Importance Of The Statement Of Accused Under Section 313 Of The CrPC – A View From The Eyes Of A Defence Counsel

This article is being written with the purpose of highlighting the importance of the stage of the Statement Accused during the course of a Criminal Trial. The article shall begin by placing the stage of the Statement of Accused in a chronological context of the Criminal Trial. Subsequently, the article shall reproduce and dissect the provision threadbare to explain the key legislative features of the same. Lastly, the article shall highlight the important judicial pronouncements of the Hon`ble Supreme Court / High Court on this Section which has a day to day bearing in the interpretation and applicability of this Section. A typical Criminal Investigation is commenced with the lodging of the First Information Report (FIR) under Section 154 of the Code of Criminal Procedure, 1908 (CrPC). An Investigating Officer is deputed by the Police Station at which the FIR is lodged. The Investigating Officer conducts the investigation during the course of which he / she collects statements of material witnesses, incriminating material etc. and inevitably in most cases files a Charge sheet before a competent Court of Law under Section 173(8) of the CrPC. This Charge sheet is taken Cognizance upon by a competent Magistrate having appropriate territorial jurisdiction under Section 190 (b) of the CrPC. The criminal proceedings post taking of cognizance is then tried by the Magistrate or committed to a competent Sessions Court depending on the nature of the offence. The Charge is framed by the concerned Court and trial is commenced. The Prosecution Evidence is led by the Prosecutor during which all the material witnesses are introduced, examined in chief, cross examined etc. and discharged. The Prosecution exhibits material documents and seized material during the Prosecution evidence. It is at this stage that the application of Section 313 of the CrPC comes into play. It will be apposite for me to reproduce the bare text of the Section here to explain the legislative text of this section:

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 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 question, 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 had committed.
(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.

A bare reading of Section 313(1)(b) as mentioned above shall highlight the mandate of law that the accused person is to be examined by the Trial Court for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. This stage “shall” come after the witnesses for the prosecution have been examined and before the accused is called on for his defence evidence. Both the text of the section and practice of Criminal Law confirms that the statement of the accused is taken post the recording of the entire Prosecution Evidence. This enables the Trial Court to put all the incriminating material before the accused person (usually by way of detailed questions prepared by the Trial Court) and seek his explanation and answers on the same.

The Supreme Court in Tara Singh v. State (AIR 1951 SC 441) held that the Trial Court has the duty to state all the circumstances and evidence against the accused under Section 342 (corresponding provision in the Code of Criminal Procedure, 1898) for enabling the accused to explain such circumstances and evidence. The Court further held that that if the accused has given reasonable explanations, the same must be taken into consideration by the Trial Court- the failure of which would constitute a grave defect in the judgment. In Hate Singh v. State of Madhya Bharat, the Court observed, “The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state on his own way in the witness box [and that] they have to be received in evidence and treated as evidence and be duly considered at the trial.” In Shivaji Sahabrao Bobade v. State of Maharashtra, the Court reiterated that every inculpatory evidentiary material must be put to the accused for his explanation, and “the court must ordinarily eschew such material from consideration” which has not been put to the accused. The Court further held an omission to put such material to the accused does not ipso facto vitiate the proceedings unless the accused is able to establish that he has been prejudiced by such omission. Similar conclusion was drawn by the Court in S. Harnam Singh v. State (Delhi Admin) in which it was also observed that if an irregularity under Section 342 does not occasion a failure of justice, the same is curable.

The Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra transported the principle circumstances which are not put to the accused under Section 342 of the Code of Criminal Procedure, 1898 cannot be taken into consideration by the Court- to Section 313 of the Code of Criminal Procedure 1973. The erudite observation of the Court in Ajay Singh v. State of Maharashtra needs to reproduced, as follows:

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
.

The above reproduced observation was followed and quoted with approval in Shaikh Maqsood v. State of Maharashtra and Ranvir Yadav v. State of Bihar. Further, in Asraf Ali v. State of Assam, it was observed that the main object of Section 313 is to establish a direct dialogue between the Court and the accused. In Sujit Biswas v. State of Assam, the Court observed that Section 313 is founded on one of the principles of natural justice i.e. audi alteram partem. The Court also observed that Section 313 is of heightened relevance in a case circumstantial evidence so as to establish if the chain of circumstances is complete or not. It was further observed that the statement under Section 313 “cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” Even recently in Samuel Hasque v. State of Assam, the Court observed, “It is trite to say that…the incriminating material is to be put to the accused so the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem.”

Interestingly, Section 313(2) also very clearly prescribes that no oath shall be examined to the accused person when he / she is being examined under Section 313(1) by the Court. This provision is clearly by way of abundant caution in order to fulfil the fundamental right enshrined under Article 20(3) of the Constitution of India. Some of the instances in which this clause has been interpreted is as follows

As a matter of defence strategy, in my opinion, it is best to answer specifically as many questions as maybe possible under Section 313 of the CrPC. Needless to mention that the accused does have a right to remain silent and hence, he or she can simply deny or leave unexplained any particular question raised under Section 313 of the CrPC. However, this option of avoiding or remaining silent on a specific assertion / material put forth before the accused should be exercised most sparingly. It is trite that non answering or evading incriminating material put under Section 313 of the CrPC would only lead to an adverse inference drawn by the Court during the course of the final arguments. Being situated in Delhi, I have had the good fortune of conducting both criminal trials at Trial Courts and arguing appeals before the Supreme Court. On many occasions while watching appellate proceedings in post leave matters at the Supreme Court, I have observed that their honors lay a lot of emphasis on what has been said by the accused in the statement under Section 313. Infact, without naming a particular Chief Justice of India, I distinctly remember that given the paucity of time he and his bench had, the Court was simply dismissing or allowing appeals against convictions by asking the counsel as to what was said by
the accused under his Section 313 statement.

Therefore, as defense counsels, we should all be very careful in conducting this stage of our trial. If our client is custody then it would be advisable to meet him / her and explain him / her about the process and the possible questions which would be ask from him / her during the statement under this Section. The amended Section 313(5) also now allows for the filing of a Written Statement before the court under this Section. However, in practice, it is best to simply follow what the judges want you to do and if the judge is insisting on an oral statement under this section (which most judges do) then it is best oblige them.

There would be many criminal trials which would be won or lost on the basis of how well could the accused defend against the incriminating material in his / her statement under Section 313. Hence, as defence counsels, it becomes our primary duty to ensure that the preparation of the accused is comprehensive before the date of hearing on which the statement of the accused is to be recorded.

Mr. Roshan Santhalia

Advocate On Record, Supreme Court of India

Author is member of the editorial board of Indique Law Journal

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