V. S. DAVE, J. - (1.) THIS is a petition under S. 482 Cr. P. C. challenging the order passed by Addl. Sessions Judge No. 1 Kota upholding the order of Addl. Chief Judicial 'magistrate No. 3 Kota by which he granted maintenance to the non-petitioner, Anis Fatma, in an application under S, 125 Cr. P. C. THIS petition comes in peculiar circumstances where the ex-parte order has been passed against the petitioner. It is not necessary to narrate the facts on merits of the main case as I am not deciding this case on merits. By an ex-parte order, dated ,23. 687-, the trial court awarded maintenance of Rs. 250/- per month for the non-petitioner and an equal amount for her daughters making a total of Rs. 500/- The only point raised in this petition is that the ex parte order should be set aside in the inherent powers of this court and the case be remanded to the trial court for proceeding in accordance with law. The petitioner's grievance is that no service was effected on him and he learnt about the order only from a newspaper cutting and no sooner did he learnt about it, he filed a revision petition on 14. 7. 87 before learned Addl. Sessions Judge No. 1 Kota and the learned Judge did not objectively consider the question of service and dismissed the revision petition. He, therefore, submits that there was no alternative remedy available to him except to invoke the extraordinary jurisdiction of this court. It is submitted on behalf of the petitioner that under the Code of Criminal Procedure a specific procedure for effecting the service is provided and the trial court has not at all complied with the said provisions. It is submitted that the courts below have not at all looked into S. 68 Cr. P. C. and in the absence of the compliance of the same the ex-parte order is no order in the eye of law and deserves to be set aside. Learned counsel for the petitioner has placed reliance on Gurnam Singh Vs. Mt Datto, (1), Parambot Thayumny Balakrishna Menon Vs. Govind Krishnan (2), C. A. George Vs. Chacko Joseph (3), Paholrajrai V. Jethi Bai, (4), Surajbhan Singh V. Smt. Tej Kanwar (5) S. Thulasingam Vs. Padmavathi Animal; (6) and Revappa Vs. Gurusanthawwa (7 ).
(2.) LEARNED counsel for the non-petitioner submitted that no petition under S. 482 Cr. P. C, is maintainable when there was a specific remedy available to the petitioner under the proviso to S. 126 (2) Cr. PC. It is submitted that according to this proviso if the court is satisfied that the petitioner is guilty of wilfully avoiding service or wilfully neglecting to attend the court, the Magistrate may decide the case exparte and his order can only be set aside for good cause, if an application is made within 3 months from the date of order subject to certain terms including the terms of cost against the other party. It is submitted that since no application has been moved within 3 months for setting aside the exparte order this petition should not be entertained. It is then submitted that there is enough evidence in the form of order sheet to show that effective steps have been taken for getting service effected and when the court was satisfied after obtaining a report from the post-office that the registry has been served, then alone the court has proceeded exparte. In this view of the matter it is submitted that it should be considered to be a case of wilfully avoiding service or neglecting to attend the court. LEARNED counsel has placed reliance in support of his arguments on Fatima Sultana Begum Vs. Rang Rao, (8), Chitawan Vs. Mahboob Ilahi (9), Fatumal Dayaram Vs. Rael Samsoon (10), Ram Charev Vs. Baba Ram Priya Das, (11), Mahesh Vs. State (12), Ram Shanker Vs. State (13), Talab Hali Hussain Vs. Madhukar Purshottam (14) and Savitri Vs. Shri Govind Singh Rawat (15 ). I have considered the rival contentions and have perused the record. This case presents unusual features that, though it appears from the order sheets that notices have been ordered to be issued from time to time but there are neither the notices on record nor there are marginal notes shown by his office that notices have been issued on particular dates in the name of the petitioner. What is available on the record is talbana, dated 7. 2. 87 on the basis of which a notice for 25. 4. 87 was issued under the signatures of the learned counsel dated 4 3. 87. This is in form prescribed for issuing summons in a civil case and it is not known whether it was sent through the process server or was sent through the concerned police station. Then there is a letter from the Senior Superintendent of Post Office that the letter under reference has been delivered. There is one more talbana form submitted on 16. 1. 88 for 13. . 88 but again it is not indicated how the same was sought to be served. Under the Code of Criminal Procedure the legislation has enacted the whole Chapter VI regarding issuance of process to compel the appearance of party in criminal cases and further mode is prescribed that it should be served by a police official. It is only in respect of summons on the corporation that the summons can be served by post as contemplated by S. 63 Cr. P. C. else whenever the court requires a proof of service mode is prescribed in S. 68. Besides the above service of summons by post is permissible on witnesses also. A reading of Ss. 62 to 69 Cr. P. C. make it absolutely clear that service of summons has to be effected through a police officer and cannot be considered sufficient even if a letter is obtained from the police station. To appreciate the point regarding mode of service and passing exparte order two things have to be taken into consideration and it can safely be divided in two parts-one is the mode of service and another is how to proceed exparte. Coming to the first part it is essential to quote Ss. 62,68 and 69 Cr. P. C. which falls within Chapter VI Cr. P C. : "s. 62. Summons how served (1) - Every summons shall be served by a police officer, or subject to such rule as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. (2) The summons shall, if practicable, be served personally on the person summoned, by delivering or rendering to him one of the duplicate of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. " "s. 68 - Proof of service in such cases and when serving officer not present - (1) When a summons issued by a court is served outside its local jurisdiction and in any case where the officer who has served a summons is riot present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served and a duplicate of the summons purporting to be endorsed in the manner provided by S. 62 or 64) by the person to whom it was delivered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be denied to be correct unless and until the contrary is proved. (2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court. "s. 69. Service of summons on witness by post (1) Notwithstanding anything contained in the preceding section of this Chapter, a court issuing a summons to a witness may,- in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries oh business or personally works for gain. (2) When an acknowledgment purporting to being signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the court issuing summons may declare that the summons has been duly served. " S. 68 qua S. 408 Cr. P. C. 1898 which is equivalent to S. 125 Cr. P. C. 1973 had been subject matter of debate in several cases before different High Courts and a few of them are mentioned below: In Gurnam Singh Vs. Mt. Datto (Supra) which was a case under S. 488 Cr. P. C. equivalent to S. 125 Cr. P. C. 1973, where his Lordship observed as under: "the proceedings under S. 488 are judicial proceeding of a criminal court and are governed by the Code. S. 68 applies to summons to accused as well as persons summoned in proceedings under the Code. The service of summons by registered post letter on the person proceeded against under S. , 488 is not permitted. In such a case the person cannot be proceeded against exparte under the proviso to S. 488. " In C. A. George Vs. Chacko Joseph (Supra) which was again a case under S. 488 Cr. P. C. 1898; the court held as under: "to issue notice through post is not a procedure warranted by the Code of Criminal Procedure for compelling appearance of parties in court. As in such a case the procedure prescribed in Chapter VI of the Code for compell-ing appearance of parties has not been followed the Magistrate has no jurisdiction to determine the case 'ex parte' and there is a good cause for setting aside the 'ex-party' order. " In Revappa Vs. Gurusanthawwa (supra) it was held that, "the summons in proceedings under S. 488 Cr. P. C, should be signed by the Presiding Officer and the same should be served by a police officer. There is no distinction between the 'service' as mentioned in Sub-S. (6) of S. 488 Cr. P. C. and summons referred in S. 68 of the Cr. P. C. In an application under S. 488 Cr. P. C. filed in a Munsiff-cum-judicial Magistrate's court the Magistrate was absent and so the Head Munshi issued a notice to respondent through a process server of the Munsiff's court who reported that the respondent refused to accept the notice. " It was held- (i) that the notice issued was not valid; (ii) that illustration (o) to S. 114 Evidence Act had no application to the case, (iii) that the errors and irregularities in the process were not curable under S. 537 Cr. P. C. "
(3.) IN Paramboy Thayumni Balakrishana Menon Vs. Govind Krishan (supra) the Court held that, "there had been no service of the summons in accordance with the provisions of s. 69 of the Code and the court was not justified in proceeding ex-party, passing an order ex-party. The Government servant must have had knowledge of the summons having been received in the office. But it was not enough. The principles laid down for service of summons in civil cases could not be applied to service of summons in criminal courts. IN S. Thulasingam Vs. Padmavathi Ammal (supra) Madras High Court held: - "service by registered post in case of proceedings under S. 488 Cr. P. C. is not a proper service since this mode is not one of the modes mentioned in Chapter VI which relates to service of summons except in the single instance of summons to an incorporated Company. Consequently a person who has been served by registered post cannot be set down ex-party on his failure to appear". IN Paholrajrai Vs. Jethi Bai (supra) it has been held as under: "service of notice has to be effected as contemplated under S. 68 read with Ss. 69 & 70 of the Code before making an ex-party order against the husband under S. 488. Mere publication of the notice in the Government Gazette cannot serve the purpose of notice as understood under S. 68 read with S. 69 unless provision to that effect has been made by the State Govern-ment. For, under the provisions of the said sections not only the summons must issue but it must be served. IN the absence of any express direction by State Government, by a police officer or by an officer of the court issuing it or by any other public servant. IN the absence of the service of summons the ex-party order made under S. 488 is liable to be set aside". On perusal of the aforesaid cases I have no doubt in my mind that while effecting the service even in case under S. 125 Cr. P. C. S. 68 Cr. P C. cannot be ignored. Service has to be effected in the manner provided under S. 62 and the proof of service is to be given under S. 68 Cr. P. C. even if the person is not available even after exercise of due diligence. S. 64 provides that the summons may be served by leaving one of the"duplicates for him with such adult male member of the family residing with him. However, according to the explanation given in the section servant has not been considered to be a member of the family within the meaning of the section. Considering the facts and circumstances of the present case in the light of the cases discussed above it can safely be said that the provision of Ss. 62 and 68 Cr. P. C. have not been followed at all. IN the instant case it is even not known as to whether the notices have been sent through police officer or by process server in civil court. It is also not borne out as to whether they have been sent on the correct address or not became even the duplicates have not been maintained on record. Thus, there is no service in eye of law upon the petitioner of the petition under S. 125 Cr. P. C. at all. So far as sending the same by registered post is concerned that has been considered, to be a proper mode of service in cases of individuals, the same is permissible only in respect of summons of corporation under S. 63 Cr. P. C. Thus, that would not apply. There is yet another aspect of the matter which has been consi-dered by my brother Hon'ble M. B. Sharma J. in Sooraj Bhan vs. Tej Kanwar (supra ). IN this case he has discussed in detail the applicability of Sec. 68 (1) Cr. P. C. and held that unless the affidavit is filed as required under Sec 68 (1) Cr. P. C. it cannot be said that service of summons was in accordance with law and thus there will be no service in accordance with law. He has also considered yet another aspect wherein he has held that without recording that the petitioner against whom an order of maintenance is proposed to be made is wilfully avoid-ing or wilfully neglecting to attend the court, the learned Magistrate lacked inherent jurisdiction to proceed to appear and determine the case ex-party. IN such a case, if an application to set aside exparty order is made, which, as already stated earlier, was not in accordance with law. The period prescribed in the proviso to Sub-Sec. (2) of S. 126 Cr. P. C. for making an application to set aside the exparte order will not apply and this authority is applicable with full force in the facts of the present case also on the point that interference can be done under the inherent powers. Regarding invoking the proviso to S. 126 (2) Cr. P. C. suffice it to say that that would only apply in cases where a satisfaction has been recorded by the Magistrate that it was a case of wilfully avoiding the service or wilfully neglecting to attend the court. But in case where service is not sought to be effected by mode prescribed by law, there is no question of satisfaction at all. Learned counsel for the respondent has relied on several cases on this aspect of the matter. He relied on Ram Charey Vs. Baba Ram Priya Das (Supra) wherein it was held that the inherent powers of the High Court as well as of the criminal court generally are wide but the powers so recognised by law are designed to meet only those cases for which there is no provision in the Code. Reference was then made to Chitawa Vs. Mahoob Ilahi (Supra) wherein Allahabad High Court held that the inherent powers cannot be invoked in respect of any matter covered by the specific provisions of the Code. It can also not be invoked if its exercise would be inconsistent with the specific provision of the Code. ;