This Article is submitted by –
- H.S.Randhawa
Rationale and Object
Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. It is for the said reason that for every Judge holding a criminal trial between `may be true’ and `must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence and in this long journey which a trial judge has to undertake an important tool which ensures his safe travel is that of Section 313 of the Code of Criminal Procedure,1973 ( i.e. Cr.P.C). That is so said because the said section lays down a platform establishing a direct dialogue between the accused and the court,by putting all pieces of incriminating evidence against the accused before him and providing a platform for the accused to bring forth an explanation according to which the court can also test the veracity of the Prosecution’s case. Thus where for a Judge it is his principal tool on the other hand equally for an accused facing a criminal trial , it acts as an escutcheon which enables him to guard himself .It for the same reason that the Hon’ble Supreme Court of India has best described the object of examination of an accused under Section 313 Cr.P.C. in the celebrated Judgment of Jai Dev v. State of Punjab (AIR1963 SC 612) that the section itself declares its object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”.
Origin
Section 313 Cr.P.C. finds its origin from the principle of natural justice- audi alteram partem (i.e. no one should be left unheard), which has always been recognised as the fundamental principle of natural justice therefore the same was incorporated in the old code from the very inception and existed as section 342 in the old code. The present section as it exists today has flown from the said section 342 of the old code only with the sole modification as was found necessary on the recommendation of the report of the Law Commission, which was to the effect that:
(i) in summons cases where the personal attendance of the accused has been dispensed with, either under section 205 or under section 540-A the court should have a power to dispense with his examination; and
(ii) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally,
but it would be pertinent to add that only clause(i) has been incorporated in the present code as proviso to section 313(1) and the same shall be explained in detail in the latter part of the article.
Importance of the instant section
The importance of the section 313 Cr.P.C. has been best described by the Hon’ble Apex Court in the recent judgment of Reena Hazarika v. State of Assam, SCC Online SCC 2281, wherein it has held that ‘section 313 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’. Thus the Apex Court has elevated the said section from being a statutory right to a fundamental right and has further gone onto add that ‘If the accused takes a defence after the prosecution evidence is closed, under Section 313 (1)(b) the Court is duty bound under Section 313(4) to consider the same’
Further importance of the said section can be discerned from another judgment of the Hon’ble Apex Court in Raj Kumar Singh @Raju vs State of Rajasthan, AIR 2013 SC 3150 , wherein it has been held that a piece of evidence that has not been put to the accused under section 313 Cr.P.C. that said piece of evidence can’t be used against accused.
The natural corollary of the combined reading of both the above judgments would showcase that proper recording of the statement with each piece of evidence has to be put to the accused at the time of recording of his statement under section 313 Cr.P.C. as the same has been now recognised as a fundamental right and a further duty has been caste upon the trial courts to ensure that if a defence has been taken by the accused in such statement it is the bound down duty of the court to consider the same.
The present section along with the elucidation of the same as enumerated by the Hon’ble Supreme Court of India and the various High Court’s.
“Section 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 defense, 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).
In State of Kerala v. Rajappan Nayar; 1987 Cr. L. J. 1256it has been held that examination of the accused under clause (1)(a) is optional and discretionary. However, clause (1)(b) is mandatory.
Further in Ajai Singh v. State of Maharashtra; AIR 2007 SC 2188 it has been observed that under Section 313(1)(b) the court shall be responsible to present all evidence before the accused which appears incriminating against him and accordingly reply will be sought thereto.
The combined reading of section 313(1)(a) and 313(1)(b) would present that the court has the option to call the accused for his examination more than once. Therefore the question would arise if the accused would be called again and again wouldn’t it defeat the very object of the said section and secondly delay the trial, which would be against the right of speedy trial as enshrined under Article 21 ? The said question has been answered in the judgement of Rajan Dwivedi v. CBI; 2008 Cri.L.J.; 1440 (1447) DEL) , wherein it has been held that if the court has already conducted an examination of the accused, the court has the power to call the accused again to the court for examination and to answer before the court. However, it is stated that after the conclusion of the prosecution’s case, the power of calling on an accused more than once should not be used in a routine or mechanical manner. But at the same time it has been clarified that if fresh witnesses are examined after the examination of the accused, it is obligatory to further examine the accused under section 313, Cr.P.C.
Further the perusal of the proviso as attached with the section 313(1)(a) would showcase that though in a summons case examination under the said section can be dispensed with, but the question would arise can the same be done in a warrants case ? The said question has been answered in the judgment of Basavaraj R. Patil v. State of Collector; AIR 2000 SC 3214wherein the 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.For this purpose, the accused has to file with the court an affidavit sworn-in by himself that he may be allowed to answer the questions without physical presence in the court due to justifiable reasons. It must also contain narration of the situations of hardship and large expenses making personal presence in the court difficult and that no prejudice will be caused by dispensing with his personal presence with an undertaking that the accused will not take any grievance on that accord at any stage of the case. It is also observed that the section does not envisage the examination of the Counsel on behalf of the accused.
Section 313(2) No oath shall be administered to the accused when he is examined under sub-section (1).
Regarding sub section(2) it has been observed in the case of Dehal Singh v. State of Himachal Pradesh; AIR 2010 SC 3594, that the statement of the accused under section 313, Cr.P.C. is recorded without administering oath. Therefore, it cannot be treated as evidence within the meaning of section 3 of the Evidence Act, 1872.
Section 313(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
As regards sub section(3) in Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150, the court held that the accused has a duty to furnish an explanation in his statements under section 313, Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under section 313, Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.
Section 313(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.
In relation to sub section(4) in Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507it has been held that the courts may rely upon the explanation provided by the accused but may find him guilty for an offence based on some other evidence provided to the court led by the prosecution. However, such consideration should not be seen in isolation but in conjunction with the prosecution’s evidence., i.e. in other words conviction cannot be made solely based on explanations provided before the court by the accused.
Further it is also pertinent to add that in Randhir Singh v. State; 1980 Cri.L.J. 1397 it has been duly observed that the statement of co-accused under section 313, Cr.P.C. cannot be used against main accused for obvious reason that the accused has no opportunity to cross examine the co-accused. But the answers given by the accused may be put in evidence for or against him in any other inquiry or trial. Similarly the statement of the accused made on his behalf by his Counsel in the bail application or any other petition related to the same case cannot be read as his admission as it was not put to the accused in his statement under section 313, Cr.P.C.
Section 313(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.
The said sub section has been inserted vide clause 22 of the Amendment act,2008, with the very object to eliminate the delay in trials.
In context to sub section 5 it was duly observed in United Phosphorous vs Sunita Narain and another, CRL.M.C.2116/2010 that Sub-Section (5) is a further statutory recognition and an extension to the right of the accused to file a written statement as already permitted under sections 233(2) and 243(1) Cr.P.C. and resultantly further recognised that there is no bar in the said written statements being filed on the basis of legal advice.
Kosher Methodology of Recording Statement under Section 313 Cr.P.C.
The questioning must be fair and framed in a form which an ignorant and illiterate person may be able to appreciate and understand. Even if the accused is not illiterate, his mind is apt to be perturbed when he is facing a trial of murder. Therefore, it is required that each material circumstance should be put simply and separately in a way that an illiterate person can appreciate and understand. The same was observed in the celebrated judgment of Tara Singh v. State of Punjab; AIR 1951 SC 44.
Adding to that in Kalpnath Rai v. State; AIR 1998 SC 201 while further crystallising the mode of operation on the canvass of section 313 Cr.P.C.it was mentioned that while recording the statement under section 313 Cr.P.C. it is imperative that each and every question must be put to the accused separately and their answers must also be recorded separately.
Lastly in State of Maharashtra v. Goraksha Ambaji Adsul; 2006 Cri.L.J. (NOC) 45 it was duly observed that in a case of multiple accused statement of each accused must be separately recorded under section 313 and accordingly separate set of questions must be put to them ,otherwise putting same set of questions to all the accused may cause prejudice to the accused.
Conclusion
A criminal trial is not a fairy tale wherein one is free to give flight to one’s imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. Thus this is wherein Section 313 Cr.P.C. comes into play as an aid to the judge to enter into a dialogue with the accused and take his response to each piece of evidence as lead by the prosecution against him , while observing his demeanour, accordingly enabling the judge to safely arrive at his final decision while separating the grain from the shaft. Where the said provision is an indispensable tool of the judge at the same point it has also to be borne in mind that this provision is equally significant for the accused as it gives him the clear opportunity to retort to each piece of evidence presented against him and in furtherance lay out his version/defence of the story. But sadly more often than not it is observed that the said section is not pressed into service meticulously and in its letter and spirit rather is carried out as an empty formality. Thus as a sequel to the above it can well be crystallised that it is the need of the hour that the trial courts undertake with outmost sincerity their bounden duty as caste upon them under the law and more importantly undertake to apprise the accused about the significance of his examination at the very onset especially considering the very fact that the very examination under this section has been recognised by the Hon’ble Supreme Court as the fundamental right to fair trial under Article 21 of the Constitution of India as discussed above.
“The views of the authors are personal“
