The Court delivered the following Judgment.- The complainant in C.C.No. 591 of 1965 on the file of the Sub-Magistrate, Tirur has come up in appeal against the order of acquittal passed by the learned Magistrate. The complainant is the executive officer of the Feroke Panchayat. The complaint against the accused was one under section 84(a) and (c) read with section 132 (1) of the Kerala Panchayats Act, in that the accused had obstructed a public pathway, effaced the pathway and planted thereon some plants. A mass petition was received in the Panchayat office signed by 40 persons of the locality complaining of the obstruction. It was stated by them that the pathway was in existence for over 60 years and it was being used without interruption by the public of the locality. On the foot-path there was one "Anavathil" which the accused had demolished and in its place a ‘V’ shaped fence was erected. The mass petition was received in the Panchayat office on 30th June, 1964. On 10th July, 1964 a resolution was passed by the Panchayat by which the Revenue Divisional Officer was requested to take action in the matter. Thereafter a memorandum was sent from the Panchayat office to the accused informing him that the matter would be enquired into. That was followed by a prosecution notice making him to demolish the fence and also remove the plants planted by him. In answer to the notice a reply was sent by the accused denying the existence of the foot-path. It was also stated by him that it was the political rivalry that subsisted between the panchayat president and the accused that had led to all the trouble and the mass petition itself was motivated by party dissensions. Thereafter the prosecution was initiated under section 84 read with section 132 of the Kerala Panchayats Act. The learned Magistrate has come to the conclusion that the existence of the pathway has not been proved and also that the prosecution is barred by limitation. On the first point, viz., about the existence of the pathway, the prosecution would rely on the evidence of P.Ws. 1 to 4 who have deposed that the pathway was there, for about 60 years now. On the first point, viz., about the existence of the pathway, the prosecution would rely on the evidence of P.Ws. 1 to 4 who have deposed that the pathway was there, for about 60 years now. The learned Magistrate has discussed the evidence of these witnesses in detail, and he was not inclined to accept their testimony to enter a finding in favour of the existence of the pathway. P.W. 1 is the executive officer himself. According to him he was satisfied of the existence of the pathway on an enquiry made by him in the locality;but his own statements are self-contradictory and inconsistent. The contradictions have been dealt with by the learned Magistrate in his judgment. The other witnesses are all signatories to the mass petition and as Such are interested in seeing that the pathway is restored. Of these, P.W. 4, did not support the prosecution and had turned hostile. Such oral evidence, inconclusive on the very face of it, cannot be made the basis for a finding that the pathway existed there for such a long time. The pathway, as a matter of fact, runs through the accused’s property and unless dedication is proved, no argument can be built upon the contention that it is an ancient pathway and that it was being used uninterruptedly by the public. It has come in the evidence that one Kunhi Poker is residing on the north of the alleged pathway. He was not cited to prove the existence of the pathway. Against this evidence, we have the evidence of D.W. 2; the Revenue Inspector who has stated that an enquiry was made by him at the spot and he could not get any evidence in support of the pathway. He did not notice any traces of the pathway anywhere there. Being a responsible Government officer, D.W. 2’s evidence cannot be brushed aside. The impression was gathered by him by personal enquiries made at the spot. The learned Magistrate has accepted his evidence in preference to that of P.Ws. 1 to 4, and I see no reason to differ from the learned Magistrate. On the second point, viz., limitation I think the view taken by the learned Magistrate cannot be supported. The learned Magistrate has relied on section 119 of the Kerala Panchayats Act for holding that the prosecution is out of time. 1 to 4, and I see no reason to differ from the learned Magistrate. On the second point, viz., limitation I think the view taken by the learned Magistrate cannot be supported. The learned Magistrate has relied on section 119 of the Kerala Panchayats Act for holding that the prosecution is out of time. Section 119 reads: "Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any rule or bye-law made thereunder unless complaint is made by the police, the executive authority or a person expressly authorised in this behalf by the panchayat or executive authority within three months of the commission of the offence; but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion: Provided that failure to take out a licence or obtain permission under this Act, shall for the purpose of this section, be deemed to be a continuing offence until the expiration of the period, if any, for which the licence or permission is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence." The prosecution has, therefore, to be initiated within three months of the commission of the offence; but this limitation cannot apply to a continuing offence. Here the nuisance complained of continues to be there and so long as it continues the act would give rise to a fresh offence ‘de die in diem‘. The expression "continuing offence " has been defined in the following terms by a Division Bench of the Bombay High Court consisting of Gajendragadkar and Shah, JJ., in State v. Bhiwandiwalla1. "The expression ‘continuing offence’ though not a very happy expression, has acquired a well-recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. Normally and in the ordinary course an offence is committed only once. But there may be offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. In every case of a continuing offence it may be possible to describe the default as amounting to an omission or to a positive act on he part of the defaulter." In that case the accused used his premises as a factory without obtaining a licence and it was held that he was committing a fresh offence and in respect of each fresh offence a separate prosecution was competent. The same view was taken by a Full Bench of the Patna High Court in State v. Kunja Behari2. It was held in that case that: "The expression ‘continuing offence’ means that, if an act or omission on the part of an accused constitutes an offence, and if that act or omission continues from day to day, then a fresh offence is committed on every day on which the act or omission continues." So also in the present case the contravention continues so long as;he ‘V shaped fence is obstructing the pathway, granting that there is a pathway. Retaining stolen property has been held to be a continuing offence (vide Yamanappa v. Emperor3). The prosecution is, therefore, not hit by the bar of section 19 of the Kerala Panchayats Act, The proviso to the section, no doubt, speaks of some continuing offences which are in the nature of omissions; but the instances given are neither exhaustive nor complete. We are confronted in this case with a continuing contravention. The prosecution is, therefore, in order. There is also the further contention by the accused that even conceding the existence of the pathway, the "V" shaped fence is no obstruction. People can walk along inspite of the fence and this fact is admitted by the prosecution witnesses themselves. It might be that because of the fence, animals cannot be taken that way; but that cannot be considered as an obstruction of the pathway. In any view, therefore, the prosecution is ill-conceived and it has rightly been thrown out. The order of acquittal is confirmed and the appeal is dismissed. M.C.M. ----- Appeal dismissed.