same recovery happens in an ordinary residential locality with no notification and no evidence that any weapon was ever fired at anyone. Following Javed Bhatt, Section 115 has nothing to attach to — the prosecution must prove its case under the ordinary rules, ammunition and all, because neither the "disturbed area" fact nor the "used against the forces" fact has been made out.
A Presumption With Very Narrow Teeth
In practice, Section 115 is invoked far less often than its four listed offences might suggest. "Disturbed area" declarations exist only in specific, historically insurgency-affected regions and specific windows of time, and the second condition — firearms or explosives actually discharged at that exact place against armed or public-order forces — is a demanding, specific evidentiary requirement rather than a general atmosphere of unrest. Javed Bhatt shows what happens to prosecutions that treat the provision as a general-purpose shortcut for terrorism-adjacent cases: without the two foundational facts nailed down first, the presumption gives the prosecution nothing extra to lean on, and the case is judged on ordinary evidence like any other.
Key Takeaways
- Section 115 BSA carries forward Section 111A IEA unchanged, with only its four referenced offences renumbered from the IPC to the corresponding BNS sections (147-150).
- The presumption is not automatic: the prosecution must first independently prove (a) the area's disturbed status and (b) that firearms or explosives were used there against armed or public-order forces.
- Javed Bhatt v. State of Maharashtra, 2007 Cri LJ 1386, set aside a life sentence because neither foundational fact had been established — proof of unlicensed weapons alone was not enough.
- Even where the presumption does arise, it is rebuttable: the accused may still show the contrary once the burden shifts.
- Within Chapter VII's general rule that the prosecution bears the burden of proof, Section 115 is among the narrowest and most conditionally triggered exceptions.
Conclusion
Section 115 exists for a genuine, narrow category of cases — armed confrontations with the state's own forces in areas already marked by sustained unrest — and it demands the prosecution do real work before it can lean on a presumption rather than direct proof. Javed Bhatt is the cautionary tale for treating it as a shortcut: a life sentence built on a presumption that was never actually earned did not survive appeal. Chapter VII's descent through the burden-of-proof provisions continues next at Section 114.