The Section 313 CrPC - An epitome of fairness but missed by trial courts

The section 313 CrPC reads as under

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.

The Hon Apex Court  in Raj Kumar Singh @ Raju @ Batya vs State Of Rajasthan on 6 May, 2013, has observed as under after an extensive deliberation on the S.313 CrPC..

Para #31

The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law.

Para # 25

In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.

Para # 26

if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.

Unfortunately the Hon Apex Court did not enlighten beyond this, that is what would be the fate of trial, if  if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged.

The natural conclusion is that the trial court must acquit the accused under S.255 CrPC without even asking the accused to start his defense.

But nonetheless this observation of the Hon Apex Court casts a duty on the trial magistrate to do following things at the conclusion of  prosecution case, that is after the cross examination of all the prosecution witness and before the accused can be called for his defense.

1. Giving the opportunity to accused to question the admissibility of the evidence of prosecution witness.

2. Giving the opportunity to accused to seek impeachment of any prosecution witness under S.155 of The Indian Evidence Act or move application under S.340 CrPC for perjury.

3. Clearly identify the admissible and inadmissible evidence.

4. Clearly identify the facts proved or not proved by the prosecution.

5. Clearly assess if there is any presumption to be granted to the prosecution against the accused.

6. Identify and record the circumstances and evidence appearing against the accused.

The above exercise is very logical and required under the law because the trial court can only question the accused on proven circumstances or on proven evidence. If the admissibility of the evidence is not decided or the impeachment aspect of the witness (on the application of accused) is not decided at this stage, then there is a big danger that what ever being asked to the accused could be based on inadmissible evidence or based on the evidence of a witness who may be impeached or punished under perjury.

 But in practice what the trial court does is:

1. Admissibility of the evidence is stalled till the time of final judgement.

2. Extreme reluctance of the trial courts or even of counsels to get into S.340 CrPC.

3. Low awareness about S.155 of The Indian Evidence Act on the defense side, and thus falsehood gets propagated or left to the discretion of Ld Magistrate only.

4. Absolutely mechanised way of questioning.

The CrPC mandates and binds the trial court to look into the prosecution case in totality (The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration).

Conclusion

If the S.313 CrPC is taken in the right spirit and as per the mandate of the law, then many cases would get decided at the threshold of S.313 CrPC itself. This will declog the judiciary and subsequent proceedings which otherwise would be an abuse of process of law, will abate. Moreover, the accused will have a clear and lawful point of view from the court’s perspective, about the facts which are appearing against him and for which he is required to defend, It will instill a lawful fear in the minds of prosecution witness that they are required to speak the truth and only the truth, as the veracity of their evidence shall be specifically taken up under S.155 of The Indian Evidence Act and under S.340 CrPC.  Above all there is no discretion with the trial courts to violate this!!

The Author can be contacted at advocate.dma@gmail.com or extreme-analysis.blogspot.in.