This is an application under section 482, Cr. P.C. for quashing the orders dated 20.2.87 and 8.5.87 passed by the Judicial Magistrate of the First Class Nalbari in Misc. Case No. 32 of 1986 and order dated 5.8.87 passed by the Sessions Judge Nalbari in CM No, 16 (N-2 ) 1987.

2. Facts,-On 20.2.87, the learned Magistrate passed an exparte order directing the petitioner to pay a monthly allowance for the maintenance of the opposite party and her child. The learned Magistrate fixed Rs. 200/- for the mother and Rs. 100/- for the child. The petitioner filed an application for setting aside the exparte order. The learned Magistrate rejected the petition. Being aggrieved by the order of the learned Magistrate, the petitioner filed Criminal Motion No. 16 (N-2) of 1987 in the Court of the Sessions Judge Nalbari. The Sessions Judge dismissed the revision petition on 5.8.87. Hence this petition.

3. The learned counsel for the opposite party Mr. J. Deb has argued that the petition is not maintainable in view of the provisions of section 399(3), Cr. P.C. He has referred to me a decision of the Supreme Court in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi, AIR 1983 SC 67. In that case the Supreme Court has held the scope, ambit and range of section 482 is quite different from the powers conferred by the present Code under the provisions of section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the inherent powers under section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, power being an extra-ordinary one, it has to be exercised sparingly.

4. In my judgment, the decision of the Supreme Court does not show that the High Court has no jurisdiction at all under section 481 in such a case to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of the Court or otherwise to secure ends of justice. Therefore, the High Court can exercise its jurisdiction under section 482, Cr.P.C. in suitable or exceptional cases.

5. The question then is, - Whether on the facts and circumstances of the case jurisdiction of the High Court under section 482 shall be invoked ?

6. Mr. T.S. Deka, the learned counsel for the petitioner, has submitted that under proviso to section 126, Cr.P.C. the Magistrate had no jurisdiction to pass the exparte order as the records does not disclose that he was satisfied that the petitioner was wilfully neglecting to attend the Court.

7. Under sub-section (2) of section 126, Cr.P.C. all the evidence shall be taken in presence of the person against whom an order for payment of maintenance is proposed to be made, or when his personal attendance is dispensed with, in the presence of his pleader. However, under proviso to sub-section (2) of section 126, if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the ease exparte.

The words "wilfully neglecting" employed in section 126, are of great significance. It is not enough if the person against whom the exparte order is to be made happens to be absent on a particular day when the case is called on for hearing as that will be only his physical absence. But, the question whether the person is wilfully neglecting to attend the Court is an inference to be drawn from the facts and circumstances of the case. The satisfaction of the Magistrate may be subjective satisfaction. Therefore, the Magistrate shall have jurisdiction to proceed exparte only when he is satisfied that the person is wilfully neglecting to attend the Court. This view of mine finds support from the decisions in State vs. Bhimrao, AIR 1963 Mysore 239 and Kalika vs. Smt. Jagdei, 1975 Cri

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