Judgment.- This is an appeal by the complainant in C.C. No. 85 of 1958 of the Stationary Second Class Magistrate’s Court, Alwaye, and it is directed against the judgment acquitting the accused of an offence under section 3 of the Untouchability (Offences) Act (XXII of 1955). The complainant’s case may be briefly stated: The first accused is the SreeKariakar (chief executive officer), and the second accused, the keezhsanthi, of Thrikkakkara temple. The complainant’s father was an employee of the temple and, according to the complainant, his family had hereditary right to do certain services in the temple. On 2nd March, 1958, the complainant had taken certain articles, such as rice, molasses, cocoanuts, etc., to offer a payasanivedyam to the deity in connection with his father’s birthday. He entrusted these to the melsanthi and obtained a receipt. The complainant then scraped the cocoanuts for preparing the nivedyam and when he was about to take it inside the thidappally (kitchen), the first accused who was standing outside asked him not to enter and said that if he entered the nivedyam would be polluted. Notwithstanding this he entered the thidappally when the second accused who was preparing the nivedyam said that he had been asked not to enter and that by his entry he had polluted the nivedyam. The accused thus attributed untouchability to him. When he placed the cocoanut inside the thidappally, accused 1 and 2 left the place. On the report of the first accused the Superintendent of the Devaswom (P.W. 1) arrived there in the evening and he auctioned the articles brought by the complainant. According to the complainant, he was entitled to get the nivedyam after it was prepared and offered to the deity and he sustained a loss of Rs. 20 by the refusal of the accused to prepare the nivedyam and offer it to the idol. He had as much right as the second accused to enter the thidappally and the accused had committed an offence under section 4 of the Act by saying that he had polluted the nivedyam, thereby attributing untouchability to him. It was also stated in the complaint that the accused did these acts on account of the enmity of the first accused towards the complainant and his family. It was also stated in the complaint that the accused did these acts on account of the enmity of the first accused towards the complainant and his family. The complainant and the Superintendent of the Devaswom were examined for the prosecution and the accused examined the thanthri of the temple as D.W. 1. The learned Magistrate held that the thidappally of the temple was not a place of public worship, that the thidappally was not open to all the Hindus and that the accused was not prevented from entering the thidappally on account of untouchability. The accused were accordingly acquitted, and the complainant has brought this appeal by Special Leave. Though it was stated in the complaint that the offence was one under section 4 of the Act it was conceded even in the lower Court that section 4 had no application to the case and that the offence was one under section 3, which reads as follows: “3. Punishment for enforcing religious disabilities: Whoever on the ground of”untouchability“prevents any person- (a) from entering any place of public worship which is open to other persons professing the same religion or belonging to the same religious denomination or any section thereof, as such person; or (b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or watercourse, 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. Explanation.-For the purpose of this section and section 4 persons professing the Buddishist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or development including Virashaivas, Linghayats, Adivasis, followers of Bramhmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus”. The prosecution in order to succeed, has to prove that the thidappally is a place of public worship open to all persons professing the Hindu religion, or persons belonging to the same denomination as the complainant and that the complainant was prevented by the accused from entering the thidappally on the ground of untouchability. The prosecution in order to succeed, has to prove that the thidappally is a place of public worship open to all persons professing the Hindu religion, or persons belonging to the same denomination as the complainant and that the complainant was prevented by the accused from entering the thidappally on the ground of untouchability. The thidappally is the kitchen of the temple where nivedyam is prepared. Though the thidappally is the kitchen of the temple where admittedly no worship takes place, it was contended on behalf of the appellant that the definition of a place of public worship in the Act was wide enough to include the same. The Act defines the “place of public worship” as follows: “‘Place of public worship’ means a place, by whatever name known, which is used as a place of 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”. This definition is of no help to the appellant who admitted in cross-examination that nobody worships in the thidappally. An attempt was made in his re-examination to clarify this statement and he said that the reason why the worshippers do not enter the thidappally is that they have no need or business to do so. He further admitted that there are certain parts of the temple where only the santhi can enter. P.W. 1 deposed that the thidappally is not a place of worship open to all Hindus. D.W. 1, the thanthri of the Devaswom, stated that not even Brahmins are allowed inside the thidappally when nivedyam is being prepared and only the santhi and thanthri can enter there at such times. As the kitchen is not a place dedicated or used for worship, the first element of the offence is absent in this case. In this connection I may refer to the observations of the Supreme Court in Commissioner, Hindu Religious Endowments Board v. L.T. Swamiyar1: “It is well-known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. In this connection I may refer to the observations of the Supreme Court in Commissioner, Hindu Religious Endowments Board v. L.T. Swamiyar1: “It is well-known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed.” These observations, though made in another context, are useful in deciding the question whether every part of a temple should be considered open to the people professing the Hindu religion who may be using the temple for worship. All that section 3 means is that no person should be refused admittance to a place of public worship where other persons professing the same religion or belonging to the same denomination are admitted, on the ground that such person is an untouchable. The section cannot be deemed to have conferred an unfettered right to every Hindu to perform rituals which according to the principles and tenets of the religion must be conducted only by the priests or to enter such places where such ceremonies are being performed. The evidence of D.W. 1 who is the thanthri of the Devaswom makes it clear that Brahmins cannot enter the thidappally when nivedyam is being prepared. In view of the fact that the thidappally is not a place where people offer worship, the alleged refusal of the accused to allow the complainant to enter the place cannot constitute an offence under section 3. The above finding is sufficient to dispose of the appeal. However, reference may be made to an argument advanced on behalf of the appellant that admission was refused in the case on the ground that nivedyam would be polluted by his entry into the thidappally at that time and that this was sufficient to show that it was on the ground of untouchability that he was refused admission. Even assuming it to be so, that cannot alter the position so long as the thidappally is not a place of worship. Even assuming it to be so, that cannot alter the position so long as the thidappally is not a place of worship. It is also incorrect to say that admission was refused on the ground of untouchability. As explained by D.W. 1, the preparation of nivedyam has to be done by the santhi and no one other than the santhi or the thanthri can enter the thidappally at the time. It is in evidence that the complainant wanted to go inside the thidappally, squeeze the cocoanut and obtain milk for the preparation of the nivedyam. The purport of what accused 1 and 2 told him is that the nivedyam would become unfit for offering to the idol if other persons stood by while it was being prepared. This is not therefore a case in which admission inside the room was refused on the ground of untouchability. A sacred ritual was going on inside the thidappally at the time and according to the tenets of the religion admission had to be refused even to members of the highest caste. It may also be observed that even if the complainant was entitled to enter the thidappally, he was not prevented from entering. His case is that he entered, which means that there was no prevention as contemplated by the section. As none of the ingredients constituting an offence under section 3 of the Act has been proved, the prosecution must fail. The acquittal of the accused is therefore confirmed, and the appeal is dismissed. M.C.M. ----- Appeal dismissed.