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5. I have heard Ms. Preeti Gupta Advocate, learned counsel for appellant and Shri Om Prakash, 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 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 : 3 : 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 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 : 4 : 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.
(2) Where the Court is satisfied that the person before it was found begging and therefore is compelled to : 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.