“It is better that ten guilty persons escape than that one innocent suffer”
– Blackstone
The Indian Legal System revolves around the abovementioned legal maxim wherein an accused is not convicted unless the evidence against him is proved beyond reasonable doubt. An accused is given all sorts of rights and remedies to prove his innocence. One such provision is Section 313 of Code of Criminal Procedure, 1974.
As per Section 313 of the Code of Criminal Procedure, 1974,
“313. Power to examine the 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.”
Section 313 Cr.P.C. provides wide and ample powers to the Magistrate / Sessions Judge conducting the trial to ask any question at any time to the accused without giving him any warning / notice. Such ample and wide power is vested in the Court so that the accused is given an opportunity to explain the circumstances behind a particular event or against the evidence led by the prosecution which may incriminate him of the offence for which he is charged. Section 313 Cr.P.C. is an enabling provision vide which the accused is given a chance to lead his case personally before the Court so that in case he is not represented by a lawyer, he can state the facts before the Court. Furthermore, the rationale of having the abovementioned provision is that the Court can at any time ask for the version of the accused with regard to a particular averment / evidence being led by the prosecution. It is pertinent to note that the statement made by the accused under the abovementioned provision is not on oath and he is not compelled to do so. Further, the accused will not be punished if he refuses to reply to the question put by the Court or falsely replies to such questions. Since, the abovementioned provision is for the benefit and for safeguarding the interests of the accused, the said relaxation has been given to him so that he can explain the circumstances of the alleged crime without any fear.
The most important aspect of this particular provision is that the Court can ask the accused any question that it deems fit at any point of the trial or the inquiry. Therefore, the Court is not restricted in its power to ask any questions that it deems fit from the accused.
For example, if an article is recovered from the house of the accused which may have been used for a crime (eg. murder weapon), then the Court can ask the accused to explain under what circumstances was that particular article found in the possession of the accused. By questioning the accused, the Court can be apprised of the relevant facts which may be important to decide the guilt of the accused.
The Hon’ble Supreme Court of India in the case of Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702 has observed with respect to Section 313 Cr.P.C. that:
“…The purpose of asking questions during examination under Section 313 CrPC is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him. The accused may or may not avail the opportunity for offering his explanation…”
Further, the Hon’ble Supreme Court has observed in the case of Avtar Singh v. State of Punjab, (2002) 7 SCC 419, that, “The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him.”
The power of the Court to question the accused on any thing whatsoever is provided in Section 313(1)(a) Cr.P.C. and such power is a discretion of the Court i.e. it may or may not avail the power vested in it under this section. Section 313(1)(b) of the Cr.P.C. is however mandatory for the Courts to follow as a matter of procedure. Under this provision, the Court is mandated to (shall) question the accused generally on the case after the Prosecution Evidence has been completed and before the Defence Evidence has commenced.
Although it is mandatory for the Court to examine the accused under Section 313(1)(b) of the Cr.P.C. the trial and the outcome (judgment) of the trial is not vitiated on this ground alone that the examination of the accused was not done as per the abovementioned section. In the case of State (Delhi Administration) v. Dharampal, AIR 2001 SC 2924 the Hon’ble Supreme Court has observed as follows:
“Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him.”
As per various decisions of the Hon’ble Supreme Court of India, the questions that are asked from the accused should be simple and straightforward questions. The questions aren’t supposed to be vague and unclear. If the questions are vague and unclear, the statement under Section 313 will be considered to be wrongly recorded and prejudice will be caused against the accused. Therefore, it has been mandated that the questions are to be asked in a very simple language that the accused can simply understand.
The Hon’ble Supreme Court in the case of Ajmer Singh v. State of Punjab, (1953) SCR 418 has observed that
“…We are of the opinion that when the Sessions Judge is required by that section to make the examination of the accused, his duty is not discharged by merely reading over the questions and answers to the accused put in the committing magistrates court and by asking him whether he has to say anything about them. It is not, sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence, what he has to say about it. The accused must be, questioned separately about each material circumstance which is intended to be used against him. It was pointed out by this Court in Tara Singh v. The State that the whole object of the section, is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. …”
Further, the Supreme Court has observed in the case of Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502 that,
“…We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. …”
The Hon’ble Supreme Court has therefore mandated that the questions put to the accused should be simple, to the point and should be pertaining to each and every point of incriminating evidence found against him so that the accused can give specific answers in respect to each and every evidence / allegation put against him. Simply putting all the evidence in front of the accused in one go or asking the accused his views on the evidence produced by the prosecution is not sufficient and accordingly the Statement under Section 313 is not properly recorded.
The Hon’ble Supreme Court in the case of Ajai Singh v. State of Maharashtra, (2007) 12 SCC 341, has very lucidly observed pertaining to Section 313 Cr.P.C. that,
“12. The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The 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. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the 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. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
13. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.”
Therefore, the law on the point how the questions are to be put to the accused has been clearly settled by the Hon’ble Apex Court and the Trial Courts have to accordingly follow the said procedure while asking such questions to the accused.
There is also a proviso to the abovementioned Section wherein if in a summons case, the presence of the accused has been dispensed with, the Court may even dispense with the mandatory examination under Section 313(1)(b) Cr.P.C. and in this circumstance, the accused cannot challenge his non-examination under Section 313.
