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TMI Blog2012 (8) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts: 3. On 06.12.1998, seven persons including Rajoo are alleged to have gang-raped 'G'. The Trial Court convicted all of them for the offence and sentenced each of them to 10 years rigorous imprisonment and a fine of Rs. 500/-. In default thereof they were required to undergo rigorous imprisonment for a further period of 3 months. 4. Appeals were filed by all the convicted persons before the High Court. By its judgment and order dated 05.09.2006, the High Court set aside the conviction in respect of five of the convicts, but upheld the conviction in respect of Rajoo and Vijay. We have been informed that Vijay has accepted the judgment of the High Court. Only Rajoo has appealed against his conviction and sentence. Before us Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a Supreme Court Legal Services Committee, State Legal Services Authorities as well as Taluk Legal Services Committees. Section 12 of the Act lays down the criteria for providing legal services. It provides, inter alia, that every person who has to file or defend a case shall be entitled to legal services, if he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the concerned authority is satisfied that such person has a prima facie case to prosecute or defend. 9. It is important to note in this context that Sections 12 and 13 of the Act do not make any distinction between the trial stage and the appellate stage for providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, subject of course to the accused person not objecting to the providing of a lawyer. 12. The essence of this decision was followed in Khatri (II) v. State of Bihar (1981) 1 SCC 627. In that case, it was noted that the Judicial Magistrate did not provide legal representation to the accused persons because they did not ask for it. This was found to be unacceptable. This Court went further and held that it was the obligation of the Judicial Magistrate before whom the accused were produced to inform them of their entitlement to legal representation at State cost. In this context, it was observed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. 15. We propose to briefly digress and advert to certain observations made, both in Khatri (II) and Suk Das. In both cases, this Court carved out some exceptions in respect of grant of free legal aid to an accused person. It was observed that there may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State. We have some reservations whether such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty. If such exceptions are accepted, there may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a reasonable opportunity of attaining it when charged with a serious offence. But, the Supreme Court held that: An accused has the right to employ a lawyer, but the state does not guarantee to provide the lawyer's services - in this respect its role is passive, in the sense that it must not impede the exercise of the right by the accused. The exception is Under Section 24(f) [of the Bill of Rights Act], when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the accused who must take the necessary steps to obtain assistance under the Legal Services Act. 19. It was noted that the Supreme Court agreed with the High Court of Australia in Dietrich v. R. 1992 HCA 57 that, other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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