INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Tanmay Sharma and Bhanu Jindal, AZB & Partners
have repeatedly warned against giving a criminal cloak to purely civil/contractual disputes. In practice, the route chosen by victims depends on what form of redress they are seeking. In India, there are limited provisions for providing compensation to victims in criminal proceedings. The granting of such compensation is recover - able from the fine imposed by the court, and is subject to the discretion of the court. Hence, if the overarching goal of initiation of proceed - ings is recovery, a victim will be well advised to pursue civil proceedings; but, if the goal is to seek punishment for the perpetrator, criminal proceedings may be a better option. The standard of proof required to hold against the perpetrator is different in both cases. In civ - il proceedings, it is sufficient for the victim to show on “preponderance 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 independ - ent and do not have a bearing on each other, in practice an adverse ruling in one may be preju - dicial 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 There are no provisions under the BNSS that allow for the obtaining of a judgment without a full trial being conducted. However, if an accused is absconding and there is no immediate pros - pect of arresting them, the BNSS provides for the recording of evidence against the accused in their absence. Such evidence may then be used against the accused when their 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 proceed - ings. In fact, the Supreme Court of India has not - ed 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 conducting a trial of an accused person in absentia. Section 356 of the BNSS envisages trial in absentia if three conditions are satisfied, namely: • the accused person is declared as a pro - claimed offender under Section 84 of the BNSS; • they have absconded to evade trial; and • there is no immediate prospect of arresting them. Consequently, the BNSS provides for pro - nouncement of judgment for an in absentia trial conducted regarding an accused, with the fur - ther stipulation that an appeal therefrom can only be preferred if the proclaimed 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 opportunity has been provided to the defend - ant 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 his case to obtain an ex parte decree. For civil cases, the CPC also provides for the claimant filing an application before the court
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