Ex Parte, Discharge, Acquittal and Conviction

An ex parte decree is not a decree obtained by default alone

The plaintiff still has to prove his case. The court hears his evidence and decides on it. What is missing is the defence, not the proof.

Getting back in

Three routes, and a student should know all three.

Order IX rule 7, before the ex parte decree. Where the court has adjourned the hearing ex parte and the defendant appears at or before that hearing and assigns good cause for his previous non-appearance, he may, on such terms as to costs as the court directs, be heard in answer to the suit as if he had appeared on the day fixed.

Order IX rule 13, after the ex parte decree. The defendant may apply to the court that passed it to set it aside, and if he satisfies the court that the summons was not duly served, or that he was prevented by sufficient cause from appearing, the court shall set aside the decree on such terms as to costs or payment into court as it thinks fit and appoint a day for proceeding with the suit.

Section 96(2), an appeal. An appeal may lie from an original decree passed ex parte. So the defendant may either apply to set aside or appeal, and the choice matters because the grounds are different: rule 13 asks about service and sufficient cause, while an appeal attacks the decision on the merits.

The plaintiff's mirror image

If the defendant appears and the plaintiff does not, Order IX rule 8 requires the suit to be dismissed, unless the defendant admits the claim or part of it. Order IX rule 9(1) then bars a fresh suit on the same cause of action, though the plaintiff may apply to set the dismissal aside on showing sufficient cause. Rule 9(2) requires notice of that application to the opposite party.

Ex parte in the criminal law

The phrase is used less often, but the idea appears. Section 356 of the Sanhita provides for an inquiry, trial or judgment in the absence of a proclaimed offender who has absconded and where there is no immediate prospect of arresting him. That is new, and it is a considerable change: under the earlier Code a trial in absentia in that form did not exist.

Discharge

What it is

A discharge is an order releasing an accused from the proceedings before the prosecution evidence has been recorded, because the material does not disclose a case fit to be tried.

Where it happens

In a sessions trial, section 250. The accused may prefer an application for discharge within sixty days from the date of supply of copies of the documents under section 230, and if the Judge, on considering the record and hearing both sides, considers that there is not sufficient ground for proceeding against the accused, he shall discharge him and record reasons.

In a warrant case on a police report, section 262. Sub-section (1) allows the accused to apply for discharge within sixty days from the supply of copies. Sub-section (2) requires the Magistrate, on considering the police report and the documents, and after examining the accused if he thinks fit and hearing both sides, to discharge the accused if he considers the charge to be groundless, recording his reasons.

In a warrant case otherwise than on a police report, section 268(1). If, on taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, he shall discharge him.

The test

Notice the words: "not sufficient ground for proceeding", "groundless", "no case which, if unrebutted, would warrant conviction".

None of them asks whether the accused is innocent. The question is whether there is enough to put him on trial at all. That is why a discharge is not a verdict.

Acquittal

What it is

An acquittal is the court's finding, after the trial, that the prosecution has not proved the guilt of the accused beyond reasonable doubt.

Section 271(1): if, in a case in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

The same result follows at the end of a sessions trial under section 258, and in a summons case under section 275 and the sections around it.

What it means

It is a verdict on the merits. The court has heard the evidence and found it insufficient.

It does not mean the court believes the accused is innocent, though it may. It means guilt was not proved to the required standard. That standard, proof beyond reasonable doubt, is what makes an acquittal compatible with a suspicion of guilt.

It bars a second trial. Article 20(2) of the Constitution: no person shall be prosecuted and punished for the same offence more than once. Section 337 of the Sanhita gives the rule its statutory form: a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not, while the conviction or acquittal remains in force, be liable to be tried again for the same offence.

This bar is the doctrine of autrefois acquit and autrefois convict, French for "previously acquitted" and "previously convicted", and in the general law it is called double jeopardy. It also has an echo in the General Clauses Act, section 26 of which deals with an act punishable under two or more enactments and is worked in [The Miscellaneous Provisions of the General Clauses Act].

Conviction

What it is

A conviction is the court's finding that the accused is guilty of the offence charged, on proof beyond reasonable doubt.

Section 271(2): where the Magistrate finds the accused guilty and does not proceed under section 364 or section 401, he shall pass sentence upon him according to law.

Section 275: if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused, and may in his discretion convict him on it. The word "may" is deliberate: a court is not bound to convict on a plea of guilty, and a careful court will satisfy itself that the plea is understood and unqualified.

Conviction and sentence are two steps

The conviction is the finding of guilt. The sentence is the punishment that follows. Section 355 requires the accused to be heard on the question of sentence in the cases it covers, so that mitigating circumstances can be put before the court. Section 401 allows release on probation or after admonition instead of sentencing.

Keeping the two apart matters because an appeal may be against conviction, or against sentence, or against both.

A worked example

The civil half. Deepak sues Farhan for possession. The summons is served on Farhan personally on 4 January and he does not appear on the date fixed. The court, service being proved, orders the suit to be heard ex parte under Order IX rule 6(1)(a), hears Deepak's evidence and passes a decree. Farhan, who was in hospital, has three routes. If he comes to court on the adjourned ex parte hearing before the decree and shows good cause, Order IX rule 7 lets him in on terms. If the decree has already been passed, Order IX rule 13 lets him apply to set it aside on proof that he was prevented by sufficient cause. And under section 96(2) he may instead appeal against the ex parte decree on the merits.

The criminal half. Farhan is also prosecuted for criminal trespass on the same premises. Three different endings, and each has a different consequence.

If, at the stage of section 262, the Magistrate reads the police report and finds nothing in it that could amount to trespass, he discharges Farhan for reasons recorded. The prosecution is over for now, and if fresh material emerges the matter can be revived, because a discharge is not a verdict.

If the charge is framed, evidence is led, and the Magistrate finds that the prosecution has not proved that Farhan entered with intent to commit an offence, he records an acquittal under section 271(1). Now article 20(2) and section 337 bar a second trial for the same offence while that acquittal stands.

If the Magistrate finds the case proved, he records a conviction, hears Farhan on the question of sentence under section 355, and then passes sentence.

Distinctions table

What these words do NOT mean

Ex parte does not mean unfair or improper. It describes a hearing at which one side was absent, and the Code requires proof of due service before it is allowed.

An ex parte decree is not a decree without proof. The plaintiff must still prove his case; only the defence is missing.

A discharge is not an acquittal. This is the error to avoid. A discharge means there was not enough material to put the accused on trial; an acquittal means the trial was held and the case was not proved.

An acquittal is not a certificate of innocence, though it is often described as one. It is a finding that guilt was not proved beyond reasonable doubt.

A conviction is not a sentence. The conviction is the finding of guilt; the sentence is the punishment, imposed afterwards and, in the cases section 355 covers, only after hearing the accused on it.

Limits and criticism

Order IX rule 13 applications are a standing source of delay. A defendant who has genuinely been misled deserves relief, and the same provision can be used to reopen decrees years later. The safeguard is that the court sets terms as to costs and payment into court.

The discharge stage is criticised from both directions. Some say it is a real filter that spares people a trial they should never have faced; others say Magistrates rarely discharge, so the filter does not work and the sixty-day limits in sections 250 and 262 merely add a step.

Trial in absence of a proclaimed offender under section 356 is new and contested. It answers the problem of the accused who absconds indefinitely, and it sits uncomfortably with the principle that a person should be present at their own trial.

Quick revision

Ex parte: from one side only. Order IX r.6(1)(a), suit heard ex parte where service is proved and the defendant is absent; r.6(1)(b) and (c), second summons or postponement where service is not proved or was late. Remedies: r.7 before decree, r.13 after decree on proof of no service or sufficient cause, or appeal under s.96(2). Plaintiff absent: r.8 dismissal, r.9 bar on a fresh suit with power to set aside.

Discharge: before evidence. BNSS s.250 sessions, s.262 warrant case on police report, s.268 otherwise. Tests: no sufficient ground for proceeding; charge groundless; no case which if unrebutted would warrant conviction. Not a verdict, no bar to fresh proceedings.

Acquittal: after trial. BNSS s.271(1). Guilt not proved beyond reasonable doubt. Barred from re-trial by article 20(2) and BNSS s.337, autrefois acquit.

Conviction: finding of guilt. BNSS s.271(2); s.275 conviction on a plea of guilty, which is discretionary; s.355 hearing on sentence; s.401 probation or admonition. Conviction and sentence are separate steps.

Test yourself

1. When may a suit be heard ex parte, and what must the court do if service is not proved?

Under Order IX rule 6(1)(a) of the Code of Civil Procedure 1908, where the plaintiff appears and the defendant does not when the suit is called on, and it is proved that the summons was duly served, the court may order the suit to be heard ex parte. Where service is not proved, rule 6(1)(b) requires the court to direct a second summons to be issued and served; and where it was served but not in sufficient time to allow the defendant to appear and answer, rule 6(1)(c) requires the hearing to be postponed.

2. Distinguish a discharge from an acquittal.

A discharge is made before the prosecution evidence, at the charge stage, on the test whether there is sufficient ground for proceeding, whether the charge is groundless, or whether any case has been made out which if unrebutted would warrant conviction: sections 250, 262 and 268 of the Bharatiya Nagarik Suraksha Sanhita 2023. An acquittal comes after the trial, under section 271(1), on the finding that guilt has not been proved beyond reasonable doubt. A discharge is not a verdict and does not bar a fresh proceeding if better material emerges; an acquittal is a verdict and bars a second trial under article 20(2) and section 337.

3. What are the remedies of a defendant against whom an ex parte decree has been passed?

He may apply under Order IX rule 13 to the court that passed the decree to set it aside, and the court shall do so if satisfied that the summons was not duly served or that he was prevented by sufficient cause from appearing, on such terms as to costs or payment into court as it thinks fit. Alternatively he may appeal, because section 96(2) provides that an appeal may lie from an original decree passed ex parte. Before the decree is passed, Order IX rule 7 allows him to be heard on assigning good cause for his earlier non-appearance.

4. What does article 20(2) protect against, and what is its statutory counterpart?

Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once, which is the rule against double jeopardy and is expressed in the pleas of autrefois acquit and autrefois convict. Its statutory counterpart is section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023, under which a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not, while that conviction or acquittal remains in force, be liable to be tried again for the same offence.

5. Must a court convict an accused who pleads guilty?

No. Section 275 of the Sanhita provides that if the accused pleads guilty the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. The word is permissive, so the court retains a discretion, and it will ordinarily satisfy itself that the plea is unqualified, that the accused understands what he is admitting, and that the facts admitted amount in law to the offence charged.

6. Are conviction and sentence the same thing?

No. The conviction is the court's finding that the accused is guilty; the sentence is the punishment imposed afterwards. Section 271(2) requires the Magistrate who finds the accused guilty to pass sentence according to law unless he proceeds under section 364 or section 401, and section 355 requires the accused to be heard on the question of sentence in the cases it covers. The distinction matters because an appeal may be brought against the conviction, against the sentence, or against both.