STATE OF KERALA Vs. VENKITESWARA PRABHU

JUDGEMENT

(1.) This criminal appeal and this criminal revision petition arise out of a prosecution launched against four accused persons, for an offence under S.3 of the Untouchability (Offences) Act, 1955, which may be referred to hereafter as the Act. The substance of the charge against them was, that, on October 2, 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 Pw. 2, against the acquittal of accused 2 to 4.

(2.) The Temple belongs to the Gowda Saraswath Brahmin community & 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 & 5 into the Nalambalam. S.3 of the Act, which defines the offence and prescribes the punishment, omitting the parts which are not material, reads as follows:

(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 & 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 S.3 (b), because of the material words in it, other persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person. These words have been similarly interpreted by the Madhya Pradesh High Court in State v. Puranchand, AIR 1958 MP 352 , where the court observed as follows:-