Legal Provisions of Section 313 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Power to examine the accused:
The section is intended to establish a direct dialogue between the Court and the accused so as to give him an opportunity to give his explanation. The purpose of examination of the accused by the Court under this section is certainly not to cross- examine him or trapping him to make an admission of facts which the prosecution has failed to establish against him, but to afford him an opportunity of explaining the circumstances that appear to be against him in the evidence. For instance, if some articles are found and recovered from accused’s house, which points at his involvement in the crime, the Court should examine and give him an opportunity to explain how those articles happened to be present in his house.
ADVERTISEMENTS:
Section 313 consists of two clauses (a) and (b). Clause (a) gives discretion to the Court to question the accused at any stage of inquiry or trial without previously warning him whereas under clause (b), it is mandatory for the Court to-question the accused generally about the case after the prosecution witnesses have been examined and before he is called for his defence.
However, in a summons case, where the Court has dispensed with the personal attendance of the accused under Section 205 or 217 of the Code the Court has been given discretion under the proviso to Section 313 (1) to dispense with the examination of the accused under clause (b). Where the accused expressly commits that he would not complain about any prejudice on the ground of non-examination under Section 313, the Supreme Court held, his non-examination proper as it did not contravene the provisions of Section 313.
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The object underlying in Section 313 is to draw accused’s attention to every inculpatory material against him so as to enable him to explain it in his defence. This being a basic requirement of a fair trial, failure in this may gravely imperil the validity of the trial itself, if consequential miscarriage of justice or prejudice is proved.
ADVERTISEMENTS:
The Supreme Court has reiterated that where a circumstance against the accused is not put to him in his examination under Section 313, the prosecution cannot be permitted to rely on that circumstance in order to convict him, particularly after his acquittal by trial Court.
The accused is not bound to answer the questions and according to sub-section (3) he shall not render himself liable to punishment if he refuses to answer the questions put to him by the Court or gives false answers.
Nor is any oath to be administered to him. The reason being that under this section, he is not being examined as a witness. However, his answers may be put in evidence for or against him, in inquiry or trial for some other offence. For example, where in a murder case, the accused while being examined under
Section 313 answers that he concealed the dead body but did not kill the victim, this statement made by him may be used as evidence against him in a subsequent trial for in offence under Section 201 IPC.
ADVERTISEMENTS:
The object of Section 313 is not to nail the accused to any position but to comply with the most salutory principle of natural justice enshrined in the maxim audi alteram partem. Therefore, the examination under this section has to be of utmost fairness.
The Supreme Court in State of Punjab v. Naib Din, observed that “if any appellate Court or revisional Court comes across that the trial Court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means, the Court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is as vital as would affect the entire case, the appellate or revisional Court can endeavour to see whether it could be rectified.”
The Apex Court, in Avtar Singh v. State of Punjab, has once again reiterated that the object of examination of accused under Section 313 is to afford an opportunity to him to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods in the instant case.
The section aims at affording the accused a fair and proper opportunity of explaining circumstances which appear against him and the question- put to him must be fair and couched in a form which an ignorant or illiterate person may be able to appreciate and understand. The counsel of the accused need not be consulted by the Court on the nature and circumstances or type of questions to be put to the accused.
Even if there was any lacuna or defect in the examination of the accused under Section 313, it amounts to a mere irregularity and does not call for an interference with the order passed by the Court below especially when no objection on this ground was raised before the High Court.
The section does not require that the Court should record the questions put to the accused persons or his answer while examining him under Section 313. The provisions of this section equally apply to a trial before a Sessions Judge even when the accused has been examined on the case generally by the committing Magistrate. The recording of the statements made by the accused should, however, be in full details and no short-cut method be adopted in such recording of statements.
Where the accused on being questioned by the Court under Section 313 in general terms, prefers to leave his defence to his legal adviser by filing a written statement, instead of answering them himself, he may do so and the Court should accept the written statement so filed by an accused.
In General Vaidaya’s Murder case the accused, besides giving written confessional statements also admitted in their statements under Section 313, Cr PC that they were responsible for the murder of General Vaidya, it was held that the trial Court was justified in accepting and acting upon their plea of guilt and convicting them accordingly.
It has been well settled that where there is no mention of the person as accused by any of the prosecution witnesses, his statement under Section 313 cannot be acted upon or accepted as the very examination of the accused under this section was uncalled for as there was no circumstance against him to be explained by him.
As to the effect of error or omission in complying with the provisions contained in Section 313, the Courts have held time and again that the trial is not necessarily vitiated thereby unless prejudice has been or is likely to have been caused to the accused. They are mere irregularities which are curable under the Code.
In the case of Janak Yadav v. State of Orissa, the Supreme Court held that where additional evidence was taken under Section 391 after recording the statement of the accused under Section 313, it was certainly prejudicial to the accused as he did not get an opportunity to explain his position against the additional evidence. The Apex Court, therefore, ordered retrial from the stage of recording of statement under Section 313 of CrPC.
In a case of prosecution for causing death due to negligent driving, the accused scrambled into evidence of other witnesses and several distinct facts were mixed with each other. The accused was not given opportunity to explain the circumstances appearing against him and the absence of mechanical fault in vehicle was not put forth as a question to enable the accused to explain himself. It was held that such an examination was defective and prejudice was caused to the accused. Hence the matter was remanded back for fresh examination under Section 313 of the Code.
Since the statement of the accused under Section 313 is not substantive evidence, a conviction cannot be based on such examination alone. However, sub-section (4) does provide that such statement may be taken into consideration at the trial. In other words, the Court may seek assistance from the statement of the accused under Section 313 and consider it in conjunction with the evidence adduced by the prosecution.
The Supreme Court in Bishnu Prasad Sinha v. State of Assam reiterated that statements of accused made under Section 313, Cr. P.C. cannot be sole basis of conviction, but the effect thereof may be considered in the light of other evidences brought on record.
However, where the accused has made a voluntary confession under Section 164 and does not retract it until the stage of his own examination and the Court has no doubt about the truth and is satisfied that it is genuine, it would be admissible under Section 313 and the accused may be convicted on the basis of such confession.
The Supreme Court in State of Punjab v. Swaran Singh, has ruled that the acquittal of the accused merely on the ground that evidence of official witnesses was not specifically put to him under Section 313 was not proper and, therefore, was liable to be set aside.
The Supreme Court in State of Karnataka v. Anne Cauda, held that the examination of the accused under Section 313 of Cr. P. C. cannot be kept pending merely on the ground that charge-sheets against him have been filed for other offences as well.
In the instant case, the accused was charged for an offence under Section 18 of N.D.P.S. Act. He had completely admitted evidence of official witnesses as regards receipt of sample, sealing of same and sending to Chemical Analyst. The accused did not specifically cross-examine the official witnesses in respect of facts deposed by them.
Therefore, no prejudice was caused to the accused by not giving him an opportunity to answer specifically regarding evidence of official witnesses. As such, acquittal of the accused merely on the ground that evidence of official witnesses was not specifically put to them under Section 313, Cr. P.C. was not proper.
Omission to put incriminating circumstances such as contents of dying declaration to accused did not by itself vitiate the trial. It was for the accused to satisfy the Court that he had been prejudiced because of defect in procedure adopted. The acquittal of the accused was, therefore, not proper.
The case of Tripurari Mohan Prasad v. Union of India, was concerned with the Fodder Scam case. In this case, prayer was made for recording statement of accused persons in one case at the time of recording statement of accused persons in another case. No ground had been made out for amalgamation of cases at the stage when a number of witnesses have already been examined by the prosecution.
The appellants had also failed to suggest as to how they will be prejudiced if statement of accused persons under Section 313 were recorded separately in respective cases. Rejection of prayer for recording statement of accused persons under Section 313 was, therefore, proper and in accordance with the law.
With reference to the provisions of Section 313 of Cr. P. C. the Supreme Court in K. Anbajhgagan v. Superintendent of Policed held that exempting the accused from personal appearance before the Court during trial and permitting him to answers the questions on the question-answer form through his legal Counsel cannot be said to be proper procedure, especially when no special reasons were shown for doing so. The Court expressed surprise that even the Public Prosecutor did not raise any objection to this procedure.
However, the Apex Court in State of Punjab v. Hari Singh, observed that the word ‘shall’ used in Clause (b) to Section 313 (1) of Cr. P. C is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused.
But if it works to his great prejudice and disadvantage, the Court should in appropriate cases, e.g., if the accused satisfies the Court that he is unable to reach the venue of the Court, except by bearing huge expenditure or that he is unable to travel long distances due to physical incapacity or some other genuine hardship, relieve him of such hardship arid at the same time adopt a measure to comply with the requirements in Section 313 of Cr. P. C. in a substantial measure.
The Court has in an earlier case of Keya Mukherjee v. Magma Leasing Ltd., held that personal attendance of the accused may be dispensed with for his examination by the Court if it works hardship on him. The procedure to be followed for granting such exemption and answering questionnaire is elaborately laid down by the Supreme Court in this case.