Delhi District Court
Master Prem (Aged 12 Years) vs State (Nct Of Delhi) on 11 January, 2010
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 10.12.2009
Date of judgment reserved on : 11.01.2010
Date of decision : 11.01.2010
CriminalAppeal No. 55/2009
IN THE MATTER OF :
Master Prem (aged 12 years)
s/o Sh. Mukesh
(lodged in Certified Institution
at home for abled and disabled beggers
Lampur, Delhi
Through Sh.Superintendent
Department of Social Welfare
(Govt. of NCT of Delhi.)
..... Appellant
Versus
State (NCT of Delhi)
.....Respondent
JUDGMENT:-
Present appeal U/s 34 of the Bombay Prevention of Begging Act as extended to Union Territory of Delhi has been filed the Superintendent Home for Abled and Disabled Beggers Lampur, Delhi whereby order dated 4/8/2009 passed by Ld MM Poor House Court, Kingway Camp, Delhi has been challenged. By that order passed U/s 5 (5) of the Act Ld MM has ordered to keep the accused in a certified institution for one year. The legality of the order has been questioned 2 on the plea and ground that fact that person sent to certified institution was around 12 years of age and thus a juvenile has not been taken in to consideration and the certified institution in question where this child has been sent is a home to keep adult abled and disabled beggers. Today Welfare Officer of the institution Mr.Pankaj Kumar Verma appeared with counsel Sh. Subhash Chander in this appeal and Ld. Addl. PP for State representing the state assisted this court to take a scrutiny of the order impugned. The Welfare Officer Mr.Pankaj Kumar Verma has referred to the MLC of the boy concerned namely Prem recorded at RML hospital on 11/8/2009 whereby he has been described 12 years of age. Ld. Addl. PP for State admitted that order passed by Ld MM convicting the person namely Prem S/o Mukesh though he was around 12 years of age was unwarranted as the offences under the Beggers Act are defined and provided only U/s 6 & 11 whereas to find and hold a person to be a begger and then to order is detention in a certified institution is only an inquiry as provided in Section 5 of the Act and not by holding a trial and then convicting the person. Ld. Addl. PP for State however pointed out that Clause 9 of Section 5 of the Act did not provide any distinction between a juvenile and an adult except where a child was found to be a begger but below 5 years of age who was required 3 under Sub Section 9 to be deal with under Children Act by the court constituted under the Children Act. Ld. Addl. PP for State submitted that in the present situation the order impugned could be deemed to be an order directing detention of the juvenile in a certified institution and since the child held to be a begger was 12 years of age, by virtue of Section 5 Clause 9 of the Act he could be detained in a certified institution and substantially thereby there was no illegality in the order impugned and the child Prem S/o Mukesh could be kept in the institution where other beggers were being detained under the orders of the court. I have considered these submissions.
The appellant has filed certified copy of the order impugned dated 4/8/2009. The order reveals that the person concerned i.e Prem S/o Mukesh was produced before the court and Ld MM appears to have taken a cognizance of a complaint for an offence and proceeded to try the person concerned by giving a notice of offence U/s 251 Cr.P.C. Considering the plea of guilt given by the person concerned voluntarily Ld MM proceeded to accept that plea and convicted the child i.e Prem S/o Mukesh U/s 5 (5) Bombay Prevention of Begging Act. As I have gone through the provisions of the Act, the proceedure and proceedings conducted by Ld MM appears to be an exercise of jurisdiction as not warranted by the 4 provisions concerned. Section 5 of the Act provides that where a person is brought before the court as a begger but is not proved to have been previously been detained in a certified institution, the court shall make a summary inquiry as regards the allegation that he was found begging. In the present case it was none of the case of the police that the person produced before the court i.e Prem S/o Mukesh was previously detained in a certified institution. Accordingly the court was required only to hold a summary inquiry only to find out if the boy concerned was found begging. Clause 3 provides that if in that inquiry court is not satisfied that the person was found begging such person shall be released forthwith. Clause 4 says that if the court was satisfied that such person was found begging it shall record the finding to that effect and clause 5 then provides that the court shall order person found to be a begger to be detained in a certified institution.
The proviso to Clause 5 further provides that if the court was satisfied from the circumstances of the case that the person found to be a begger was not likely to beg again, court may after due admonition release the begger on a bond for beggers to abstain from begging and be of good behaviour, with or without surety.
Now if we read the provisions of Juvenile Justice (Care and 5 Protection of Children) Act 2006 its Section 2 dealing with the definitions clause D provides the definition of ''child in need of care and protection'' such a child as per sub clause I says that a child who is found without any home or settled place or board and without any ostensible means of substitance. Further Sub Clause I a provides as who is found begging or who is either is street child or a working child. Section 29 of the Act provides for a child welfare committee to deal with such child who is a need of care and protection under the Act. Certainly these provisions are to be taken in to consideration and kept in mind that even a begger who is a child is produced before the court and such a child is required to be deal with before the child welfare committee. In the present case even if the person produced before the court namely Prem S/o Mukesh was found to be a begger but then if he was a child and covered under the definition of a child in need of care and protection then certainly he was required to be protected by the Child Welfare Committee. Sending such a child to a certified institution which was meant for adult abled and disabled beggers was a violation of the rights of the child sought to be protected under the Juvenile Justice (Care and Protection) Act. The proceedings conducted by Ld MM holding as if person child Prem S/o Mukesh when being produced before the court was a culprit and 6 holding this boy liable to be convicted U/s 5 (5) of the Act is illegal. The order impugned is accordingly liable to be set aside and is set aside . Let the person/child Prem be produced before Ld MM who will deal with child concerned a fresh in accordance with provisions of law. Let the child be produced before Ld MM on 12/1/2010 at 2 pm. Announced in the Open (J. R. ARYAN) court on 11/01/2010. ADDITIONAL SESSIONS JUDGE NEW DELHI.
7CA No. 55/09 Master Prem Vs. State of NCT of Delhi.
11/1/2010 Present : Counsel Sh. Subhash Chandra with officials of certified institution, Lampur, Delhi.
Ld. Addl. PP for State.
Vide my separate judgment of even date, the order impugned is accordingly liable to be set aside and is set aside . Let the person/child Prem be produced before Ld MM who will deal with child concerned a fresh in accordance with provisions of law. Let the child be produced before Ld MM on 12/1/2010 at 2 pm. Trial court record along with the copy of this order be sent back and be placed before Ld MM on 12/1/2010 at 2 pm and appeal file be consigned to record room.
(J. R. ARYAN)
ADDITIONAL SESSIONS JUDGE
NEW DELHI.
11/01/2010.