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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 26.11.2010 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 26.11.2010 at about 10.15 am, at footpath over bridge, Maharani Bagh, New Delhi, the appellant was found begging from the passersby by raising hands and thereby committed an offence of ­: 2 :­ begging defined under Section 2(1) (i) of the Act. Notice under Section 251 Cr.P.C was served on the appellant on 26.11.2010, 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 being enquired the accused voluntarily admitted before the Court that he was arrested while found begging from the passersby at Footpath near foot over bridge, Maharanibagh, New Delhi at 10.15 a.m. and a sum of Rs. 4781/­ 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 have two brothers, wife, two sons and a daughter at his native place. He is uneducated. He came Delhi twenty days back and staying at Maharani Bagh, Footpath. He is an old and sick person. So he is unable to do any work. He was begging for his survival in Delhi. 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: