“The act of examination of accused under section 313
Cr.P.C. is solemn act of a trial and should not be treated as an
empty formality¹.”

Possibly, one of the most underrated provisions under the Code
of Criminal Procedure, 1973 (“CrPC/
Code“) is encompassed under Section 313 thereof. This
provision, which is essentially meant to establish a direct
dialogue² between an accused and the Court
concerned in trial or inquiry proceedings, enables an accused to
provide explanation regarding the circumstances existing/ arising
against him. Unmistakably, Section 313 CrPC is a manifestation one
of the most sacrosanct principles of natural justice; audi
alteram partem³, curtailing all interferences at
that stage from counsel, prosecutors, witnesses, third parties,
etc. In this regard, the Hon’ble Apex Court in Raj
Kumar Singh v. State of Rajasthan⁴, appraising the
provisions under Section 313 CrPC, inter alia, observed,
“the purpose of examining the accused person under Section
313 CrPC is to meet the requirement of the principles of natural
justice i.e. audi alteram partem. This means that the accused may
be asked to furnish some explanation as regards the incriminating
circumstances associated with him, and the court must take note of
such explanation.” At the same time, the Indian Courts⁵ have
persistently avowed that the examination of an accused under
Section 313 CrPC is not a mere formality for the,
“[a]nswers given by the accused to the questions put to
him during such examination have a practical utility for criminal
courts.” Significantly, in this regard, the Hon’ble
Supreme Court in Janak Yadav v. State of
Bihar⁶, observed, “Section 313
CrPC prescribes a procedural safeguard for an accused facing the
trial to be granted an opportunity to explain the facts and
circumstances appearing against him in the prosecution’s
evidence. That opportunity is a valuable one and cannot be
ignored.” However, despite such assertions of law and its
explicit pre-eminence, Section 313 of CrPC, has, regrettably,
subsisted to be an uncelebrated and often, overlooked, statutory
provision. Unfortunately, the prevailing apathy towards the
importance of said provision and the manner of its compliance has,
at several occasions, resulted in grave prejudice to accused(s),
besides augmenting the time spent in criminal trial.

Section 313 CrPC envisages, broadly, two separate phases
wherein, “for the purpose of enabling the accused
personally to explain any circumstances appearing in the evidence
against him,” the Court is empowered/ mandated to pose
questions upon an accused. Significantly, as per Section 313(1)(a)
CrPC, the power of the Court to question an accused is
discretionary and may be exercised at any stage of trial/ inquiry,
“without previous warning the accused.” In
contrast, the examination of accused, generally on a case, in terms
of Section 313(1)(b) CrPC is envisioned to be not only mandatory in
nature, rather, required to be undertaken, “after the
witnesses for the prosecution have been examined and before he is
called on for his defence.” The Hon’ble Supreme Court
in Nar Singh v. State of Haryana⁷, while
dealing with the polarity in the said provisions/ clauses,
inter alia, observed, “[t]here are two kinds of
examination under Section 313 CrPC. The first under Section
313(1)(a) CrPC relates to any stage of the inquiry or trial; while
the second under Section 313(1)(b) CrPC takes place after the
prosecution witnesses are examined and before the accused is called
upon to enter upon his defence. The former is particular and
optional; but the latter is general and mandatory.”
Notably, despite the bifurcation of the said stages, Section 313
CrPC provides no limitation or embargo on the number of times,
which an accused may be called for examination/ questioning by
Court under the said provision. In this regard, the Hon’ble
High Court of Delhi in Ranjan Dwivedi v.
C.B.I.⁸, clarified, “it would be
idle to contend that Section 313(1)(b) deals only with one point in
time at the trial stage and the Court cannot call the accused to
answer the incriminating circumstances again.” The
Hon’ble Court further clarified that there is, “no
implied prohibition in calling upon the accused to again answer
questions”, provided that the same is not exercised,
“in a routine or mechanical manner.”
Understandably, the need for re-calling of an accused for
questioning under Section 313 CrPC becomes even more prudent/
incumbent⁹, in cases where fresh
incriminating materials are disclosed against such an accused
pursuant to re-examination of prosecution witnesses, induction of
new witnesses, etc.

Relevantly, the Code prescribes no particular format in which
the questions may be posed by the Court to an accused under Section
313 CrPC. However, it can be appreciated that under the garb of
cursory compliance of the provisions under the said section;
arbitrary, vague or complex questions cannot be posed to an
accused. In fact, it is trite law¹⁰ that asking of, “vague,
complex or compound questions will not be proper examination of the
accused under section 313 of Criminal Procedure Code.” At
the same time, Courts, while examining accused under Section 313
CrPC, are precluded from stringing together, long series of facts
and seeking an explanation/ reply from an accused regarding the
same. On the contrary, Courts¹¹ have recurrently clarified that
an accused must be questioned separately about each material
circumstance which is intended to be used against him. In this
regard, the Hon’ble Apex Court¹² has further asseverated,
“[t]he question must be framed in such a way as to enable
the accused to know what he is to explain, what are the
circumstances which are against him and for which an explanation is
needed… questions must be fair and must be couched in a form
which an ignorant or illiterate person will be able to appreciate
and understand. A conviction based on the accused’s failure to
explain what he was never asked to explain is bad in
law.” Simultaneously, the provisions under Section 313
CrPC make it abundantly clear that under the said provision,
questions may be posed to an accused by Court alone¹³,
though, as per sub-Section (5)¹⁴ thereof, Court may take
assistance of, “Prosecutor and Defence Counsel in
preparing relevant questions which are to be put to the accused and
the Court may permit filing of written statement[15] by the
accused as sufficient compliance of this section.”
Appositely, even prior to insertion of the said provision under the
Code, the Hon’ble Apex Court¹⁶, by a majority decision, ruled
that in appropriate cases¹⁷, upon the satisfaction of the
genuineness of the statement made by an accused in his application
and accompanying affidavit, it is, “open to the court to
supply the questionnaire to his advocate (containing the questions
which the court might put to him under Section 313 of the Code) and
fix the time within which the same has to be returned duly answered
by the accused together with a properly authenticated affidavit
that those answers were given by the accused
himself.”

Considerably, a perusal of the provisions under Section 313 CrPC
would manifestly demonstrate that the examination of an accused
under the said Section is obligatory and as a corollary, it is
quite understandable¹⁸ that the incriminating pieces of
evidence, not put to an accused cannot 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
under Section 313 CrPC cannot be used against him, and must be
excluded from consideration…. Importance of the questions put to
an accused are basic to the principles of natural justice as it
provides him the opportunity not only to furnish his defence, but
also to explain the incriminating circumstances against him. A
probable defence raised by an accused is sufficient to rebut the
accusation without the requirement of proof beyond reasonable
doubt.” However, notwithstanding the mandatory nature of
said provision, it is trite law that mere defective or improper
examination under Section 313 CrPC would be no ground for setting
aside the conviction of the accused, unless it has resulted in
prejudice to the accused. As per the Hon’ble Court²⁰,
“it would not be enough for the accused to show that he
has not been questioned or examined on a particular circumstance
but he must also show that such non-examination has actually and
materially prejudiced him and has resulted in failure of justice.
In other words in the event of any inadvertent omission on the part
of the court to question the accused on any incriminating
circumstance appearing against him the same cannot ipso facto
vitiate the trial unless it is shown that some prejudice was caused
to him.” Explicably, under such circumstances²¹,
“onus is upon the accused persons to prove that by reasons
of his not having been examined as required by S. 313 of the
Criminal P.C. he has been prejudiced.”

Appreciably, one of the staggering features of the provision
under Section 313 CrPC is that the said Section dispenses away with
the requirement of administering oath²² to an accused and
further provides that the accused²³, “shall not render
himself liable to punishment by refusing to answer such questions,
or by giving false answers to them.” Undoubtedly, an
accused’s right to remain silent under Section 313(3) of the
Code is in consonance with his right against self-incrimination as
enunciated under Article 20(3)²⁴ of the Constitution of India. At
the same time, protection is conferred to an accused person from
prosecution for perjury by reason of any false answers he may give
in response to his examination under the said provision. However,
under such circumstances, law is settled²⁵ that the Court,
“would be entitled to draw an inference, including such
adverse inference against the accused as may be permissible in
accordance with law.” It is, in fact, a settled law²⁶
that, though, silence and/ or failure of an accused to explain the
circumstances appearing in evidence against him may prove to be an
additional link in the chain of circumstances against him, however,
Courts must be cautious²⁷ of the fact that the,
“silence of the accused must never be allowed, to any
degree, to become a substitute for proof by the prosecution of its
case.” Similarly, though, false answers given by an
accused in his statement under Section 313 CrPC may offer an
additional link in the chain²⁸ of circumstances to complete the
chain, however, the law is well settled²⁹ that the,
“falsity of the defense cannot take the place of proof of
facts which the prosecution has to establish in order to
succeed.” Clearly, the statement of an accused under
Section 313 CrPC is not treated a substantive piece of evidence and
can be used only for appreciating/ to lend credence to the evidence
led by the prosecution. In fact, in this regard, the Hon’ble
Apex Court³⁰ has clarified, “[i]f
the prosecution evidence does not inspire confidence to sustain the
conviction of the accused, the inculpatory part of his statement
under Section 313 CrPC cannot be made the sole basis of his
conviction.” Notwithstanding the same, Courts must be
cautious of the fact that the statement of accused recorded under
Section 313 of the Code, “cannot be ignored lightly³¹
and has to be given due weight and adequate emphasis while
recording the guilt against him. Such a statement may not be
sacrosanct but certainly it deserves consideration.”

Conclusively, the significance of the provisions under Section
313 CrPC cannot be overemphasized. The said provision, is not
merely a part of audi alteram partem, rather³²,
“confers a valuable right upon an accused to establish his
innocence and can well be considered beyond a statutory right as a
constitutional right to a fair trial under Article 21 of the
Constitution, even if it is not to be considered as a piece of
substantive evidence, not being on oath under Section 313(2)
CrPC.” However, despite its importance being highlighted
by various Courts from time to time, the mandatory compliance of
the provisions under Section 313 CrPC unanimously by Court, has,
regrettably, remained to be an elusive aspiration. In fact, the
Hon’ble Apex Court in Satbir Singh v. State of
Haryana³³, while lamenting on the
Courts’ casual and cursory approach towards the compliance of
Section 313 CrPC, reiterated, “It ought to be noted that
the examination of an accused under Section 313, CrPC cannot be
treated as a mere procedural formality, as it based on the
fundamental principle of fairness. This aforesaid provision
incorporates the valuable principle of natural justice “audi
alteram partem” as it enables the accused to offer an
explanation for the incriminatory material appearing against him.
Therefore, it imposes an obligation on the court to question the
accused fairly, with care and caution.” Indisputably,
despite the copious perquisites and paramountcy of the provisions
under Section 313 CrPC, the said provision has, unfortunately,
persisted to remain shrouded under the veils of ignorance,
oversight and disdain. Appreciating the indispensability of the
said provision, it would not be a magnification to state that
Section 313 CrPC is an unsung hero of criminal jurisprudence,
meritorious and deserving of remission of its long lost dues by
Courts and criminal machinery, 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, meaning, “let the other side be heard as
well.”

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 is already exempted from
personally appearing in the court) makes an application to the
court praying that he may be allowed to answer the questions
without making his physical presence in court on account of
justifying exigency the court can pass appropriate orders thereon,
provided such application is accompanied by an affidavit sworn to
by the accused himself containing the following matters: (a) A
narration of facts to satisfy the court of his real difficulties to
be physically present in court for giving such answers. (b) An
assurance that no prejudice would be caused to him, in any manner,
by dispensing with his personal presence during such questioning.
(c) An undertaking that he would not raise any grievance on that
score 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 person accused of an offence shall be compelled to be
a witness against 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

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.