S. Velu Pillai, J.
1. This criminal appeal and this criminal revision petition arise out of a prosecution launched against four accused persons, for an offence under Section 3 of the Untouchability (Offences) Act, 1955, which may be referred to hereafter as the Act. The substance of the charge against them wag that on 2-10-1958, as abetted by the first accused, accused 2 to 4 prevented Pw. 2, a Theeya, and Pw. 5, a Harijan, from entering and worshipping in the Sree Varaha Devaswom Temple' or shortly, the temple at Cherai. The trial Magistrate acquitted the first accused, but convicted accused 2 to 4, and sentenced each of them to pay a fine of Rs. 100, and in default of payment, to undergo, simple imprisonment for 1 1/2 months. Accused 2 to 4 preferred an appeal to the District Magistrate, Ernakulam, who allowed the appeal, and set aside the convictions and sentences. The criminal appeal has been preferred by the State, and the criminal revision petition has been preferred by Pv. 2, against the acquittal of accused 2 to 4.
2. The Temple belongs to the Gowda Sara-swath Brahmin community and is a denominational one, by virtue of the notification of the then Government of Cochin, dated March 25, 1948. The 'Shreekovil' of the temple is situated within the temple precincts known as 'Nalambalam', the access to the 'Nalambalam' being through a door on the western side. It was at this door that accused 2 to 4 offered resistance to the entry of Pws. 2 and 5 into the 'Nalambalam'. Section 3 of the Act, which defines the offence and prescribes the punishment, omitting the parts which are not material, reads as follows :
Section 3. 'Whoever on the ground of 'untouchability' prevents any person --
(b) from worshipping or offering prayers or performing any religious service in any place of public worship............... in the same manner and to the same extent as is permissible to other persons professing the same religion, or belonging to the same religious denomination or any section thereof, as such person;
shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both.'
To constitute an offence under this Section the following conditions have to be fulfilled :--
(a) The prevention must be from worshipping or offering prayers, or performing any religious service in a place of public worship.
(b) The prevention must be from the doing of any act as aforesaid to the same extent and in the same manner as is permissible to other persons of the same religion, or religious denomination or section thereof as the person prevented, and
(c) The prevention must be on the ground of 'untouchability'.
In this case only conditions (a) and (b) are pertinent, as condition (c) has admittedly been satisfied. The definition of a 'place of public worship' in Section 2 (d) of the Act is as follows :--
'Place of public worship means a place, by whatever name known, which is used as a place ot public religious worship or which is dedicated generally to, or is used generally by persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service or for offering prayers therein; and includes all lands and subsidiary shrines appurtenant or attached to any such place.'
3. The defence set up in this case was that, ever since the Temple came into existence, only the members of the Gowda Saraswath Brahmin community who wear the sacred thread, have entered the 'Nalambalam' and have a right of admittance to it, the other members of the community, including females, having no such right and having never entered the 'Nalambalam'. If this is established, condition (b) mentioned above will not be fulfilled, because Pws. 2 and 3 are members of a different community or denomination. There is no doubt in my mind as to condition (b) being a necessary one under Section 3 (b), because of the material words in it, 'other persons professing the same religion or belonging to the same religious denomination of any section thereof, as such person.' These words have been similarly interpreted by the Madhya Pradesh High Court in State v. Puranchand, AIR 1958 Madh Pra 352, where the court observed as follows :--
'Thus the person prevented must either be professing the same religion as other persons to whom the place is open, or in the case of denominational or sectional places of public worship, he must belong to that particular denomination or section'.
As for condition (a), in order to constitute a 'place of public worship', within the meaning of Section 2 (d) of the Act, it is a place which must have been used as such by, or have been dedicated generally to, persons professing any religion or belonging to any religious denomination or section thereof, for the performance of religious service, or for offering prayers therein. Condition (a) depends on the prior user of the 'Nalambalam', for on the materials in this case no question of dedication arises. The learned District Magistrate has not recorded any finding on the defence set up as above; but the evidence of the' prosecution as well as of the defence is all one way, and I therefore think, that it is not necessary to send back the case to him for a finding.
The defence witnesses examined on the point were unanimous, that only the members of the Gowda Saraswath Brahmin community, who wear the sacred thread, have ever entered the 'Nalambalam'. Pw. 1, a member of the same community also deposed likewise with reference to the period of his management of the temple; but in cross examination he stated, that now-a-days the members of other communities also gain entrance to the 'Nalambalam', but that was on the sly. Pw. 4 stated merely, that all Hindus are entitled to enter the 'Nalambalam'; this is no evidence of past user. No other item of evidence was brought to my attention by the Public Prosecutor or by the learned counsel for the revision petitioner. The evidence thus establishes the defence set up.
This is sufficient for holding, that condition (b) [referred to has not been fulfilled, and that an offence under Section 3 (b) of the Act is not made out. In this view, it is unnecessary to consider, whether the members of the Gowda Sarsawath Brahmin community, who wear the sacred thread, constitute a denomination by themselves or a section thereof, because Pws. 2 and 5 do not pertain to that group.
4. The learned Public Prosecutor relied on Article 25, but the learned counsel for the defence relied on Article 26(b) of the Constitution and urged that the right under Article 25 is capable of being regulated and controlled. It is however un-necessary to consider this, as Article 25, on which reliance was placed, creates no offence.
5. For the foregoing reasons, the criminal appeal and the criminal revision petition are both dismissed,