JUDGMENT 1. - This is a petition under Section 432 Criminal Procedure Code 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 23.6.87, 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 i.e. remanded to the trial court for proceeding in accordance with law. The petitioner's grievance is that no service was effected on hint and he learnt about the order only from a newspaper cutting and no sooner did he learn 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 ail complied with the said provisions. It is submitted that the courts below have not at all looked into Section 68 Criminal Procedure Code 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 v. Mt. Datto, AIR (37) 1950 East Punjab 20 , Parambot Thvumni Balakirshna Menon v. Govind Krishnan and Anr., AIR 1959 Madras 165 , C.A. George Vs. Chacko Joseph and another, AIR 1954 Tra. Co. Datto, AIR (37) 1950 East Punjab 20 , Parambot Thvumni Balakirshna Menon v. Govind Krishnan and Anr., AIR 1959 Madras 165 , C.A. George Vs. Chacko Joseph and another, AIR 1954 Tra. Co. 116 , Paholajrai v. Jethi Bai, AIR 1959 Pataa 433 , Surajbhan Singh v. Smt. Tej Kanwar : Cr.L R.(Raj.) 1986 P. 583 , S. Thulasingam v. Padmaavathi Ammal : 1963 (1) Cr.L.J. 546 , Revappa v. Gurusanthawwa: AIR 1960 Mysore 198 . 2. Learned counsel for the non-petitioner submitted that no petition under Section 482 Criminal procedure Code, is maintainable when there was a specific remedy available to the petitioner under the proviso to Section 126 (2) Criminal Procedure Code 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 ex-parte 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 ex-parte 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 ex-parte. In this view of the matter it is submitted that is 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 v. Rang Rao, AIR 1954 Hyderabad 215 . Chitawan and others v. Mahboob Mahi, 1970 Cr. L. J 378, (Ahahabad) , Fatumal Dayaram v. Rael Samson and Anr., 1970 Gujarat Law Reporter 1024 , Ram Charts Vs Baba Ram Priva Das, AIR 1951 All. 435 Mahesh Vs. State, 1971 Cr. L.J. 1674 , Ram Shanker Vs State, Cr. L.J. 1972 P. 1544 , Talab Hali Hussain Vs. Madhukar Purshottam and another, AIR 1958 SC 376 and Savitri v. Shri Govind Singh Rawat, Cr. L.R. 1986 (SC) 1 . 3. 435 Mahesh Vs. State, 1971 Cr. L.J. 1674 , Ram Shanker Vs State, Cr. L.J. 1972 P. 1544 , Talab Hali Hussain Vs. Madhukar Purshottam and another, AIR 1958 SC 376 and Savitri v. Shri Govind Singh Rawat, Cr. L.R. 1986 (SC) 1 . 3. I have considered the rival contentions and have perused the record. 4. 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 13.3.88 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 Section 63 Criminal procedure code 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 Sections 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. 5. Besides the above service of summons by post is permissible on witnesses also. A reading of Sections 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. 5. To appreciate the point regarding mode of service and passing ex parte 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 ex parte. Coming to the first part it is essential to quote Sections 62, 68 and 69 Cr. P. C. which falls within Chapter VI Cr. P. C. : 'S. 62. Summons bow served-Every summons shall he 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 not 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. Q or Section 64) by the person to whom it was delivered or tendered or with whom it was left. shall be admissible in evidence, and the statements made therein shall be deemed 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. shall be admissible in evidence, and the statements made therein shall be deemed 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 ibid 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 on business or personally works for gain. (2) When an acknowledgement 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." Section 68 qua Section 408 Criminal Procedure Code 1898 which is equivalent to Section 125 Criminal Procedure Code 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 v. Mt. Datto : AIR 1950 East Punjab 20 which was a case under Section 488 Criminal Procedure Code equivalent to Section 125 Criminal Procedure Code 1973 where his Lordship observed as under : "The proceedings under Section 488 are judicial proceeding of a criminal court and are governed by the Code. Section 68 applies to summons to accused as well as persons summoned in proceedings under the Code. The service of summons by registered post later on the person proceeded against under Section 448 is not permitted. In such a case the person cannot be proceeded against exparte under the provision to S 488." In C. A. George v. Chacko Joseph and another: AIR 1954 Tra. Co. 116 which was again a case under Section 488 Criminal Procedure Code 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. Co. 116 which was again a case under Section 488 Criminal Procedure Code 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 compelling 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 parte' order." In Revappa v. Gurusanthawwa : AIR 1960 Mysore 198 it was held that, "the summons in proceedings under Section 488 Criminal Procedure Code 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 Section 488 Criminal Procedure Code and summons referred in Section 68 of the Criminal Procedure Code. 6. In an application under Section 489 Criminal Procedure Code filed in a Munsif-cum-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 Section 114 Evidence Act had no application to the case, (iii) that the errors and irregularities in the process were not curable under Section 537 Criminal Procedure Code." 7. In Paramboy Thayumni Balakrishana Menon v. Govind Krishnan and Anr., AIR 1959 Madras 165 , the Court held that, "there had been no service of the summons in accordance with the provisions of Section 69 of the Code and the court was not justified in proceeding ex-parte, passing an order ex-parte. 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 v. Padmavathi Ammal : 1963(1) Cr. 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 v. Padmavathi Ammal : 1963(1) Cr. L.J. 546 Madras High Court held : "Service by registered post in case of proceedings under Section 488 Criminal Procedure Code is not a proper service since this mode is nor one of the modes mentioned in Chapter VI which relates to service of summons except in the single instance of summon to an incorporated Company. Consequently a person who has been served by registered post cannot be set down ex-parte on his failure to appear". In Paholrajrai v. Jethi Bai, AIR 1959 Patna 433 it has been held as under : "Service of notice has to be effected as contemplated under Section 68 read with Sections 69 and 70 of the Code before making an ex-parte order against the husband under Section 488. Mere publication of the notice in the Government Gazette cannot serve the purpose of notice as understood under Section 68 read with Section 69 unless provision to that effect has been made by the State Government. 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-parte order made under Section 488 is liable to be set aside". On perusal of the aforesaid cases I have ne doubt in my mind that while effecting the service even in case under Section 125 Criminal Procedure Code, Section 68 Cr. P.C cannot be ignored. Service has to be effected in the manner provided under Section 62 and the proof of service is to be given under Section 68 Criminal Procedure Code even if the person is not available even after exercise of due diligence. Section 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. Section 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 Sections 62 and 68 Cr.P.C. have not been followed at all. In the instant case it is even not known as to whetter 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 because even the duplicates have not been maintained on record. Thus, there is no service to eye of law upon the petitioner of the petition under Section 63 Cr.P.C. Thus, that would not apply. There is yet another aspect of the matter which has been considered by my brother Hon'ble M.B. Sharma J. in Sooraj Bhan v. Tej Kanwar, 1986 Cr.L.R. 583 . In this case he has discussed in detail the applicability of Section 68 (1) Cr.P.C and held that unless the affidavit is filed as required under Section 68 (1) Criminal Procedure Code 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 avoiding or wilfully neglecting to attend the court, the learned Magistrate lacked inherent jurisdiction to proceed to appear and determine the case ex parte. In such a case, if an application to set aside ex parte 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 Section 126 Criminal Procedure Code for making an application to set aside the ex parte 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. 8. The period prescribed in the proviso to Sub-Sec. (2) of Section 126 Criminal Procedure Code for making an application to set aside the ex parte 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. 8. Regarding invoking the proviso to Section 126 (2) Criminal Procedure Code 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 a case where service is not sought to be effected by mode prescribed by law, there is no question of satisfaction at all. 9. Learned counsel for the respondent has relied on several cases on this aspect of the matter. He relied on Ram Cherey v. Baba Ram Peiya Das AIR 1951 All. 435 wherein it was held that the inherent powers of the High Court as well as of the criminal courts 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 Chitawan, and others v. Mabboob Tlahi 1970 Cr.L.J. 378 wherein Allahabad High Court held that the inherent powers cannot he invoked in respect of any matter covered by the specific provisions of the Code. It can also not he invoked if its exercise would be inconsistent with the specific prevision of the Code. 10. In Mahesh v. State 1971, Cr. L.J. 1674 , the same view has been taken, where the Full Bench of Allahabad High Court held that, "the inherent power under Section 561A Criminal Procedure Code cannot be invoked in respect of any matter covered by the specific provision of the Code, nor it can be exercised contrary to or inconsistent with such provisions". 11. In Fatima Sultana Begum v. Rang Rao, AIR 1954 Hyd. 215 , it was held that the inherent powers of the Court to do justice cannot be exercised in disregard with the express provisions contained in the Code. 12. Reliance was then placed on a decision reported in Fatumal Dayaram v. Real Samson and Anr. 11. In Fatima Sultana Begum v. Rang Rao, AIR 1954 Hyd. 215 , it was held that the inherent powers of the Court to do justice cannot be exercised in disregard with the express provisions contained in the Code. 12. Reliance was then placed on a decision reported in Fatumal Dayaram v. Real Samson and Anr. 1970 Gujarat Law Reporter 1024 wherein also it has been held that when an express provision is made in the Code in respect of particular matter the inherent powers under Section 561A Cr.P.C. are not available. 13. Relying on the following observations made by their Lordships of the Supreme Court in Talab Hali Hussain v. Madhukar Purshottam Mondkar and another AIR 1958 SC 376 , that it is only when ends of justice are put in jeopardy by the conduct of the accused that the inherent powers can and should be exercised in cases like the present. 14. It is submitted that the conduct of the petitioner in this case is not such so as to interfere under Section 482 Criminal Procedure Code. I have carefully gone through all the cases. There cannot be two opinions on the proposition laid down in the aforesaid cases but the question is whether they are applicable in the circumstances of the present case. This has been considered as I have stated above by Hon'ble M.B. Sharma J. in a case reported in Surajbhan Singh v. Smt. Tej Kanwar (supra). But besides that I would like to observe that in a case like the present one it does not run counter or against the spirit of Section 126 (2) Criminal Procedure Code but it can be invoked in order to give effect to the provision of that law. Section 482 Criminal Procedure Code has to be invoked in three circumstances. This has been held times without number that whenever it is necessary to give effect to any order under the Code or to prevent the abuse of the process of any court or otherwise to secure the ends of justice that court can exerise its inherent powers on which there is no sealing (sic). Proviso to Section 120 (2) Criminal Procedure Code can only be invoked when the Magistrate has recorded his satisfaction and there was service in accordance with law. Proviso to Section 120 (2) Criminal Procedure Code can only be invoked when the Magistrate has recorded his satisfaction and there was service in accordance with law. If there was no service at all and even the basic provisions of Sections 62 to 68 had not been complied with it cannot be said that there were any valid proceedings under Section 125 Criminal Procedure Code from the stage of issuing the process and in such eventuality provisions of Section 482 Criminal Procedure Code if invoked would be supplementary to the provisions of Section 16 (2) Criminal Procedure Code ratter than running counter to it. The arguments, therefore, of the learned counsel are without force and are rejected. 15. Regarding another argument of the learned counsel that no application has been filed within 3 months' period before the learned Magistrate, suffice it to say that even assuming that it was essential then too a client cannot be punished for not being properly advised in this matter. The application for revision against the order was filed within 11 days of passing order by the trial court and the revision petition its, if has been disposed of within 3 months of the passing of the original order, therefore had the application for setting aside been moved in the trial court, under proper advise, there was enough time and application even then would have been within limitation. Thus it cannot be said that the petitioner wanted to circumvent the provisions of law deliberately. On the contrary there is ground for inferring that if at all it was not filed it was under mistaken advice and I would not agree that he cannot be permitted to agitate about setting aside the order, for want of proper advice. The prejudice is not caused to the non-petitioner applicant because even if her application is to be allowed on merits, subsequently, the law provides for awarding the maintenance from the date of application and then she can be adequately compensated by payment of cost. 16. It would accordingly allow the application, set aside the ex parte order, dated 23.6.1988 and that of the revisional court, dated 18.9.87 on the petitioner's paying a cost of Rs. 900/, i.e., Rs. 500/ as the cost assessed for this court and Rs. 400/- for the lower court. 16. It would accordingly allow the application, set aside the ex parte order, dated 23.6.1988 and that of the revisional court, dated 18.9.87 on the petitioner's paying a cost of Rs. 900/, i.e., Rs. 500/ as the cost assessed for this court and Rs. 400/- for the lower court. In a case like the one it would be befitting if observation of Hon'ble Venkataramiah J. in Savitri v. Shri Govind Singh Rawat (supra) are kept in mind and are strictly followed in which it was held as under:- "The said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application". I would accordingly direct that the petitioner shall pay interim maintenance till the disposal of the petition under Section 125 Criminal Procedure Code from the date of the order of the treat court dated 23.6.1988 till the date of final disposal of the application under Section 125 Criminal Procedure Code at the rate of Rs. 400/- p m. Rs. 200/- for non-petitioner and Rs. 200/- for her daughter. I had passed earlier an interim order to deposit Rs. 2,500/- in the trial court. If the said amount is deposited, then out of the said amount Rs. 900/- shall be paid as cost to the non petitioner and an interim maintenance at the rate of Rs. 400/- p. m. shall be paid to the non-petitioner applicant out of the money deposited and the petitioner shall go on continuing to pay the maintenance at the aforesaid rate by 15th of each of subsequent month i.e., after receiving Rs. 2500/- as mentioned above. First due will be on 15th of October, 1988. The learned Magistrate shall call the non-petitioner in person and direct her to open a Bank Account if possible and petitioner can be directed to directly deposit the monthly instalments in the Bank in her account. For the deposited amount also the learned Magistrate shall ensure that money reaches the hands of the non-petitioner herself.Petition allowed. *******