Decided on October 18,1967

SREEDHARAN Respondents


- (1.) The complainant in C. C. 591/65 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 S.84(a) and (c) read with S.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 footpath 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 30-6-64. On 10-7-64 a resolution was passed by the Panchayat by which the RDO. 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 asking him to demolish the fence and also to remove the plants planted by him. In answer to the notice a reply was sent by the accused denying the existence of the footpath. 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 S.84 read with S.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.
(2.) On the first point, viz., about the existence of the pathway, the prosecution would rely on the evidence of Pws. 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. Pw. 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, Pw. 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 allegation 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 to 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 Dw. 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, Dw. 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 Pws. 1 to 4, and I see no reason to differ from the learned Magistrate.
(3.) On the second point, viz., limitation, I think the view taken by the learned Magistrate cannot be supported. The learned Magistrate has relied on S.119 of the Kerala Panchayats Act for holding that the prosecution is out of time. S.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.";

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