“The act of examination of accused underneath part 313
Cr.P.C. is solemn act of a trial and shouldn’t be handled as an
empty formality¹.”

Possibly, one of the crucial underrated provisions underneath the Code
of Criminal Procedure, 1973 (“CrPC/
Code“) is encompassed underneath Section 313 thereof. This
provision, which is actually meant to determine a direct
dialogue² between an accused and the Court
involved in trial or inquiry proceedings, permits an accused to
present rationalization relating to the circumstances present/ arising
in opposition to him. Unmistakably, Section 313 CrPC is a manifestation one
of essentially the most sacrosanct ideas of pure justice; audi
alteram partem³, curbing all interferences at
that stage from counsel, prosecutors, witnesses, third events,
and so on. In this regard, the Hon’ble Apex Court in Raj
Kumar Singh v. State of Rajasthan⁴, appraising the
provisions underneath Section 313 CrPC, inter alia, noticed,
“the aim of inspecting the accused particular person underneath Section
313 CrPC is to fulfill the requirement of the ideas of pure
justice i.e. audi alteram partem. This implies that the accused could
be requested to furnish some rationalization as regards the incriminating
circumstances related to him, and the court docket should pay attention to
such rationalization.” At the identical time, the Indian Courts⁵ have
persistently avowed that the examination of an accused underneath
Section 313 CrPC shouldn’t be a mere formality for the,
“[a]nswers given by the accused to the questions put to
him throughout such examination have a sensible utility for prison
courts.” Significantly, on this regard, the Hon’ble
Supreme Court in Janak Yadav v. State of
Bihar⁶, noticed, “Section 313
CrPC prescribes a procedural safeguard for an accused going through the
trial to be granted a possibility to clarify the information and
circumstances showing in opposition to him within the prosecution’s
proof. That alternative is a useful one and can’t be
ignored.” However, regardless of such assertions of regulation and its
specific pre-eminence, Section 313 of CrPC, has, regrettably,
subsisted to be an uncelebrated and infrequently, ignored, statutory
provision. Unfortunately, the prevailing apathy in the direction of the
significance of mentioned provision and the way of its compliance has,
at a number of events, resulted in grave prejudice to accused(s),
moreover augmenting the time spent in prison trial.

Section 313 CrPC envisages, broadly, two separate phases
whereby, “for the aim of enabling the accused
personally to clarify any circumstances showing within the proof
in opposition to him,” the Court is empowered/ mandated to pose
questions upon an accused. Significantly, as per Section 313(1)(a)
CrPC, the facility of the Court to query an accused is
discretionary and could also be exercised at any stage of trial/ inquiry,
“without previous warning the accused.” In
distinction, the examination of accused, usually on a case, in phrases
of Section 313(1)(b) CrPC is envisioned to be not solely necessary in
nature, somewhat, required to be undertaken, “after the
witnesses for the prosecution have been examined and earlier than he’s
referred to as on for his defence.” The Hon’ble Supreme Court
in Nar Singh v. State of Haryana⁷, whereas
coping with the polarity within the mentioned provisions/ clauses,
inter alia, noticed, “[t]listed below are two sorts of
examination underneath Section 313 CrPC. The first underneath Section
313(1)(a) CrPC pertains to any stage of the inquiry or trial; whereas
the second underneath Section 313(1)(b) CrPC takes place after the
prosecution witnesses are examined and earlier than the accused is known as
upon to enter upon his defence. The former is explicit and
non-compulsory; however the latter is common and necessary.”
Notably, regardless of the bifurcation of the mentioned levels, Section 313
CrPC supplies no limitation or embargo on the variety of instances,
which an accused could also be referred to as for examination/ questioning by
Court underneath the mentioned provision. In this regard, the Hon’ble
High Court of Delhi in Ranjan Dwivedi v.
C.B.I.⁸, clarified, “it could be
idle to contend that Section 313(1)(b) offers solely with one level in
time on the trial stage and the Court can’t name the accused to
reply the incriminating circumstances once more.” The
Hon’ble Court additional clarified that there’s, “no
implied prohibition in calling upon the accused to once more reply
questions”, offered that the identical shouldn’t be exercised,
“in a routine or mechanical manner.”
Understandably, the necessity for re-calling of an accused for
questioning underneath Section 313 CrPC turns into much more prudent/
incumbent⁹, in circumstances the place contemporary
incriminating supplies are disclosed in opposition to such an accused
pursuant to re-examination of prosecution witnesses, induction of
new witnesses, and so on.

Relevantly, the Code prescribes no explicit format during which
the questions could also be posed by the Court to an accused underneath Section
313 CrPC. However, it may be appreciated that underneath the garb of
cursory compliance of the provisions underneath the mentioned part;
arbitrary, obscure or complicated questions can’t be posed to an
accused. In reality, it’s trite regulation¹⁰ that asking of, “obscure,
complicated or compound questions won’t be correct examination of the
accused underneath part 313 of Criminal Procedure Code.” At
the identical time, Courts, whereas inspecting accused underneath Section 313
CrPC, are precluded from stringing collectively, lengthy collection of information
and searching for an evidence/ reply from an accused relating to the
similar. On the opposite, Courts¹¹ have recurrently clarified that
an accused should be questioned individually about every materials
circumstance which is meant for use in opposition to him. In this
regard, the Hon’ble Apex Court¹² has additional asseverated,
“[t]he query should be framed in such a approach as to allow
the accused to know what he’s to clarify, what are the
circumstances that are in opposition to him and for which an evidence is
wanted… questions should be honest and should be couched in a type
which an ignorant or illiterate particular person will be capable of respect
and perceive. A conviction based mostly on the accused’s failure to
clarify what he was by no means requested to clarify is unhealthy in
regulation.” Simultaneously, the provisions underneath Section 313
CrPC make it abundantly clear that underneath the mentioned provision,
questions could also be posed to an accused by Court alone¹³,
although, as per sub-Section (5)¹⁴ thereof, Court could take
help of, “Prosecutor and Defence Counsel in
making ready related questions that are to be put to the accused and
the Court could allow submitting of written assertion[15] by the
accused as ample compliance of this part.”
Appositely, even previous to insertion of the mentioned provision underneath the
Code, the Hon’ble Apex Court¹⁶, by a majority resolution, dominated
that in acceptable circumstances¹⁷, upon the satisfaction of the
genuineness of the assertion made by an accused in his utility
and accompanying affidavit, it’s, “open to the court docket to
provide the questionnaire to his advocate (containing the questions
which the court docket may put to him underneath Section 313 of the Code) and
repair the time inside which the identical must be returned duly answered
by the accused along with a correctly authenticated affidavit
that these solutions got by the accused
himself.”

Considerably, a perusal of the provisions underneath Section 313 CrPC
would manifestly show that the examination of an accused
underneath the mentioned Section is compulsory and as a corollary, it’s
fairly comprehensible¹⁸ that the incriminating items of
proof, not put to an accused can’t be relied upon for recording
his conviction. In this regard, the Hon’ble Apex Court in
Maheshwar Tigga v. State of Jharkhand¹⁹
reiterated, “circumstances not put to an accused
underneath Section 313 CrPC can’t be used in opposition to him, and should be
excluded from consideration…. Importance of the questions put to
an accused are primary to the ideas of pure justice because it
supplies him the chance not solely to furnish his defence, however
additionally to clarify the incriminating circumstances in opposition to him. A
possible defence raised by an accused is ample to rebut the
accusation with out the requirement of proof past affordable
doubt.” However, however the necessary nature of
mentioned provision, it’s trite regulation that mere faulty or improper
examination underneath Section 313 CrPC can be no floor for setting
apart the conviction of the accused, until it has resulted in
prejudice to the accused. As per the Hon’ble Court²⁰,
“it could not be sufficient for the accused to indicate that he
has not been questioned or examined on a selected circumstance
however he should additionally present that such non-examination has truly and
materially prejudiced him and has resulted in failure of justice.
In different phrases within the occasion of any inadvertent omission on the half
of the court docket to query the accused on any incriminating
circumstance showing in opposition to him the identical can’t ipso facto
vitiate the trial until it’s proven that some prejudice was precipitated
to him.” Explicably, underneath such circumstances²¹,
“onus is upon the accused individuals to show that by causes
of his not having been examined as required by S. 313 of the
Criminal P.C. he has been prejudiced.”

Appreciably, one of many staggering options of the availability
underneath Section 313 CrPC is that the mentioned Section dispenses away with
the requirement of administering oath²² to an accused and
additional supplies that the accused²³, “shall not render
himself liable to punishment by refusing to reply such questions,
or by giving false solutions to them.” Undoubtedly, an
accused’s proper to stay silent underneath Section 313(3) of the
Code is in consonance together with his proper in opposition to self-incrimination as
enunciated underneath Article 20(3)²⁴ of the Constitution of India. At
the identical time, safety is conferred to an accused particular person from
prosecution for perjury by purpose of any false solutions he could give
in response to his examination underneath the mentioned provision. However,
underneath such circumstances, regulation is settled²⁵ that the Court,
“can be entitled to attract an inference, together with such
adversarial inference in opposition to the accused as could also be permissible in
accordance with regulation.” It is, in actual fact, a settled regulation²⁶
that, although, silence and/ or failure of an accused to clarify the
circumstances showing in proof in opposition to him could show to be an
extra hyperlink within the chain of circumstances in opposition to him, nonetheless,
Courts should be cautious²⁷ of the truth that the,
“silence of the accused must not ever be allowed, to any
diploma, to turn into an alternative to proof by the prosecution of its
case.” Similarly, although, false solutions given by an
accused in his assertion underneath Section 313 CrPC could provide an
extra hyperlink within the chain²⁸ of circumstances to finish the
chain, nonetheless, the regulation is nicely settled²⁹ that the,
“falsity of the protection can’t take the place of proof of
information which the prosecution has to determine as a way to
succeed.” Clearly, the assertion of an accused underneath
Section 313 CrPC shouldn’t be handled a substantive piece of proof and
can be utilized just for appreciating/ to lend credence to the proof
led by the prosecution. In reality, on this regard, the Hon’ble
Apex Court³⁰ has clarified, “[i]f
the prosecution proof doesn’t encourage confidence to maintain the
conviction of the accused, the inculpatory a part of his assertion
underneath Section 313 CrPC can’t be made the only foundation of his
conviction.” Notwithstanding the identical, Courts should be
cautious of the truth that the assertion of accused recorded underneath
Section 313 of the Code, “can’t be ignored flippantly³¹
and must be given due weight and enough emphasis whereas
recording the guilt in opposition to him. Such an announcement will not be
sacrosanct however actually it deserves consideration.”

Conclusively, the importance of the provisions underneath Section
313 CrPC can’t be overemphasized. The mentioned provision, shouldn’t be
merely part of audi alteram partem, somewhat³²,
“confers a useful proper upon an accused to determine his
innocence and may nicely be thought-about past a statutory proper as a
constitutional proper to a good trial underneath Article 21 of the
Constitution, even when it isn’t to be thought-about as a chunk of
substantive proof, not being on oath underneath Section 313(2)
CrPC.” However, regardless of its significance being highlighted
by numerous Courts now and again, the necessary compliance of
the provisions underneath Section 313 CrPC unanimously by Court, has,
regrettably, remained to be an elusive aspiration. In reality, the
Hon’ble Apex Court in Satbir Singh v. State of
Haryana³³, whereas lamenting on the
Courts’ informal and cursory method in the direction of the compliance of
Section 313 CrPC, reiterated, “It must be famous that
the examination of an accused underneath Section 313, CrPC can’t be
handled as a mere procedural formality, because it based mostly on the
basic precept of equity. This aforesaid provision
incorporates the dear precept of pure justice “audi
alteram partem” because it permits the accused to supply an
rationalization for the incriminatory materials showing in opposition to him.
Therefore, it imposes an obligation on the court docket to query the
accused pretty, with care and warning.” Indisputably,
regardless of the copious perquisites and paramountcy of the provisions
underneath Section 313 CrPC, the mentioned provision has, sadly,
continued to stay shrouded underneath the veils of ignorance,
oversight and disdain. Appreciating the indispensability of the
mentioned provision, it could not be a magnification to state that
Section 313 CrPC is an unsung hero of prison jurisprudence,
meritorious and deserving of remission of its lengthy misplaced dues by
Courts and prison equipment, alike.

Footnotes

1.
Virendra Badhai v. State of U.P., 2014 SCC OnLine All
16357

2. Refer
to Nagaraj v. State, (2015) 4 SCC 739 and
Law Commission of India’s 41^st Report (September,
1969)

3. Latin
maxim, that means, “let the opposite facet be heard as
nicely.”

4.
(2013) 5 SCC 722

5.
Rattan Singh v. State of H.P., (1997) 4 SCC
161

6.
(1999) 9 SCC 125

7.
(2015) 1 SCC 496

8.
(2008) 146 DLT 684

9. Refer
to Mir Mohd. Omar v. State of W.B., (1989) 4 SCC
436 and Nannu Sahu v. State of M.P., 2010
SCC OnLine MP 144

10.
Bhavlal Shanker Mahajan v. State of Maharashtra, (1997)
2 Mah LJ 709

11.
Tara Singh v. State, AIR 1951 SC
441

12.
Ajay Singh v. State of Maharashtra, (2007) 12 SCC
341

13.
Refer to Arjundas Khandelwal v. Basant Lal, 1953 Cri LJ
980

14.
Inserted by Act 5 of 2009, S. 22 (w.e.f. 31.12.2009)

15.
Refer to Langpoklakpam Kiranjit Singh v. The State of
Manipur,  2017 SCC OnLine Mani 118

16.
Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC
740

17.
“25. If the accused (who’s already exempted from
personally showing within the court docket) makes an utility to the
court docket praying that he could also be allowed to reply the questions
with out making his bodily presence in court docket on account of
justifying exigency the court docket can go acceptable orders thereon,
offered such utility is accompanied by an affidavit sworn to
by the accused himself containing the next issues: (a) A
narration of information to fulfill the court docket of his actual difficulties to
be bodily current in court docket for giving such solutions. (b) An
assurance that no prejudice can be precipitated to him, in any method,
by dishing out together with his private presence throughout such questioning.
(c) An endeavor that he wouldn’t elevate any grievance on that
rating at any stage of the case.”

18.
Refer to Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116

19.
(2020) 10 SCC 108

20.
Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC
2420

21.
Refer to Kalipado Gope v. State of Bihar, 1987 Cri LJ
1320

22.
Refer to Section 313(2) CrPC

23.
Refer to Section 313(3) CrPC.

24.
“No particular person accused of an offence shall be compelled to be
a witness in opposition to himself.”

25.
Rajkumar v. State of M.P., (2014) 5 SCC
353

26.
Mani Kumar Thapa v. State of Sikkim, (2002) 7 SCC
157 and Avtar Singh v. State of Punjab,
(2002) 7 SCC 419

27.
Refer to Emperor v. Ghura, AIR 1942 All
47

28.
Refer to Anthony D’Souza v. State of Karnataka,
(2003) 1 SCC 259

29.
Refer to Tanviben Pankajkumar Divetia v. State of
Gujarat, (1997) 7 SCC 156

30.
Mohan Singh v. Prem Singh, (2002) 10 SCC
236

31.
Refer to Bharsa v. State of U.P., 1986 All LJ
1163

32.
Refer to Reena Hazarika v. State of Assam, (2019) 13
SCC 289

33.
2021 SCC OnLine SC 404

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