This article is written by Sanchit Singh, from VIPS, New Delhi.
Significance of Examination of Accused
The Power of the Court to examine an accused is provided under Section 313 of the Criminal Procedure Code, 1973.
This Section gives power to the court to examine an accused emphasising on the principle of natural justice- audi alteram partem (no one should be left unheard). Accordingly, the accused may be asked to furnish information regarding the incriminating allegations made against him, which the Court accepts as an explanation from the side of the accused. In the case of circumstantial evidence, it is determined whether the chain of circumstances is complete or not. (Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150)
Scope and Objective of Section 313, Cr.PC
In the case of Sanatan Naskar & Anr. v. West Bengal, the scope and objective of Section 313 of the code was laid down as:
- To establish a direct dialogue between the accused and the court: by putting all pieces of incriminating evidence against the accused before him and providing a platform for the accused to provide an explanation.
- To test the veracity of the Prosecution’s case: The examination of the accused is not a mere procedural formality but is important to check the acceptability of the prosecution’s case so established before the court.
Section 313, Cr.PC provides wide scope by accepting information from the accused’s side after presenting all evidence of the prosecution proving incrimination of the said person accordingly. (Sanatan Naskar & Anr. v. State of West Bengal; AIR 2010 SC 3507)
Section 313, Cr.PC Provision Analysis
Methodology of Recording Statements
In Dehal Singh v. State of Himachal Pradesh, the court observed that the statement of the accused under Section 313, Cr.PC shall not be administered under oath. Accordingly, the statement would not be accepted as evidence under Section 3 of the Indian Evidence Act, 1872.
The same regarding the administration of oath is provided in Section 313(2).
For the purpose of understanding the Section:
“313. Power to examine the accused-
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case:
Provided, that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may, tend to show he has committed.”
By reading the provisions, we can see that question under clause (1)(a) is optional and discretionary. However, clause (1)(b) is mandatory, accordingly providing the accused opportunity to be presented with evidence and explanation of the incriminating charges thereof. (State of Kerala v. Rajappan Nayar; 1987 Cr. L. J. 1256)
Section 313(1)(b) casts a duty on the court to provide an opportunity of explaining to the accused against the incriminating evidence presented by the prosecution regarding his association with the offence committed. (State of Maharasthra v. Sukhdev Singh; AIR 1999 SC2100) (Sanatan Naskar & Anr. v. State of West Bengal; AIR 2010 SC 3507)
During Enquiry or Trials
An accused can be examined by the court under Section 313, Cr.PC for every enquiry or trial.
Section 2(g) of the Cr.PC defined “enquiry” as:
“enquiry means any enquiry other than a trial conducted under this Code by a Magistrate or Court”
A Trial commences after the charge has been made. An Enquiry does not result in a conviction or acquittal, unlike a trial that commences the procedure resulting in either/or.
Terms defined for the purpose of Section 313, Cr.PC in cases
For the purpose of Section 313, Cr.PC, an accused means someone who is under-trial and under the examination of the court and not a person who has been accused under the same jurisdiction of the court in another case. [Karamalli Gulamalli; (1938) 40 Bom. LR 1092 (1939)]
The term is used to show the opportunity offered to the accused for an explanation based on the incriminating evidence that would have been presented before him during cross-examination by his counsel. Moreover, it would be premature to seek information personally till the time the accused has not exhausted all opportunity to cross-examine the witness. [B. Chainraj v. Asstt. Collector of Central Excise; (1989) (1) Crimes 229, 231 (MAD)]
“At any stage”
The court has the discretionary power to question the accused under Section 313(1)(a) at any time during the trial or enquiry even before a charge is established accordingly. (Emperor v. Genu Gopal; (1929) 31 Bom LR 1134)
Under Section 313(1)(b) the court shall be responsible to present all evidence before the accused which appears incriminating against him and accordingly reply will be sought thereto. (State of Nagaland v. Lipok Ao; 2007 Cr.L.J. 3395 (DB) (Ajai Singh v. State of Maharashtra; AIR 2007 SC 2188)
It is also important to note that the accused is provided with the opportunity to not avail the chance of providing explanation against the evidence incriminating him in the court.(Subhash Chandra V. State of Rajasthan; AIR 2007 SC 2188)
Attention must be brought towards the inculpatory pieces of evidence to give the accused an opportunity to provide an explanation to the evidence presented against him, if he chooses to do so. The court under this section is under a legal obligation to put all incriminating materials and solicit a response from the accused. Circumstances not put before the accused cannot be used against the accused in his examination under Section 313, Cr.PC. (State of U.P. v. Mohd. Iqram & Anr; AIR 2011 SC 2296)
“Examining accused u/s 313, Cr.PC more than once”
If the court has already conducted an examination of the accused, the court has the power to call the accused again to the court for examination and to answer before the court. However, it is stated that after the conclusion of the prosecution’s case, the power of calling on an accused more than once should not be used in a routine or mechanical manner. (Rajan Dwivedi v. CBI; 2008 Cri.L.J.; 1440 (1447) DEL)
If fresh witnesses are examined after the examination of the accused, it is obligatory to further examine the accused under section 313, Cr.PC. (Emperor v. Bhau Dharma; (1928) 30 Bom LR 385)
Provisos of Section 313(1)(b)
In a summons case where the court has dispensed personal attendance of the accused, the entire examination of the accused under the said section may accordingly be dispensed.
Question arises on whether the examination of the accused under the section can be dispensed away with in a warrant case?
No discretion has been provided to courts u/s 313(1)(b). However, an exception was highlighted in- Basavaraj R. Patil v. State of Collector; AIR 2000 SC 3214. The Supreme Court stated that as a general rule, it was mandatory for an accused to be personally present in the court to answer questions under Section 313(1)(b). It was further stated that if remaining present in the court personally created undue hardship and large expense then the court can dispense such examination even in a warrant case, after adopting a measure to comply with the provision provided under the section.
For this purpose, the accused has to file with the court an affidavit sworn-in by himself that he may be allowed to answer the questions without physical presence in the court due to justifiable reasons. It must also contain narration of the situations of hardship and large expenses making personal presence in the court difficult and that no prejudice will be caused by dispensing with his personal presence with an undertaking that the accused will not take any grievance on that accord at any stage of the case.
It is also observed that the section does not envisage the examination of the Counsel on behalf of the accused.
Questioning and Examination based on Material Circumstance
As previously stated, there is a determination whether the chain of circumstances is complete or not. The prosecution should not link a long series of events and expect the accused to comment on the entire narration presented before him. Rather, the accused should be questioned on each separate material circumstance which is to be used against him.
It is essential that the examination take place in a fair and framed manner where even an illiterate person will be able to appreciate the facts and evidence presented before him. Moreover, during the examination, even a literate person’s mind is apt to be perturbed when facing a trial. Hence, it is important that the questioning takes place in a simple and separate manner such that even an illiterate person can understand and appreciate. (Tara Singh v. State of Punjab; AIR 1951 SC 44)
The practice of putting all evidence against the accused in a single question and accordingly giving the opportunity to explain is improper because it impairs the accused from giving a rational and intelligent explanation, considering the amount of information that needs to be processed.
The opportunity of examination of the accused under Section 313, Cr.PC is part of the principle of fair trial and if it takes place in an improper manner, it may disrupt the true appreciation of the evidence provided. (Naval Kishore v. State of Bihar; (2004) 7 SCC 502)
An excellent way of ensuring the concept of simple and separate questioning of the accused is highlighted by a practice where the questions and associated answers are recorded separately so as to ensure that the accused was able to comprehend the questions placed before himself and answer them accordingly. [(Nicolau Almeida v. State; 1988 (2) Crimes 774, 781 (Bom) (DB)]
Recording of statements of accused persons simultaneously and putting the same set of questions to the other accused persons may create prejudice against the accused, hence the court held said practice to be improper. [State of Maharashtra v. Goraksha Ambaji Adsul; 2006 Cri.L.J. (NOC) 45]
There will be entire recording of the answers in full and not in a monolithic manner. [Dada Saheb Patalu Misal v. State of Maharashtra; 1987 Cri.L.J. 1512 (BOM) (DB)]
Examination of Accused in Circumstantial Evidence Cases
In Munish Mubar v. State of Haryana; AIR 2013 SC 912, it was obligatory for the court to present all incriminating material associated with the accused, even in cases of circumstantial evidence so as to determine whether the chain of circumstances has been completed whilst taking note of the explanation of the accused against the evidence presented in the court.
It was further reiterated in Mushir Khan v. State of Madhya Pradesh; AIR 2010 SC 762.
In the Munish Mubar Case (Supra), the court held that “circumstantial evidence is a close companion of actual matrix, creating a fine network through which can be no escape for the accused, primarily, because such facts when taken as a whole, do not permit us to arrive any other inference but one, indicating the guilt of accused.”
Considering the facts of the case:
In this case accused appellant and deceased both having illicit relation with co accused, the car of appellant was found parked at Airport where the deceased was to arrive and the car was moved out of parking area after arrival of the flight, presence of the appellant at the place of occurrence proved by his telephonic records. Articles recovered on disclosure made by the appellant found to contain human blood, the appellant gave no explanation as to the parking of his car at the Airport or about the recoveries made at his instance. Circumstance clearly connects appellant with crime. And merely making the bad statement under section 313 by the accused that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established.
The court held expectation of an answer from the accused on the reason for why the accused had gone to the Airport and why the car was parked there for several hours.
In Madhu @ Madhurantha and Another v. State of Karnataka; AIR 2014 SC 394– (Dr. B.S. Chauhan and S.A. Bobde, JJ.), the court held that while dealing with “last seen together” cases where the deceased was present with the accused at the time of death, it was obligatory for the accused to explain the occurence of the death and under section 313, Cr.PC provide explanation to the incriminating charges against himself presented during the examination. The court will accordingly note the version presented by the accused in response to the accusations, so as to determine whether the chain of circumstances is complete or not.
The same judgement was held in Mushir Khan @ Badshah Khan and Another v. State of Madhya Pradesh; AIR 2013 SC 762 and Dr. Sunil C. Dennial; AIR 2013 SC (Cri) 193) with regards to cases where the accused was last seen with the deceased.
Pleas Inconsistent with Section 313, Cr.PC
In State of Madhya Pradesh v. Balu; AIR 2005 SC 222, the court rejected the plea of non-consideration of a plea made by the accused under Section 313, Cr.PC to the effect that there was animosity between the family and the accused with regards to the plea because the defence of consent was taken by the accused. These were inconsistent pleas and were accordingly found unacceptable.
In Kanchan v. State of U.P.; 1982 CrLJ 1982 All Cr 304 1633, it was held that plea of alibi and private defence at the same time were inconsistent and not acceptable by the court.
Effect of Non-Compliance with Section 313, Cr.PC
In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra; (1973) 2 SCC 793: (AIR 1973 SC 2622), the court considered the situation where a vital piece of evidence against the accused and accordingly held that the appellate court can question the counsel for the accused as regards the circumstance omitted to be put before the accused and held-
“…It is trite law, nevertheless fundamental, that the prisoner‟s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C., the omission has not been shown to have caused prejudice to the accused…”
The same was reiterated in State (Delhi Administration) v. Dharampal; AIR 2001 SC 2924 where it was held-
“Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him…”
In Gyan Chand and Others v. State of Haryana; AIR 2013 SC 3395, Dr. B.S. Chauhan and S.A. Bobde, JJ, plea for non-compliance of examination under Section 313, Cr.PC for the first time in the Supreme Court. However, the court could not find any prejudice that was put before the accused persons, if facts of conscious possession were not put to them. Thus the court held that the case was not vitiated by non-compliance of Section 313, Cr.PC.
Mere improper/defective examination under Section 313, Cr.Pc is no ground for setting aside the accusations placed against the accused, unless argument of prejudice in that accord is provided. Unless an examination of the accused is conducted in a perverse way, there can be no prejudice against the accused. (Shobhit Chamar v. State of Bihar; AIR 1998 SC 1693)
In Nar Singh v. State of Haryana; AIR 2015 SC 310, the court held the following while dealing with the question of such non-compliance with the section-
“…Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. In so far as non-compliance of mandatory provisions of S. 313, it is an error essentially committed by the Trial Court, the same has to be corrected or rectified in the appeal.”
The court further established burden of proof stating-
“The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of S. 313 has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under S. 313 it cannot be inferred that any prejudice had been caused to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice…”
“…Hence, if all the relevant questions were not put to accused by the trial court and when the accused has shown that prejudice was caused to him, the appellate court is having power to remand the case to examine the accused again under S. 313 and may direct remanding the case again for re-trial of the case from that stage of recording of statement under S. 313 and the same cannot be said to be amounting to filling up lacuna in the prosecution case.”
Important things to take into consideration when an Application under Section 313, Cr.PC is made
- The courts may reply upon the explanation provided by the accused but may find him guilty for an offence based on some other evidence provided to the court led by the prosecution. However, such consideration should not be seen in isolation but in conjunction with the prosecution’s evidence. [Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507]
- Conviction cannot be made solely based on explanations provided before the court by the accused under Section 313, Cr.PC – as previously stated Section 313(2), Cr.PC provides for non-administration of oath for said examination as it does not have evidentiary value under Section 3 of the Indian Evidence Act, 1872. [Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507]
In Rafiq Ahmad @ Rafiq v. State of U.P.; AIR 2011 SC 3114, the court in this regard held-
“It is true that the statement under section 313, Cr.P.C. cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of evidence…”
- Statements in Bail Petition– the statement of the accused made on his behalf by his Counsel in the bai application cannot be read as his admission as it was not put before him under Section 313, Cr.PC. [Randhir Singh v. State; 1980 Cri.L.J. 1397 (Del – DB)]
- The statements of Co-accused persons under Section 313 of the code, cannot be used against the main accused considering that there was no opportunity for cross-examining the co-accused in this regard. However, the evidence produced may be used for or against him in any other enquiry or trial.
- In Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150, no matter how weak the evidence of the prosecution, the court is obliged to examine the accused and seek explanation of the incriminating charges and associated evidence from the accused. Also, all circumstances that have not been placed before the accused cannot be used against him and have to be excluded from consideration.
- Does no answer/evasive or untrustworthy answer by the accused under Section 313, Cr.PC justify conviction?
This question was answered in negative in Nagaraj v. State (Tamil Nadu); (2015) 4 SCC 739, where the Supreme Court observed that the impugned High Court judgement had found answers to be evasive and untrustworthy and accordingly held this as another factor of guilt, however not sole factor.
The Supreme Court clarified the legal position by stating-
“In Parsuram Pandey v. State of Bihar; (2004) 13 SCC 18 the Supreme Court has held that section 313, Cr.P.C. is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused and by way of its corollary, it benefits the court also in reaching the final conclusion and its intention is not to nail the accused but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem as explained in Asraf Ali v. State of Assam; (2008) 16 SCC 328.”
In Sher Singh v. State of Haryana; AIR 2015 SC 980, the Supreme Court stated “refusal to answer any question put to the accused by the court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the court to record a finding of guilt on this score. The burden is cast on the prosecution to prove its case beyond reasonable doubt and once this burden is met, the statements under section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version.”
In the case, the High Court was held incorrect for concluding an adverse inference of guilt by mere non answering or unsatisfactory answer because of what he has stated or failed to state under the examination prescribed under Section 313 of the Code of Criminal Procedure.
- Adverse Inference of the accused- In Phula Singh v. State of Himachal Pradesh; AIR 2014 SC 1256 – (Dr. B.S. Chauhan and S.A. Bogde, JJ.), the court held that the accused has the right to remain silent and not answer or even remain in complete denial during examination under Section 313, Cr.PC. However, such silence and denial could be drawn against him.
False denial of evidence established against him may be used as incriminating evidence against the accused. [Munna Kumar Upadhyay @ Munna Upadhyay v. State of Andhra Pradesh; AIR 2012 SC 2470]
As has been held in “Ram Naresh and Others v. State of Chhattisgarh; AIR 2012 SC 1357, Munish Mubar v. State of Haryana; AIR 2013 SC 912 and Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150, the court held that the accused has a duty to furnish his explanation under section 313, Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under section 313, Cr.P.C. is being accordingly recorded. However, in such circumstances, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with the law. The option lies that the accused maintains silence coupled with simpliciter denial or, in the alternate to explain his version and reasons, for his alleged involvement in the commission of crime.” – Mahboob Ali, HJS
This is the statement which the accused makes without fear or right of the other party to cross examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. [Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507]
An adverse inference can only be taken against the accused when the incriminating evidence against the said accused is fully established and the accused is unable to present an explanation for the same. [Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150]
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