Delhi District Court
Asha vs . State on 5 September, 2011
Asha Vs. State
IN THE COURT OF SH AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No. 144/09
ID No: 02403R0433932009
Asha
W/o late Shri Vinod
R/o I7, Majnu Ka Teela
Aruna Nagar
Delhi110054
..... Appellant
VERSUS
The State
..... Respondent
______________________________________________________________
Date of Institution : 24.12.2009
Date when the arguments were heard : 05.09.2011
Date of judgment : 05.09.2011
JUDGMENT
This Appeal is against the judgment dated 16.12.2009 passed by Ld. Magistrate, Mobile CourtII whereby the appellant has been directed to be put in Certified Institution for two years under CA No. 144/09 1/5 Asha Vs. State section 5 (5) of Bombay Prevention of Begging Act 1959.
2. The facts of the case, which led to the conviction of the appellant for the offence under section 5 (5) of the Bombay Prevention of Begging Act, are that a kalandra was filed before the Ld. M. M. Mobile CourtII under section 4 of the Bombay Prevention of Begging Act 1959 (herein after called the Act) alleging therein that the appellant has committed an offence as defined in section 2 (I) (i) of the Act. The appellant was served with a notice under section 251 Cr. P.C, which is a cyclostyle notice ,and it was explained to her that on 16.12.2009 at about 10.20 am at Sarai Kale Khan bus stand she was found begging from the passersby by raising her hands in front of them and committed an offence under section 2 (I) (i) of the Bombay Prevention of Begging Act, 1959. Her plea was recorded. She admitted the allegations and thereafter the sentence was awarded by the Ld. Magistrate. The Social Investigation Report submitted under section 5 of the Act stated that the accused (appellant) was apprehended while she was begging at Sarai Kale Khan bus stand, she is having an old mother and three children. Her father and husband had died. Her children are studying . She is not educated. She is having no job. Earlier she was selling socks in buses. Now she is receiving alms from others by attaching flags in their pocket.
CA No. 144/09 2/5
3. At this stage the observation of the Hon'ble High Court in Ram Lakhan Vs. State 2007 I AD (Delhi) 588 comes to mind where the Hon'ble High Court had caste a duty on the Magistrate dealing with the offences under the said Act and that duty is to satisfy oneself that the accused did not have a "defence of necessity". It was observed in the judgment that the "beggars" are driven to beg for alms and food as they are starving or their families are in hunger. They beg to survive to remain alive and thus court must step in and recognize the defence of necessity. The judicial notice must be taken of the fact that as accused are poor they will not have access to quality legal assistance, if at all. In the present case the Social Investigation report itself shows that if the appellant had involved in the act of begging her circumstances might have forced her to do it. She is the only earning female member in the family without any male supporting her. She is raising her three children in her home. These factors perhaps, have not been considered by the Ld. Magistrate while accepting the plea of guilt. The Ld. Magistrate did not gave weightage to these facts while passing the judgment in the matter.
4. Even the Notice which has been served upon the appellant, is not proper as per allegation in the complaint. It is on a CA No. 144/09 3/5 Asha Vs. State cyclostyled proforma which is served to all the accused produced before the Ld. Magistrate to face the trial for the offence committed under the Bombay Prevention of Begging Act without any distinction about the facts, and the manner in which the begging is alleged against them. In the present case notice under section 251 Cr. P.C reads that "Asha was found begging from the passersby by raising her hands in front of them and thereby you committed an offence of begging defined under section 2 (I) (i) of the Bombay Prevention of Begging Act, 1959 and you are required to be dealt in accordance with Section 5 (5) of the Bombay Prevention of Begging Act, 1959 and which offence is within my cognizance". But the kalandra no where says that she was found begging by raising her hands. The kalandra under section 4 of the Act states that she was giving flags to the passersby on the Sarai Kale Khan bus stand, thereby she was begging. The question arise what is "begging"?. It is an act of soliciting or receiving alms in "public place"
under any pretence such as signing, dancing fortune telling, performing or offering any article for sale. However, one important fact which is to be noted in the present case is that the appellant was giving flags to the people. These flags which have been placed along with the kalandra, must have cost something to the appellant. If she was selling something some article after spending something from her own pocket then it CA No. 144/09 4/5 Asha Vs. State cannot be considered as a begging. Though such selling of articles may not be permissible under some other law. In the kalandra it is stated that by giving the flags the appellant was begging. The facts, therefore, disclose nothing else except that the appellant was selling flags to the passersby on the bus stand and that in my considered view will not fall in the definition of "begging" as per section 2 (I) (i) of the Act. The impugned order has not considered these aspects of the matter, therefore, the impugned order is liable to be set aside. The appellant stands acquitted. Surety of the appellant stands discharged. The Appeal stands allowed. Trial Court Record be sent back to the Trial Court along with copy of detailed judgment. Appeal file be consigned to Record Room.
Announced in the open court (AJAY KUMAR KUHAR)
on 5th September 2011 ASJ02/SE/ SAKET COURT
NEW DELHI
CA No. 144/09 5/5