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JUDGMENT Badar Durrez Ahmed, J.
1 This revision petition is directed against the order dated 13.10.2006 passed by the learned Additional Sessions Judge whereby the petitioner's appeal against the judgment dated 25.08.2005 and order on "sentence" dated 29.08.2005 passed by the learned Metropolitan Magistrate was rejected. The learned Metropolitan Magistrate found the petitioner to be a "beggar" and ordered his detention in a Certified Institution for a period of one year under Section 5(5) of the Bombay Prevention of Begging Act, 1959 [As extended to the Union Territory of Delhi] (hereinafter referred to as 'the said Act'). The finding that the petitioner was a beggar was upheld by the learned Additional Sessions Judge. However, the duration of the detention was reduced to 6 months by the learned Additional Sessions Judge.
2. Being aggrieved, the petitioner has preferred this revision petition. The learned Counsel for the petitioner has taken the point that the petitioner has been found "guilty" only on the basis of the testimony of two police officers and no independent witness whatsoever was examined. The allegations against the petitioner as per the prosecution case were that on 29.07.2005 at about 12.05 p.m. at the Railway Crossing at Rampura, Delhi, the petitioner was found begging from the passers-by by a raiding party headed by PW-1 (Ramesh Kumar). The prosecution examined two witnesses, PW-1 (Ramesh Kumar) and PW-2 (ASI Rozy Khanna) who was also a member of the raiding party. It was stated by them that they were on an anti-begging raid and when they reached the said Railway Crossing, the petitioner was found begging from members of the public. A sum of Rs. 47/- was also recovered on the basis of a personal search conducted on the petitioner.
3. The learned Counsel for the petitioner submitted that at 12.05 p.m. at the said crossing, there were a number of other people who were not members of the raiding party, but none of them were produced as witnesses. The courts below examined this contention of the petitioner and came to the conclusion that the mere fact that the public witnesses have not been examined would not throw out the prosecution case if the testimonies of the police officers were unshakable. In the present case, the courts below have found the testimonies of the police officers to be trustworthy. In this background, the question which arises for consideration is whether the courts below were right in law to have recorded the finding that the petitioner was a "beggar" and in ordering his detention in a Certified Institution.
4 But, before I take up this question, I would like to comment upon an abominable expression used in the judgment dated 25.08.2005 of the Metropolitan Magistrate to the following effect:
accused was found begging by raising his front paws from the passers by The alleged act of soliciting alms by the petitioner has been repeatedly described in this manner in the said judgment. Describing the hands of a human being as "front paws" is appalling. It displays scant regard for human values. It is one thing to uphold the social objective of eliminating "begging" and weaning away "beggars" from indulging in solicitation of alms and for encouraging them to join the work-force and for providing them opportunities to do so, but to describe their hands as "front paws" is nothing short of contempt for them. The compact Edition of the Oxford English Dictionary describes the word "paw" as under:
1. The foot of a beast having claws or nails 2 Contemptuously or jocularly applied to the hand, esp. when clumsy, or awkwardly used.
Beggars are not beasts with claws! They are human beings and they should be treated as such.
5 Who is a "beggar"? What is "begging"? The answers to these questions are inextricably intertwined. Section 5 (4) of the said Act requires the court to record a finding that a person is a "beggar" if the court, on the basis of a summary inquiry made by it in terms of Section 5 (1) of the said Act, is satisfied that such person was found "begging". So, a "beggar" is a person found "begging", a term which is defined in Section 2 (1) (i)1 of the said Act. All the five Clauses (a) to (e) deal with solicitation and receiving of alms in one way or the other. But, all solicitation or receiving of money or food does not amount to 'begging' as, if, such solicitation, receipt of money or food is for a purpose authorised by any law or is authorised in the manner prescribed by the Deputy Commissioner [or such other officer as may be specified in this behalf by the Chief Commissioner], then it is specifically excluded. This takes us to the provisions contained in Rule 32 of the Delhi Prevention of Begging Rules, 1960 (hereinafter referred to as "the said Rules"), which prescribe the manner of authorising the soliciting or receiving of money or food or gifts for a purpose. A reading of Rule 3 reveals that a permit may be obtained for such solicitation and the permit would be issued in Form A. A permit holder soliciting alms in terms of the permit would, therefore, not be regarded as begging, though he essentially does the same thing as one without such a permit. Legitimate and authorised charities, therefore, who collect alms for the needy cannot be said to be indulging in "begging" as defined in the said Act. So, the definition is essentially targeted at solicitation of alms by individuals.
6. This takes the discussion to another level. Why does a person beg? There are various reasons for a human being to solicit alms. Firstly, it may be that he is down-right lazy and doesn't want to work. Secondly, he may be an alcoholic or a drug-addict in the hunt for financing his next drink or dose. Thirdly, he may be at the exploitative mercy of a ring leader of a beggary "gang". And, fourthly, there is also the probability that he may be starving, homeless and helpless3. Although, apparently, the said Act does not distinguish between the four different kinds of "beggars" mentioned above, in my view, there is enough scope in the provisions of the said Act to treat them differently as, indeed, they should be. Professional beggars who find it easier to beg than to work may be appropriately dealt with by passing orders under Section 5(5)4 of the said Act for their detention in Certified Institutions. But, what about the beggar who falls in the second category ? His is not really a problem of "begging" but a problem of addiction. The solution lies in attempting to de-addict him and help in ridding himself of the malady. Then there is the third category of 'beggars' who are exploited and forced into begging by other ring leaders. A different approach is required here. The person found "begging" need not and ought not to be detained in a Certified Institution. Because, his act of solicitation was not voluntary but, under duress, the result of exploitation at the hands of others. The ring leaders need to be rounded up and penalised under Section 115 of the said Act and these "beggars" need to be released from their exploitative clutches. Lastly, I come to the fourth category of "beggars" mentioned above. They 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 de-humanising them. It is here that courts must step in and recognise the defense of necessity. Judicial notice must be taken of the fact that as the accused are poor they will not have access to quality legal assistance, if at all. The duty is therefore cast upon the courts to satisfy themselves that the accused did not have a defense of necessity. Prevention of begging is the object of the said Act. But, one must realise that embedded in this object are the twin goals-Nobody should beg and nobody should have to beg.
7. The defense of necessity needs some explanation. Like the other defenses of self-defense and duress, this is also a defense against culpability and punishment. Comparing the defenses of self-defense, necessity and duress, Lamer, CJ of the Supreme Court of Canada in Hibbert v. The Queen  2 SCR 973 (at page 1012) observed:
The defenses of self-defense, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents. In the case of self-defense and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to causes, such as forces of nature, human conduct and other than intentional threats of bodily harm, etc. Although this distinction may have important practical consequences, it is hard to see how it could act as the source of significant juristic differences between the three defenses.
A similar view was expressed by Lord Hailsham LC in R. v. Howe  AC 417 (at page 429):
There is, of course, an obvious distinction between duress and necessity as potential defenses; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is, in my view, a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other.
So, while in the case of exploitation and compulsion by the ring leaders of a 'begging racket', the "beggar" who begs under compulsion of fear for bodily harm from them would have the defense of duress, where the "beggar" takes to begging compelled by poverty and hunger, he would be entitled to invoke the defense of necessity. The common feature of both defenses being the element of involuntariness or, shall I say, lack of legitimate choices. It is the absence of legal alternatives that provides the defense of duress or necessity. This is aptly described by Dickson J giving the majority opinion of the Supreme Court of Canada in Perka v. The Queen  2 SCR 232 in the following manner:
Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or present the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists "necessity" as a defense, providing the wrongful act was not "avoidable". The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of "necessity" and human instincts.
8. Returning to the provisions of the said Act, Section 5(5) of the said Act provides that a person found to be a beggar has to be detained in a certified institution for a period of not less than one year, but not more than three years. However, the proviso to this sub-section indicates that if the court is satisfied from the circumstances of the case that the person found to be a beggar as aforesaid is not likely to beg again, it may, after due admonition, release the beggar on a bond for the beggar's abstaining from begging and being of good behavior, being executed with or without sureties as the court may require by the beggar or any other person whom the court considers suitable. The circumstances that have to be taken into consideration while passing any order under the Act are indicated in Section 5(6)6 of the said Act, such as the age and character of the beggar, circumstances and conditions in which the beggar was living, reports made by the Probation Officer and such other matters as may, in the opinion of the court, require to be taken into consideration in the interest of the beggar. This is an extremely significant provision. It stipulates that in passing any order under the said Act (which includes an order passed under Section 5(4) and 5(5) of the said Act) the Court shall have regard to all the considerations mentioned therein. Let us examine them one by one. The consideration of the age and character of the 'beggar' requires the court to examine the antecedents of the person in question. When the court is required to consider the circumstances and conditions in which the beggar was living, it necessarily includes the factors such as helplessness, poverty and duress. The reports of the Probation Officer should normally reflect the beggars' societal ties, family members, antecedents, health, financial status, habits, education, alcoholism / addiction, etc. Other factors may also be taken into consideration while passing any order under the Act, provided such consideration is in the interest of the beggar. This provision, therefore, gives a great degree of latitude to the courts in passing orders under the provisions of the said Act. With regard to the report made by the Probation Officer, the proviso contained in Section 5(7)7 of the said Act must not be lost sight of. It stipulates that if such report relates to the character, health or conduct of or the circumstances and conditions in which, the beggar is living the court may communicate the substance of the report (which is otherwise confidential) to the beggar who may be given an opportunity of producing evidence which may be relevant to the matters stated in the report. In the context of the present case, it may be mentioned that both the courts below while ordering the detention of the petitioner placed reliance on the Social Investigation Report which indicated that the petitioner was a habitual beggar, he had no other means of livelihood and had a wife and three children dependent upon him. However, there is nothing to indicate that any opportunity was given to the petitioner to produce evidence to controvert the report inasmuch as it depicted him to be a habitual beggar. Since both courts ordered detention on the basis of this report, an opportunity ought to have been given to the petitioner. Since, that was not done, in my view, the petitioner, in this case, was not liable to be detained. There are other reasons also for releasing the petitioner from detention forthwith.
9. Before I specify those reasons, there is another interesting but, difficult aspect to the question of legitimacy of begging. What does the beggar do? He solicits alms by words spoken or actions expressed. And, it would be instructive to remember that Article 19(1)(a) of the Constitution of India guarantees to all citizens the right to "freedom of speech and expression". Would "begging", therefore, not be covered by this guarantee? Just as an advertisement of a product would be within the perimeter of this valuable fundamental right, begging, too, could fall within it. After all, begging involves the beggar displaying his miserable plight by words or actions and requesting for alms by words (spoken or written) or actions. Does the starving man not have a fundamental right to inform a more fortunate soul that he is starving and request for food? And, if he were to do so, would he not be liable under the said Act for being declared as a 'beggar' and consequently being deprived of his liberty by being sent for detention at a certified institution? Does this not mean that the said Act leads to deprivation of liberty on the basis of a law which runs counter to the fundamental right of freedom of speech and expression? Does this, therefore, not mean that even the fundamental right of protection of life and personal liberty, which is enshrined in Article 21 of the Constitution, is also violated ?
10. I am mindful of the fact that I am not deciding a writ petition where the validity of the said Act is in question. It is true that the case before me is only a revision petition challenging the judgment passed in an appeal under the said Act. But, an examination of these aspects touching upon the constitutional validity of the said Act is necessary because such a discussion would reveal the manner in which and the limits to which the provisions of the said Act can be taken. Although, on first impression, the idea of "begging" being protected by Article 19(i)(a) of the Constitution may appear a little quaint, there are decisions of courts in United States of America holding begging to be constitutionally protected speech. But, this does not mean that begging cannot be prohibited. The prohibition must, however, operate within limitation. In The People of the State of New York v. Eric Schrader: 617 N.Y.S. 2d 429 the validity of the ban on begging in the New York City Transit System came in question. Comparing the solicitation of funds by legitimate charities and begging by individuals in need, the Court observed:
Thus, it is uncontested that a charity has a First Amendment right to solicit funds to feed or clothe or otherwise aid those in need. It would be unreasonable to conclude that the Federal Constitution does not provide the same free speech protection to the individual in need as it does to the solicitor for a charity, to stand on the same public street corner and ask for money. No rational distinction can be made between the message involved, whether the person standing in the corner says " Help me, I'm homeless" or "Help the Homeless.
Though begging was accepted as constitutionally protected speech, the law banning begging in the New York City transit system was upheld because it was found to be a reasonable safety precaution.
11. Viewed in this light, begging being part of the Constitutional guarantee of freedom of speech and expression, can only be subjected to reasonable restrictions by law in the interest of, inter alia, public order, decency or morality. Thus the said Act and, in particular, its provisions having penal consequences and effecting the liberty of individuals must be construed in a manner which results in their being interpreted as imposing reasonable restrictions. These considerations lead to the conclusion that even where the person is found begging, he need not necessarily be ordered to be detained in a Certified Institution. As discussed above, he ought not to be ordered to be detained if, in considering his condition and circumstances of living as required under Section 5 (6) of the said Act, the court discerns a defense of necessity; a situation where the person had no legitimate alternative to begging to feed and clothe himself or his family. Similarly, where it is apparent that the person was found begging under the exploitative command of others, he ought not to be deprived of his liberty by being sent to a Certified Institution for detention. In the light of the discussion above, the word "shall" appearing in Section 5(5) of the said Act would have to be tempered with the considerations specified in Section 5 (6) of the said Act, which also contains the word "shall". The effect would be that, since "interest of the beggar" is dominant, the word "shall" appearing in Section 5 (5) would have to yield to the "shall" appearing in Section 5 (6) and be read as "may". Such a reading would not only serve the object of the Act better but would also bring in the restrictions to liberty within the Constitutional requirements of reasonableness. It is true that the proviso to Section 5 (5), on a plain reading, does give the court power to release a beggar after due admonition. But, that is pre-fixed by the condition that he is not likely to beg again and suffixed, if I may use the expression, with the requirement of furnishing a bond for abstaining from begging and good behavior. That would be wholly inappropriate where a person begs out of sheer necessity or compulsion.
12. In the back-drop 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 inferences 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 it is compelled to 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 defense of duress or necessity, the person ought not to be detained. As pointed out above, whether the specific defense 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 defense.
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 de-addiction. The burgeoning problem of drug addiction 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 pain-killer 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 de-addiction 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, here too, the court must first explore the possibility of applying the principle of admonition as given in the proviso to Section 5(5) itself.
(3) Lastly, in no circumstance should a person ordered to be detained in a certified institution, be detained in a prison. That is clearly illegal. The State must follow this legal prescription strictly. A deviation from this would render the detention illegal and entitle the aggrieved person to be released from detention forthwith.
13. Having said all this, returning to the present case, I find that apart from the reasons already indicated above, there is another reason why the petitioner must be set at liberty. The only evidence against the petitioner is that of PW-1 and PW-2 who are both police officers who conducted the raid. Though, as the courts below have held, there is no reason to discard their testimonies on this ground alone, what have they testified to? None of them have stated that they saw someone giving money to the petitioner. On the contrary, as recorded in the trial court order, in his cross-examination, PW-1 Ramesh Kumar stated that no one gave money to the accused in his presence. Clearly, the finding that the petitioner was begging and that he was a beggar is not supported by the evidence on record. And, this is without suspecting the testimony of the two police officers in the absence of any independent public witness. Such a finding, therefore, needs to be set aside. Consequently, for this reason also, the petitioner is liable to be set free.
14. But, the matter does not end here. This case has another ugly twist. Although the courts below had directed that the petitioner be detained in a Certified Institution, he was actually sent to Tihar Jail which is entirely contrary to the provisions of the Act. This senseless and illegal act heaped insult upon injury. It is for this reason that, on the previous date, I had required the presence of the petitioner before this Court. Today, the petitioner has been produced in court by Mr Bhoop Singh who is the Caretaker of the HMB (Home for Male Beggars), Lampur, Delhi-110040. He makes a statement that the petitioner was forwarded to the beggars home on 02.12.2006 from Tihar Jail. There was no occasion for sending the petitioner to Tihar Jail. Apparently, the petitioner has been in Tihar Jail from 07.11.2006 to 02.12.2006, whereas he should not have been in jail for even a single day!
15. The impugned judgment is set aside. I direct that the petitioner be released forthwith. The petitioner is present in court and is free to go home.
This revision petition stands disposed of.