Section 118 of BSA

Allahabad High Court 

Why in News? 

A Bench of Justice Arun Kumar Singh Deshwal, in Seema Devi v. State of U.P. and Another (2026), cancelled the bail granted to a husband accused of dowry death and recommended that an inquiry be initiated against the Additional Sessions Judge who had granted him bail without assigning reasons and in disregard of the statutory presumption under Section 118 of the Bharatiya Sakshya Adhiniyam (BSA). 

What was the Background of Seema Devi v. State of U.P. and Another (2026) Case? 

• The case was registered in 2025 at a police station in District Jalaun under Sections 85 and 80(2) of the Bharatiya Nyaya Sanhita (BNS) and Sections 3 and 4 of the Dowry Prohibition Act, 1961, following the death of a married woman. 
• The accused-husband had earlier secured bail from the Additional Sessions Judge, Court No. 1, Jalaun at Orai. 
• A bail cancellation application was filed before the Allahabad High Court, contending that the deceased had died within seven years of marriage under unnatural circumstances, involving ante-mortem hanging and asphyxia. 
• It was further submitted that there was evidence showing that, soon before her death, the deceased had been subjected to cruelty for non-fulfilment of dowry demands, despite which the trial court had granted bail to the husband. 
• Taking note of these facts, the High Court had earlier directed the Additional Sessions Judge to explain how bail was granted to the husband without assigning reasons and contrary to the presumption under Section 118 of the BSA. 
• In his explanation, Additional Sessions Judge Satish Chandra Dwivedi admitted that there was evidence of harassment on account of dowry demands against the accused, that the deceased had died within seven years of marriage, and that the presumption under Section 118 BSA was attracted. He stated that bail had nonetheless been granted on the ground of parity with the deceased's mother-in-law and father-in-law. 

What were the Court's Observations? 

• On the Arbitrary Exercise of Bail Discretion: 
  The Court held that the trial judge's explanation did not justify the grant of bail, observing that the discretion to grant bail had been arbitrarily exercised. 
• On the Judge's Failure to Justify the Order: 
  The Court noted that the Additional Sessions Judge was unable to explain why bail had been granted to the husband despite sufficient material against him, the presumption under Section 118 BSA, and the complete absence of reasons in the bail order. 
• On the Suspicion Arising from the Order: 
  The Court remarked that this manner of exercising discretion created suspicion, though it clarified that it was not expressing any view on the integrity of the concerned trial judge, and that such an aspect would require examination on the administrative side. 
• On the Need for Administrative Inquiry: 
  The Court directed that the matter be placed before the Administrative Committee to consider whether an inquiry was warranted against the Additional Sessions Judge for the erroneous and arbitrary exercise of power in releasing the accused on bail despite the presumption under Section 118 BSA being attracted. 
• On the Cancellation of Bail: 
  Finding the trial court's order to be absolutely erroneous, the High Court cancelled the bail granted to the accused-husband and directed him to surrender before the concerned Magistrate within ten days. 

What is Section 118 of the Bharatiya Sakshya Adhiniyam, 2023? 

Corresponding Old Provision: Section 113B, Indian Evidence Act, 1872 

Bare Act Text: 

"118. Presumption as to dowry death. — When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 

Explanation. — For the purposes of this section, 'dowry death' shall have the same meaning as in section 80 of the Bharatiya Nyaya Sanhita, 2023." 

Key Features: 

• Nature of the Presumption: The presumption under Section 118 is a presumption of law and is mandatory ("shall presume"), not discretionary — once the foundational facts are established, the Court is bound to presume the accused's guilt, unlike a discretionary presumption ("may presume"). 
• Ingredients to Attract the Presumption:  
  • The death in question must be a "dowry death" as defined under Section 80 of the BNS. 
  • It must be shown that soon before her death, the woman was subjected by the accused to cruelty or harassment. 
  • Such cruelty or harassment must be for, or in connection with, any demand for dowry. 
• "Soon Before Death": The expression "soon before her death" requires proximity in time between the cruelty/harassment and the death; it does not mean immediately before death, but there must be a live and proximate link, not a stale or remote one. 
• Reverse Onus Clause: Once the prosecution establishes the foundational facts, the burden shifts to the accused to rebut the presumption and show that he did not cause the dowry death. 
• Explanation — Meaning of "Dowry Death": The term draws its meaning from Section 80 BNS (corresponding to Section 304B IPC), which defines dowry death as the death of a woman caused by burns, bodily injury, or occurring otherwise than under normal circumstances, within seven years of her marriage, where it is shown that soon before her death she was subjected to cruelty or harassment by her husband or his relatives for, or in connection with, any demand for dowry.