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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 10.20 am, at GT Road, Jamuna Bazar, Delhi, the appellant was found begging from the passersby by raising hands and thereby committed an offence of begging defined under ­: 2 :­ Section 2(1) (i) of the Act. Notice under Section 251 Cr.P.C was served on the appellant on 08.03.2010, to which the appellant voluntarily pleaded guilty.

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 ­: 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.

11. It is seen from the record of the case that learned Special MM observed in para 3 as under:­ " On the basis of the present complaint and after hearing of the accused persons, prima facie case u/s 2 (1) (i) of the BPB Act 1959 is made against the accused. So, a notice u/s 251 Cr.P.C. was served upon the accused for the offence u/s 2(1) (i) and 5(5) of the BPB Act, 1959 and in reply to the notice he pleaded guilty and does not claim trial. Accusation has been explained to the accused in vernacular and he has been cautioned that he is not required to plead guilty and he has been told about the consequences also and despite the consequences being told the accused has voluntarily pleaded guilty. He stated that his parents have already expired and is a wonder from place to place and has no fix place of abode. He had a wife hailing from Bihar who had already left him about 15­16 years back. He is not doing any work and is dependent on soliciting / receiving alms from the people at public places for his daily needs as he has no source of income. Today he was arrested while he was found begging from the passersby at G.T. Road, Hanuman Mandir, Jamuna Bazar. Report of the Probation Officer was called. His report dated 30.11.2010 seen and placed on the record. The accused voluntarily admitted that he was arrested while found begging at G.T. Road, Hanuman Mandir, Jamuna Bazar. A sum of Rs. 04/­ as the amount solicited or received as alms from the passersby was recovered from him on the basis of the personal search of the accused as per the Personal Search Memo. In view of the admission of the offence by the accused and after scrutinizing the entire record, SIR of the Probation Officer and reply given to the notice by the accused person and on the basis of a summary ­: 6 :­ enquiry conducted in terms of Section 591) of the B.P.B. Act, 1959, I am satisfied and convicted that the accused who has voluntarily pleaded guilty, was found begging and is a beggar u/s 2(1) (i) of the BPB Act 1959. Therefore, the accused is guilty of the offene charged and is required to be dealt in accordance with Section 5(5) of the BPB Act and thereafter the accused 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.

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 ­: 7 :­ must proceed in the following manner: