MANSUKHLAL RAICHAND SHAH Vs. RAMCHANDRA PRABHU DESSAI

JUDGEMENT

(1.) IN this revision application the petitioners challenge the Order dated 7th December, 1988, whereby the Executive Magistrate, Canacona, dismissed their application dated 16th November, 1988 and ordered that inquiry shall proceed under Section 138 Criminal Procedure Code.

(2.) THE case of the petitioners is that the learned Magistrate could not have proceeded under section 138 Cr.P.C. without having held an inquiry as provided in section 137(1). This inquiry was not held and therefore, the impugned order is vitiated. Mr. Usgaokar, the learned Senior Advocate appearing for the petitioners, has further submitted that in an inquiry under section 138 the petitioners will be precluded from leading any kind of evidence as to establish that the alleged public way was not existing in view of the provision of section 137(3), Cr.P.C.

(3.) MR . Bhobe, the learned Public Prosecutor concurs with the view taken by Mr. Dias and in addition, submits that the preliminary inquiry as provided in Sub -section (1) of section 137 had been held by the concerned Magistrate and in the circumstances there is no reason whatsoever for this Court to interfere.