S.351 BNSS / S.313 Cr.P.C. POWER TO EXAMINE ACCUSED

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S.351 BNSS / S.313 Cr.P.C. Power to examine 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 defence, 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.

5. The Court may take help 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 by the accused as sufficient compliance of this section.

Q. Under Section 351 of Bhartiya Nagarik Suraksha Sanhita, 2023:

a. No oath shall be administered to the accused when he is examined.

b. The accused shall render himself liable to punishment by refusing to answer questions, or by giving false answers to them.

c. The answers given by the accused cannot be taken into consideration and put in evidence for or against him in any other inquiry/trial for any other offence.

d. Every error or omission in complying with Sec. 351 necessarily vitiates the trial.

Ans. (a)

Q. Under Section 351 BNSS, the statement of the accused has to be recorded:

a. on oath

b. without oath

c. on oath in warrant case

d. on oath in cognizable case

Ans. (b)

Q. When examined under Section 351 BNSS, a circumstance incriminating the accused is not put to the accused for the explanation. The said circumstances cannot be used against the accused because:

a. It is inadmissible in evidence

b. It becomes irrelevant for purposes of evidence

c. Law mandates that it cannot be taken into consideration

d. All of the above

Ans. (c)

NOTES

The importance of section 351 BNSS / 313 Cr.P.C. lies in the fact that it provides an opportunity for the accused to understand the circumstances appearing in evidence against him. It requires the courts to question the accused properly to make aware the accused in clear words the exact case that he will have to meet, and thereby an opportunity is given to the accused to explain any such point. This is of immense help to the accused person, particularly when he is undefended, poor, uneducated and helpless. This seeks to establish a direct dialogue between the court and the accused for the purpose of enabling the accused to give his explanation.

P. MURUGAN V. ETHIRAJAMMAL, 1973 CRI LJ 1256, 1257 (MAD).

The section is not intended to enable the court to cross-examine the accused for the purpose of trapping him or beguiling him into an admission of a fact which the prosecution has failed to establish.

EVIDENTIARY VALUE OF STATEMENTS RECORDED UNDER SECTION 351 BNSS / 313 CRPC

DEHAL SINGH V. STATE OF H.P.

The relative evidentiary value of statements recorded under Sections 315 CRPC and 313 CRPC came to be examined by the Supreme Court in Dehal Singh v. State of H.P. The statement made under Section 313 is recorded by the court without administering oath and the witness without being cross- examined. Naturally, it does not come under Section 3, Evidence Act as evidence. But, if an accused is examined under Section 315, the statement becomes relevant under Section 3 of that Act.'

SUB-SECTION (1) OF SECTION 351 BNSS / 313 CRPC

Sub-section (1) of Section 313 consists of two parts. Clause (a) gives discretion to the court to question the accused at any stage of an inquiry or trial without previously warning him. Clause (b) is mandatory and imposes upon the court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to his own words.

The words “ques­tion him generally” in Section 313(1)(b) (now 351(1) (b) BNSS) and “for the purpose of enabling the accused personally to explain any circumstances appearing in the evi­dence against him” in Section 313(1) are clearly intended to prevent unfair interrogation of the accused person.

RAJENDRA V. STATE OF RAJASTHAN, 1996 CRI LJ 340 (RAJ);

Inadequate examination may vitiate the proceedings.

The word “personally” in Sub Section (1) indicates clearly that for the purpose of Section 313 the court cannot examine the pleader on behalf of the accused person. Instead, written statements of the accused can be filed.

PROVISO TO CLAUSE (1)

Proviso to clause (1) is an exception to the mandatory provision of clause (b) to sub-section (1) by providing that in a summons case, where the court has dispensed with the personal attendance of the accused, the court gets a discretion to dispense with the examination of the accused person under clause (b) to sub-section (1).

SUB-SECTION (2)

Sub-section (2) provides that no oath is administered to the accused. The reason is that when he is examined under Section 351 BNSS / 313 CRPC, he is not a witness.

SUB-SECTION (3)

Sub-section (3) makes it clear that the accused is not bound to answer the questions, and he shall not render himself liable to punishment by refusing to answer the questions or by giving false answers to them.

SUB-SECTION (4)

Under sub­section (4), the answers given by the accused may be taken into considera­tion in the inquiry or trial. The answers may be put in evidence for or against him in other inquiries or trials for other offences. For instance, if in a trial for murder he says that he concealed the dead body and did not kill the victim his statement may be used as evidence against him in a sub­sequent trial for an offence under Section 201, Penal Code, i860 (IPC).

THE WORD “PERSONALLY” IN SECTION 351 BNSS / 313(1) CRPC

PRITISH NANDY V. STATE OF ORISSA, 1989 CRI LJ 2210 (ORI)

The word “personally” in Section 313(1) indicates clearly that for the purpose of Section 313 the court cannot examine the pleader on behalf of the accused person. Instead, written statements of the accused can be filed.

KEYA MUKHERJEE V. MAGMA LEASING LTD ((2008) 8 SCC 447)

The Supreme Court in the above case has ruled that an accused can the examined through his counsel provided the fol­lowing guidelines are followed:

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.

Upon being satisfied of the genuineness of the statements made by the accused the said application and 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.

He should affix his signature on all the sheets of the answered questionnaire.

However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of precaution the court may keep photocopy or carbon copy of the questionnaire before it is sup­plied to the accused for an answer).

If the accused fails to return the ques­tionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning.

WHETHER THE EXAMINATION OF THE ACCUSED U/S 313 (351 BNSS) WAS ESSENTIAL WHEN THE ATTENDANCE OF ACCUSED IS DISPENSED WITH BY THE COURT U/S 205(1) (228BNSS) AND SECTION 317 (355 BNSS) OF THE CODE

USHA K. PILLAI V. RAJ K. SRINIVAS (1993) 3 SCC 208: 1993 SCC (CRI) 824: 1993 CRI LJ 2669

The above question came before the Supreme Court in the above case. The court declared that in a warrant case (where the offence is punishable with death, impris­onment for life or imprisonment for a term exceeding two years) even if the court has dispensed with the personal attendance of the accused under Section 205(1) or Section 317, the court cannot dispense with the examination of the accused under clause (b) of Section 313 because such examination is mandatory.

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