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Right of the accused under section 313 Cr.P.C.: A critical appraisal 

*Sehajpreet Kaur Batth

This provision is based on the principle “audi alterem partem” which means no one should be left unheard. Its gives an opportunity to the accused to represent himself and gives him a chance to justify the evidences put forth against him. In the case of Paramjeet singh v. state of uttrakhand1, Hon'ble court held that, the intention if the accused must be brought forward in relation to evidences which are against him, so he can offer explanation against such evidences. So, the court is under legal obligation to bring towards his notice such evidences, and evidences not produced shouldn't be considered.

This provision enshrines one of the basic principles of fair trial but is ironically, prone to getting ignored during a trial. This could be blamed at the leniency of this provision as it relies on the discretion of the court. In the case of Sanatan Naskar & Anr. v. State of West Bengal2, Hon'ble court held that, 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.

The provisions and the precedents layed down by the court regarding this section are as follows:

Section 313(1) states that,

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).”

 

Thus, this provision talks about two kinds of situations-

First, where, at any stage, the court may exercise its discretion, and examine the accused without any prior warning.

Second, the mandatory provision where the court is bound to examine the accused at the end of the presecutions witness and before the defence is taken up by the accused.

It is further 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). However, an exception was highlighted in the case of Basavaraj R. Patil v. State of Collector3. The Hon'ble 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. The accused may justify such reasons in an affidavit.

 

It may be noted that there is no limit to how many times the court exercises this power. The court may question the accused as many times as the need arises, for instance, in case fresh evidence against accused is discovered. Hon'ble High Court of Delhi in Ranjan Dwivedi v. C.B.I.4, 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."

Regarding questions to be asked:

      Incriminating in nature: The court must ensure that the accused must be questioned separately about each material circumstance which is intended to be used against him.

Further, Hon'ble Apex Court in Maheshwar Tigga v. State of Jharkhand5 observed that, "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."

      Must not be vague or arbitrary: in case of Tara Singh v. State of Punjab6, Hon'ble court held that, 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.

      Court may take help of the public prosecutor and the defense counsel in framing the questions as provided under sub section (5) if section 313.

Regarding the statement of the accused:

      Such statements can be submitted in written form as per the directions of the court.

      Liability for punishment: upholding the right against self incrimination which is enunciated under Article 20(3) of the Constitution of India, section 313(4) provides that, if the accused refuses to give the statement or gives a false statement,

-         The accused won’t be liable for any punishment

-         No adverse inference can be drawn against him

In cases such as Mani Kumar Thapa v. State of Sikkim7, and Avtar Singh v. State of Punjab8, it has been established that, such silence or falsity of statement may offer as an additional link to the chain, however it cannot take the place of proof of facts which the prosecution has to establish in order to succeed.

Effect of the section:

      Evidentiary value: according to section 313(2), the statements of the accused are not recorded on oath. Moreover, there is no cross examination done on it. Due to these reasons, the statement of an accused under Section 313 CrPC is not treated a substantive piece of evidence.

      Cannot be sole basis of conviction: In the case of Mohan Singh v. Prem Singh9, Hon'ble Apex Court has clarified, "if 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."

      Curable defect: In the case of Suresh Chandra Bahri v. State of Bihar10, the Hon'ble Court observed that, "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." 

Importance of this section:

In the case of Satbir singh v. State of Harayana11, the bench comprising of CJI NV Ramana and Justice Aniruddha Bose discussed the importance of this section and observed as follows:

“It is a matter of grave concern that, often, Trial Courts record the statement of an accused under Section 313CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This 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 part of the Court to question the accused fairly, with care and caution. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304B, IPC read with Section 113B, Evidence Act.”

 

Conclusion:

In the case of Naval Kishore v. State of Bihar, Hon'ble court held that, 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. 

we may conclude that, the objectives of this section are as follows:

        To establish direct dialogue between court and the accused

        Find out the truth behind the circumstances of the procecutions evidence

        Administer fair trial by making sure that the accused is given all due opportunities to be heard.

Hon'ble Supreme Court in the case of Janak Yadav v. State of Bihar, 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."

References:

1.     AIR 2011 SC 200

2.     AIR 2010 SC 3507

3.     AIR 2000 SC 3214

4.     (2008) 146 DLT 684

5.     (2020) 10 SCC 108

6.     AIR 1951 SC 44 (upheld in P. Bind and anr. V. State of Bihar)

7.     (2002) 7 SCC 157

8.     (2002) 7 SCC 419

9.     (2002) 10 SCC 236

10.   AIR 1994 SC 2420

11.   2021 SCC OnLine SC 404

12.  (2004) 7 SCC 502)

 

*Student of LL.B (final year),Department of Laws, Panjab University

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