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Issues: (i) whether a case may be split up when an accused cannot be secured within a reasonable time and whether substituted service is permissible in criminal proceedings; (ii) whether proceedings under section 138 of the Negotiable Instruments Act, 1881 can be proceeded with ex parte and whether guilt can be determined in the absence of the accused.
Issue (i): Whether a case may be split up when an accused cannot be secured within a reasonable time and whether substituted service is permissible in criminal proceedings.
Analysis: The applicable criminal procedure permits substituted service where ordinary service fails, including service by affixture under section 65 of the Code of Criminal Procedure, 1973 and service by speed post or courier under section 144 of the Negotiable Instruments Act, 1881. These modes recognise that service other than personal service may be validly effected. If, despite such service and further coercive steps, the accused still cannot be secured within a reasonable time, the proper course is to split up the case under Rule 2 of Chapter IV of the Karnataka Criminal Rules of Practice, 1968 and proceed against the remaining accused present before the Court.
Conclusion: The issue is answered in the affirmative.
Issue (ii): Whether proceedings under section 138 of the Negotiable Instruments Act, 1881 can be proceeded with ex parte and whether guilt can be determined in the absence of the accused.
Analysis: Criminal trial requires the presence of the accused for recording of plea, taking of evidence and, if warranted, passing of conviction and sentence. Section 273 of the Code of Criminal Procedure, 1973 makes the presence of the accused or his pleader mandatory for taking evidence except where law expressly provides otherwise. The summary nature of the trial under section 143 of the Negotiable Instruments Act, 1881 does not convert it into a civil proceeding, and section 144 only provides an additional mode of service; it does not authorise an ex parte adjudication of guilt. Where the accused remains absent even after lawful service and coercive process, the case may be split up, but the trial itself cannot proceed ex parte against the absentee accused.
Conclusion: The issue is answered in the negative.
Final Conclusion: Substituted service is permissible in criminal proceedings, but a criminal trial cannot culminate in an ex parte finding of guilt against an absent accused; if presence cannot be secured within a reasonable time, the case may be split up and proceeded with only against the accused who are before the Court.
Ratio Decidendi: In criminal proceedings, substituted service may validly satisfy service requirements, but the trial and adjudication of guilt must still occur in the presence of the accused or as otherwise expressly permitted by law; absent accused cannot be tried ex parte, and the proper remedy is split-up of the case when their presence cannot be secured.
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