Judgment Sinha, J. 1. This is an application against the concurrent orders of the Courts below convicting the petitioners under Sec.218, Bihar Municipal Act. 2. The gravemen of the charge against them was that they had made a privy on the first floor of their premises without permission of the Municipality, and which had been made by encroachment on a portion of the Municipal survey plot No. 440 of Ward No. 3 which belongs to the Municipality. 3. The defence of the petitioners was that this latrine was made about six years ago, when the second storey was built, and that, under Sec.375, Bihar Municipal Act, the prosecution was barred. They further pleaded that there had been no encroachment on the Municipal survey plot No. 440. 4. Though the Courts below have agreed in convicting the petitioner, none of them has found that the alleged encroachment on the Municipal survey plot No. 440 had been proved. There is no finding either that the latrine was made within six months before the institution of the criminal prosecution. But both the Courts below have taken the view that it was a continuing offence, and that, therefore, when the matter was brought to the notice of the Municipal Chairman within six months from the launching of the prosecution, the same was not out of time, as contemplated in Sec.375, Bihar Municipal Act. Now, the only finding on which the conviction is based is that the privy was made without the sanction of Municipality. The making of the privy, therefore, cannot be a continuing offence as the offence must have been completed as soon as the privy had been made. The learned counsel for the Municipality has suggested that the case might go back for a fresh decision on these points. But this is not a civil suit where the parties may be given a fresh opportunity of adducing evidence on question not canvassed in the Courts below. In the present case, the prosecution must stand or fail on the findings arrived at by the Courts below. As already indicated, there is no finding that the privy was made only within six months from the date of the prosecution. In the present case, the prosecution must stand or fail on the findings arrived at by the Courts below. As already indicated, there is no finding that the privy was made only within six months from the date of the prosecution. The learned counsel for the Municipality has not been able to point out any precedent in favour of the view that, in the facts and circumstances of the present case, the offence could be said to be a continuing one. 5. I am not concerned in this case with what are the rights of the Municipality in relation to the privy. The Municipal Act has given them the powers to deal with the matter even apart from the question of criminal prosecution. Whether the Municipality will exercise those powers is not a matter which can be gone into in this case. But it appears to me that the Courts below have misdirected themselves in holding that the offence was a continuing one. 6. The result is that the application is allowed, and the conviction set aside. The fine, if paid, will be refunded to the petitioners.