INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Jitesh Lakra, AZB & Partners
for the perpetrator, criminal proceedings are more appropriate. The standard of proof required to hold against the per - petrator is different in both cases. In civil proceedings, it is sufficient for the victim to show on “preponder - ance of probabilities” that the perpetrator is at fault, whereas in criminal proceedings it is the duty of the prosecution (for example, the State) to show that the perpetrator is liable “beyond reasonable doubt”. While in theory both proceedings are independent and do not have a bearing on each other, in practice an adverse ruling in one may be prejudicial for the party in the second proceeding, depending on the facts dealt with and whether the conviction precedes the civil determination. 2.6 Judgment Without Trial Criminal Proceedings The BNSS does not provide for the obtaining of judg - ments without a full trial being conducted. However, if an accused is absconding and there is no immediate prospect of arrest, the court may record evidence in their absence, which may later be used against the accused when the trial can take place. The court may also dispense with the presence of the accused if it is satisfied that their presence is not necessary or that the accused has persistently disturbed the court proceedings. In fact, the Supreme Court of India has noted that absconding persons cause undue delay in adjudication of trials and the CrPC needed to be amended to allow for “trial in absentia”. In view of such suggestions, the BNSS has (for the first time) introduced provisions relating to conduct - ing a trial of an accused person in absentia. Under Section 356 of the BNSS, trial in absentia may be conducted if three conditions are satisfied, namely: • the accused person is declared as a proclaimed offender under Section 84 of the BNSS; • they have absconded to evade trial; and • there is no immediate prospect of arresting them. Thus, the BNSS provides for pronouncement of judg - ment in such trials, with the further stipulation that an appeal therefrom can only be preferred if the pro -
claimed offender presents themselves before the Court of Appeal. Civil Proceedings The courts can also issue an ex parte decree in a defendant’s absence, provided that sufficient oppor - tunity has been provided to the defendant and despite which the defendant failed to appear before such court or has failed to file a written statement. However, in such cases also, a plaintiff is still required to prove their case to obtain an ex parte decree. For civil cases, the CPC also allows filing an appli - cation seeking a summary judgment in certain com - mercial disputes. Under Order XIII-A of the CPC, read with the CC Act, the court may give a summary judgment where the defendant has no real prospect of successfully defending the claim and there is no other compelling reason for why the claim should not be disposed of without proceeding to trial. The CPC, read along with the CC Act, also empowers the court to pronounce judgment at the first hearing of the suit itself when it appears that the parties are not at issue on any question of law or fact. Moreover, there is also a separate provision for institu - tion of summary suits that involve the plaintiff seek - ing recovery from the defendant for an ascertainable amount. In such suits, the defendant may defend the claim only with the court’s leave; if leave is refused, the suit is decreed in favour of the plaintiff. 2.7 Rules for Pleading Fraud Courts in India have adopted an expansive and inclu - sive definition of fraud. The primary component that must be alleged and proved in such claims is estab - lishing that the claimant was fraudulently or dishon - estly induced to act in a certain manner by the perpe - trator. While proving that a wrongful gain was caused to the perpetrator and a wrongful loss was caused to the claimant may not be necessary in every instance, the Supreme Court of India has repeatedly held that fraud must be pleaded with specific particulars and that the case can only be decided on the basis of those particulars. Mere bald allegations or pleadings of fraud are not sufficient. Order VI Rule 4 of the CPC similarly requires that pleadings relying on any mis - representation, fraud, breach of trust, wilful default
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