T. C. SHRIVASTAVA, J.

( 1 ) THIS is an appeal under Section 417 Criminal Procedure Code filed by the State government against the order of the Sessions Judge Ujjain acquitting the non-applicant of an offence under Section 3 of the Untouchability (Offences) Act (No. 22 of 1955 ). The accused was tried summarily under Section 260 Criminal procedure Code in Criminal Case No. 114 of 1955 and was sentenced to imprisonment for one month and a fine of Rs. 50/- only. He went up in appeal and the learned Sessions Judge set aside the conviction and acquitted him.

( 2 ) THE non-applicant is admittedly the Pujari of a Jain temple in Ujjain. The prosecution case was that on 6-10-1955 the complainant Mohanlal who is Balai by caste, went to have a Darshan at the temple but the non-applicant locked the door of the temple and did not allow him to enter the temple and have a Darshan on the ground that he was an untouchable,

( 3 ) THE non-applicant denied that he had locked the door of the temple or had prevented Mohanlal from entering the temple or having a Darshan. He further stated that the temple is a Jain temple and as Mohanlal was not a Jain, he had no right to insist upon entering it.

( 4 ) THE trial Court came to the conclusion that the non-applicant had locked the door and had prevented Mohanlal from going inside the temple. It has also been held that the reason for doing so was that Mohanlal was an untouchable. No finding was recorded expressly on the point whether Hindus have a right to enter the temple and have a Darshan but relying on the explanation to Section 3 of the act, the trial Court held that all Jain temples should be deemed to be Hindu temples and all Hindus have a right to enter such temples. The learned Sessions judge interpreted the explanation differently holding that according to the explanation although Jains would be treated as Hindus, Hindus could not be treated as Jains.

( 5 ) THE appellate Court has also observed that the prosecution evidence shows that mohanlal was stopped from going in because he is a 'harijan'. This was not sufficient in his view to prove that he was stopped on the ground of untouchability. It is well known that the word 'harijan' applies to untouchables and the use of that word by the witnesses should have been accepted as sufficient to hold that mohanlal was prevented from going inside the temple as he was an untouchable. On this point the finding of the trial Court should have been accepted.

( 6 ) BEFORE I deal with the merits of the case, it is necessary to analyse the provisions of Section 3 of the Act. The relevant part of the section reads as follows:

"3. 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. . . , explanation: For the purpose of this section and section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the hindu religion in any of its forms or development, including Virashaivas, lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the swaminarayan Sampraday shall be deemed to be Hindus"

( 7 ) THE learned Government Advocate has contended that the non-applicant has committed an offence under Clause (a), of this section. A perusal of the clause shows that the place of worship must be (i) open to other person professing the same religion as the complainant, or (ii) open to other persons belonging to the same religious denomination as the complainant. The explanation lays down that persons professing Jain religion shall be deemed to be Hindus for the purpose of this section. This only means that the provisions of Section 3 will be applicable to jain temples also. The word 'same religion' as occurring in Clause (a) refer to the religion of the complainant. The complainant in this case is 'a Hindu and therefore it was necessary for

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