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