India: Section 313 Of The Code Of Criminal Procedure, 1973: An Unsung Hero Of Criminal Jurisprudence

"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

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