Delhi District Court
Dahu Mali vs State on 3 February, 2011
: 1 :
IN THE COURT OF SHRI C.K. CHATURVEDI, DISTRICT JUDGEII
CUM ADDL. SESSIONS JUDGE (NORTH), DELHI
Criminal Appeal No. 133/2010
Date of institution: 23.12.2010
Arguments heard on: 03.02.2011
Judgment pronounced on: 03.02.2011
Dahu Mali
S/o Shri Brihaspati Mali
R/o Village Dhansuha,
Distt. Gaya, Bihar, M.P. ........Appellant
Versus
State ........Respondent
J U D G M E N T
This is an appeal under Section 34 of The Bombay Prevention of Begging Act, 1959 read with Section 374 Cr.P.C against Judgment and order on sentence dated 30.11.2010 passed by learned Special Metropolitan Magistrate, New Delhi.
2. The brief facts giving rise to the present appeal are that a complaint under Section 4 (1) of The Bombay Prevention of Begging Act, 1959 was filed against the appellant. The case of prosecution is that on 30.11.2010 at about 01.10 P.M., at footpath Kasturba Gandhi Marg, New Delhi, the appellant was found begging from the passersby by raising hands and thereby committed an offence of Criminal Appeal No. 133/2010 Page 1 of 9 : 2 : begging defined under Section 2(1) (i) of the Act. Notice under Section 251 Cr.P.C was served on the appellant on 30.11.2010, to which the appellant voluntarily pleaded guilty.
3. After considering the plea of guilt of the appellant, learned trial Court convicted the appellant under section 5 (5) of The Bombay Prevention of Begging Act, 1959. The appellant was ordered to be kept in certified institution for one year, vide impugned order dated 30.11.2010.
4. Feeling aggrieved by the said Judgment and order on sentence dated 30.11.2010, the appellant has preferred the present appeal.
5. I have heard Ms. Preeti Gupta Advocate, learned counsel for appellant and Ms. Neeta Gupta, learned Addl. PP for the State. I have also carefully gone through material on record.
6. Our own Hon'ble High Court in case titled as Ram Lakhan vs. State reported as 137(2007) DLT 173 considered the provisions of Section 5 of The Bombay Prevention of Begging Act, 1959. In the said case it was observed that there are various reasons for human being to solicit alms. Firstly, it may be that he is down right lazy and does not want to work. Secondly, he may be an alcoholic or a drug addict in the hunt for financing his next drink or doze. Thirdly, he may be at the exploitive mercy of a ring leader of a beggary "gang". And fourthly, there is also the probability that he may be starving, homeless and helpless. It was also observed that the professional Criminal Appeal No. 133/2010 Page 2 of 9 : 3 : beggars who find it easier to beg than to work may be appropriately dealt with by passing order under section 5 (5) of the Act for their detention in certified institutions. In the second category real problem is not of begging but a problem of addiction. The solution lies in attempting to deaddict him and help in riding himself to the malady. The third category of beggars who are exploited and forced into begging and other ring leaders, a different approach is required. The persons found "begging" need not and ought not to be detained in a certified institution. Because, his act of solicitation was not voluntary but, under due risk, result of exploitation at the hands of others. The ring leaders need to be rounded up and penalized under section 115 of the Act and these "beggars" need to be released from their exploiting clutches. The fourth category of "beggars" are persons who 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. For any civilized society to have persons belonging to this category is a disgrace and a failure of the State. To subject them to further ignominy and deprivation by ordering their detention in a certified institution is nothing short of dehumanising them. It is here that Court must step in and recognize the difference of necessity.
7. I have perused the order of learned Special MM. A reading of the order and procedure followed shows that learned Special MM has not properly understood the provisions and spirit of the Act, in dealing with the case. Ld. Special MM has convicted and sentenced Criminal Appeal No. 133/2010 Page 3 of 9 : 4 : the appellant under Section 5 of the Act. Section 5 of the Act provides only for a summary enquiry to determine the satisfaction of the Court that such person was found begging, and then to record a finding under Section 5(4) of the Act. The Court has then to consider the proviso to Section 5(5) of the Act, for release of the beggar after due admonition of Section 5 (6); 5(7) and 5(9) of the Act.
8. There is no provision in the Act to record conviction of the beggar under Section 5 of the Act. Nor is such a person to be sentenced to any sentence.
9. It appears that Ld. Special MM has not understood the scheme of the Act. Under Section 5 of the Act, after a summary enquiry, the person is either released or admonished or detained in a certified institution. The Hon'ble High Court in case titled as Ram Lakhan Vs. State reported as 137 (2007) DLT 173 has given guidelines to be followed by the Magistrates dealing with cases under Section 5 of the Act, discussed hereinafter.
10. The question of conviction comes only under Section 6 of the Act only in respect of a person, who has previously been detained in a certified institution under the Act, is again found begging. The question of sentence comes after 1st conviction under Section 6(2) of the Act and second or subsequent conviction under Section 6(3) of the Act.
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11. It is seen from the record of the case that learned Special MM observed in para 3 as under: " On being enquired the accused voluntarily admitted before the Court that he was arrested while found begging from the passersby at Footpath K.G. Marg, New Delhi at 01.10 p.m. and a sum of Rs. 423/ in notes and coins of different denomination received as alms was recovered on his personal search as per his personal search memo. He further added that he has a son who lives at Narela, Delhi. His brother of 80 years old is living at his native place. His son is Rickshaw Puller. He is unedcuated and presently living at footpath in Kamla Market, Ajmeri Gate, New Delhi for the last two months. Social Investigation Report (SIR) of the PO was called for an on the basis of a summary enquiry conducted in terms of section 5 (1) of the BPB Act 1959, the accused person was found begging and committed an offence of begging u/s 2(1)
(i) of PBP Act, 1959 and guilty of the offence charged and he is a professional beggar. I am satisfied that accused voluntarily pleaded guilty and thereafter accused is guilty for the offence charged and it is accordingly convicted u/s 5(5) of the Bombay Prevention of Begging Act, 1959 ".
12. It is to be noted that after observing what is stated in para 3 reproduced above, the learned Special MM has jumped to trial procedure for conviction under Section 6 of the Act, and convicted under Section 5 of the Act. The observation made in para 3 clearly made over a case for release.
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13. It is patent that the Courts of Special Metropolitan Magistrates, dealing with the case under Bombay Prevention of Begging Act, 1959 are not aware of authoritative beautiful Judgment of Hon'ble Mr. Justice Badar Durrez Ahmed of Hon'ble Delhi High Court in case titled as Ram Lakhan Vs. State reported as 137 (2007) DLT 173. In this Judgment, the Hon'ble High Court has laid down guidelines in para 12 of the Judgment, which are to be followed by all Magistrates dealing with the cases. Para 13 further instructs how evidence of official witness is to be treated. The guidelines in para 12 are reproduced below: "12. In the backdrop of the foregoing discussion, whenever a person alleged to have been found begging is produced before a Court having jurisdiction under the said Act, such Court must proceed in the following manner:
(1) First of all, it must satisfy itself that such person was, in fact, found begging. For this purpose, the Court must carefully scrutinize the evidence produced before it. It does not matter that the inquiry is a summary one. The Court must be "satisfied" that the person was found begging. The evidence must be clear and unimpeachable. If there is any doubt or the prosecution requires the Court to draw upon many interferences then the Court must not record that the person before it was found begging. Consequently, the Court, in such a situation, cannot also record a finding that the person is a beggar.
(2) Where the Court is satisfied that the person before it was found begging and therefore is compelled to Criminal Appeal No. 133/2010 Page 6 of 9 : 7 : record a finding that he is a beggar, the Court "may"
(and not "shall") order his detention in a certified institution.
(a) However, where the person has a defence of duress or necessity, the person ought not to be detained. As pointed out above, whether the specific defence of duress or necessity is taken by the beggar or not, it is an obligation on the Court to satisfy itself that the person did not have such a defence.
(b) And, where it appears to the Court that the person was found begging because of his addiction to drinks or drugs, not much purpose would be served by sending him to a certified Institution which does not provide for detoxification or deaddiction . The burgeoning problem of drug addition and alcohol dependence coupled with the problem of begging is a complex one. Here begging is only a symptom of the malady of addiction. Taking action on begging while ignoring the problem of addiction is much the same as prescribing a painkiller for the pain and ignoring the treatment of the disease which is the underlying cause for the pain. So, in such cases the Court, after due admonition ought to release the beggar on a condition that he shall go in for detoxification or deaddiction at an accredited institution. A bond to this effect may be taken by the Court in the manner provided in the proviso to Section 5(5) of the said Act.
(c) In all other cases, after the Court records a finding that a person is a beggar, the Court can order detention of such a person in a certified Institution. But, heretoo, the Court must first explore the possibility of applying the principle of Criminal Appeal No. 133/2010 Page 7 of 9 : 8 : admonition as given in the proviso to Section 5(5) itself.
14. The learned MM has clearly committed a illegality by stamping the appellant as a convict, and sentencing him. The impugned order is set aside. The Department of Social Welfare / Certified Institution is directed to release the appellant. The Department of Social Welfare is further directed to arrange the safe journey of the appellant from Delhi to his native place and report in his regard be submitted to this Court within fifteen days from the date of this order. The articles of personal search of appellant as mentioned in the personal search memo be also returned to him.
15. On 18.12.2010 this Court made a surprise visit to Lampur Certified Institution to meet various inmates lodged there. It was shocking to find that more than 50 senior citizens, who have educated and married their children and settled them in life, are lodged there. On hearing them it was found that they have been insulted and pushed out of their houses by family members and some out of insult and annoyance left the house. Such senior citizens are victims of apathy, insensitiveness and circumstances, for whom new law has been framed for protection of senior citizens. The Mobile Magistrates, in such cases should take cognizance and send such cases for investigation and registration of cases against their family members, rather than sending them as beggars to Jail of Certified Institution.
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16. With these observations the appeal is disposed off. Trial Court record along with copy of this Judgment be sent back. File of appeal be consigned to Record Room.
Announced in open Court (C.K. CHATURVEDI) rd on this 3 day of February, 2011 District JudgeII cum ASJ (North) Delhi Criminal Appeal No. 133/2010 Page 9 of 9