Examination of Accused (Section 313 CrPC / Section 351 BNSS) — Procedure

After the prosecution has marched its witnesses through the box and the documents are exhibited, the criminal trial pauses for a singular ritual: the court turns to the accused and asks him, in his own person and without oath, to explain the evidence gathered against him. That ritual is governed by Section 313 of the Code of Criminal Procedure, 1973, now re-enacted as Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It is neither a deposition nor a confession-taking exercise; it is the statutory embodiment of audi alteram partem in the trial process. This chapter sets out the exact procedure courts must follow, the difference between the discretionary and the mandatory limb of the provision, the evidentiary status of the answers, and the body of Supreme Court doctrine on when an omission vitiates the trial.

The statutory text: Section 313 CrPC and Section 351 BNSS

Section 313(1) of the 1973 Code provides that 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; and (b) shall, after the witnesses for the prosecution have been examined and before the accused is called on for his defence, question him generally on the case. A proviso added by the Code of Criminal Procedure (Amendment) Act, 2008 (w.e.f. 2009) permits the court, in a summons-case where it has dispensed with the personal attendance of the accused, to also dispense with his examination under clause (b).

Sub-section (2) directs that no oath shall be administered to the accused when examined under sub-section (1). Sub-section (3) protects him: he renders himself liable to no punishment by refusing to answer or by giving false answers. Sub-section (4) makes the answers usable — they may be taken into consideration in the inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which the answers may tend to show he has committed. Sub-section (5), inserted in 2009, allows the court to take the help of the Prosecutor and the defence counsel in preparing the relevant questions, and to permit the filing of a written statement by the accused as sufficient compliance with the section.

The Bharatiya Nagarik Suraksha Sanhita, 2023 reproduces this scheme almost verbatim as Section 351, retaining all five sub-divisions including the no-oath rule, the immunity from punishment, the usability of answers, and the 2009 reforms on Prosecutor/counsel assistance and written statements. The numbering changes; the doctrine does not. Every authority decided under Section 342 of the 1898 Code and Section 313 of the 1973 Code therefore continues to govern Section 351 BNSS. Place this provision within the wider scheme by reading our introduction to the Criminal Rules of Practice and the hub on Criminal Rules of Practice notes.

Purpose: audi alteram partem, not a trap

The animating purpose of the examination is to give the accused a fair and effective opportunity to explain the incriminating material before the court acts upon it. In Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468, the Supreme Court explained that the statement of the accused recorded under the predecessor Section 342 takes the place, in India, of what an accused in England or America would be free to state in his own way from the witness-box. It is the accused's own account, untrammelled by oath and immune from perjury, of the prosecution narrative.

The provision is a facet of natural justice. As the Court reiterated in Sujit Biswas v. State of Assam, (2013) 12 SCC 406, the object of examining the accused under Section 313 is to meet the requirement of audi alteram partem — to afford the accused a chance to furnish an explanation for the circumstances appearing against him, with a corresponding duty on the court to take note of that explanation. Equally settled, since State of Maharashtra v. Sukhdeo Singh, (1992) 3 SCC 700, is the negative proposition: the questioning is not an instrument to build the case against the accused or to fill lacunae in the prosecution evidence. The section is meant for the benefit of the accused, not as a device to nail him to his own words — a point underscored in Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740, where the Court described Section 313 as intended for the accused's benefit and not to his disadvantage.

The two limbs: discretionary clause (a) and mandatory clause (b)

Section 313(1) houses two distinct powers. Clause (a) is discretionary: at any stage of the inquiry or trial the court may, without prior warning, put questions to the accused on points it considers necessary. This limb is typically invoked mid-trial when a particular witness throws up an incriminating circumstance the court wishes to clarify at once.

Clause (b) is mandatory and time-bound: after the prosecution witnesses are examined and before the accused is called on for his defence, the court must question him generally on the case. In Nar Singh v. State of Haryana, (2015) 1 SCC 496, the Supreme Court drew this line sharply — the clause (a) examination is optional and may take place at any stage, while the clause (b) examination is a mandatory obligation cast on the court, to be discharged at the prescribed point in the trial. The word “generally” in clause (b) does not license vagueness; as developed below, each material incriminating circumstance must be specifically put. The only statutory escape from clause (b) is the 2009 proviso for summons-cases where personal attendance has been dispensed with. Compare the timing of this step with the close of prosecution evidence discussed in our note on recording of evidence in criminal trials.

No oath, no perjury, no compulsion to answer

Three protections set the examination apart from witness testimony. First, under sub-section (2) no oath is administered — the accused does not testify as a witness and is not subject to cross-examination on his answers. Second, sub-section (3) guarantees that he incurs no liability to punishment by declining to answer or by answering falsely; there is no offence of perjury attaching to a Section 313 statement. Third, the examination is harmonised with the constitutional shield in Article 20(3) against testimonial compulsion: because the accused is not on oath and may remain silent without penalty, the section does not offend the privilege against self-incrimination.

The practical corollary is that the court must draw no adverse inference merely from a refusal to answer, though a false or evasive explanation may, in an appropriate case where the prosecution has established a strong chain of circumstances, supply an additional link — a theme returned to in the discussion of evidentiary value below.

Procedure: every incriminating circumstance must be put separately

The cardinal rule of procedure is specificity. It is not enough to read over the committal statements and ask whether they are correct, nor to put one omnibus question. In Tara Singh v. State, AIR 1951 SC 441, the Court held that it is not proper compliance with the section to read out a long string of questions and answers from the committal court and ask the accused whether the statement is correct; the accused must be questioned separately about each material circumstance intended to be used against him, and given an opportunity to explain it. That principle has governed practice for over seventy years.

In Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, the Supreme Court restated the proper methodology: the court must invite the accused's attention to each circumstance and item of substantial evidence relating to the offence charged, and invite his explanation. The questions must be framed in simple, intelligible language, broken down so that an unrepresented or illiterate accused can grasp and answer them. The 2009 reforms reinforce this: sub-section (5) lets the court enlist the Prosecutor and defence counsel to help frame the questions, precisely so that no material circumstance is omitted and none is put in an oppressive or compound form. The questioning must remain neutral; the court is recording an explanation, not extracting an admission.

Circumstances not put to the accused must be eschewed

The most consequential consequence flows from a single rule: any incriminating circumstance not put to the accused under Section 313 cannot be used against him. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, the Court held that a circumstance in respect of which the accused has not been examined under Section 313 cannot be pressed into service, because he had no opportunity to explain it. The principle is one of exclusion: the offending material is taken out of the reckoning altogether.

This was applied with rigour in Samsul Haque v. State of Assam, (2019) 18 SCC 161, where the Supreme Court reiterated that incriminating material not put to the accused during his Section 313 examination must be completely excluded from consideration, since the accused had no chance to explain it. The duty therefore runs both ways — the court must put every incriminating circumstance, and an appellate court must discard from its assessment any circumstance the trial court failed to put. Where, after excision of the unput material, the residue of legal evidence still establishes guilt beyond reasonable doubt, the conviction survives; where it does not, the conviction falls.

Evidentiary value: a statement, not substantive evidence

The answers occupy a peculiar evidentiary niche. They are not substantive evidence. Because the accused is not on oath and cannot be cross-examined on his answers, the statement does not amount to “evidence” within the meaning of Section 3 of the Evidence Act, 1872 (now Section 2 of the Bharatiya Sakshya Adhiniyam, 2023) — a proposition affirmed in Sujit Biswas v. State of Assam, (2013) 12 SCC 406. Consequently the statement cannot, by itself, form the sole foundation of a conviction.

In State of Maharashtra v. Sukhdeo Singh, (1992) 3 SCC 700, the Court held that even an admission of guilt in a Section 313 statement cannot be the sole basis of conviction and cannot be used to fill gaps in the prosecution case; where the prosecution evidence does not independently inspire confidence, the incriminating portion of the statement cannot alone sustain a conviction. Yet the statement is not worthless. Under sub-section (4) the answers “may be taken into consideration,” and the courts have long held that the explanation of the accused forms part of the material the court must weigh. The settled rule is one of corroboration and assistance: a false or unconvincing explanation, when set against a prosecution case otherwise complete, can be treated as an additional incriminating link — but only after the prosecution has discharged its primary burden. The accused's exculpatory plea, conversely, need not be proved beyond reasonable doubt; Reena Hazarika v. State of Assam, (2019) 13 SCC 289, confirms it need be established only on a preponderance of probabilities.

The court's duty to consider the accused's explanation

Section 313 is not a one-way street. Sub-section (4) makes the answers part of the record, and the court is duty-bound to apply its mind to them. In Reena Hazarika v. State of Assam, (2019) 13 SCC 289, the Supreme Court held that a solemn duty is cast on the court to consider the defence taken under Section 313 and to either accept or reject it for reasons recorded in writing; a total failure to consider the defence may, on the facts, vitiate the conviction. The provision, the Court stressed, is not a mere ritual extension of audi alteram partem but a valuable right of the accused to establish his innocence and secure a fair trial.

This duty intersects with the standard of proof. Where the accused offers an explanation, he carries only the light burden of preponderance of probabilities; the persuasive burden to prove guilt beyond reasonable doubt never shifts from the prosecution. A judgment that convicts while ignoring a plausible explanation tendered under Section 313 is therefore vulnerable on appeal. The disciplined recording of these answers and their reasoned treatment in the judgment connect directly to the craft discussed in our note on recording of evidence in criminal trials.

Omission, prejudice and vitiation of trial

What happens when the court fails in its duty — when an incriminating circumstance is not put, or the examination is perfunctory? The answer turns on prejudice. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, the Court laid down the working rule: where evidentiary material is not put to the accused, the court must ordinarily eschew it; but the omission does not ipso facto vitiate the proceedings, and the accused must establish that prejudice was occasioned. The Court added a pragmatic safeguard — an appellate court may call upon counsel for the accused to indicate what explanation the accused would offer for an unput circumstance, and if no plausible explanation is forthcoming, the court may assume that none exists.

This prejudice-centred approach was systematised in Nar Singh v. State of Haryana, (2015) 1 SCC 496. The Court held that an accused is not entitled to acquittal as of right merely because of non-compliance with Section 313; whether the trial stands vitiated depends on the degree of the error and on the accused demonstrating that the lapse has materially prejudiced him or is likely to. The Court charted the courses open to an appellate or revisional forum — ranging from remand for proper examination, to permitting the accused to explain the circumstance at the appellate stage, to disregarding the unput circumstance altogether — the choice depending on the stage of the proceedings and the prejudice shown. The thread running through Shivaji Sahabrao Bobade, Samsul Haque and Nar Singh is consistent: serious irregularity, yes; automatic acquittal, no.

Dispensing with personal attendance and written statements

Must the accused be physically present to be examined? The leading authority is Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740. There, two accused — one in the United States, the other studying elsewhere — could not conveniently attend; their counsel sought dispensation and filed statements on their behalf. The Supreme Court held that while the normal rule is personal examination, in an appropriate case where insistence on personal attendance would cause hardship and the accused has filed an affidavit answering the questions through counsel, the court may dispense with personal presence, provided the accused does not thereby gain an unfair advantage or stall the proceedings. The decision read a measure of flexibility into the section even before the 2009 amendments.

The 2009 reforms then codified and widened this flexibility. The proviso to clause (b) expressly permits dispensing with the clause (b) examination in a summons-case where personal attendance has already been dispensed with. And sub-section (5) allows the court to permit the accused to file a written statement as sufficient compliance with the section. These measures are carried forward unchanged into Section 351 BNSS. They do not dilute the substantive rule — every incriminating circumstance must still be addressed — but they relieve the formality of physical presence where justice does not require it.

Examination in the architecture of the trial

The Section 313 examination does not stand alone; it sits at a precise point in the trial's architecture. It follows the framing and reading over of the charge, which fixes the accusation the accused must meet — discussed in our note on charge framing, form and reading over. It follows the recording of prosecution evidence, because clause (b) is triggered only after the prosecution witnesses are examined. And it precedes the defence evidence, because its very object is to let the accused respond before he decides whether and how to lead a defence.

This sequencing has doctrinal consequences. A circumstance that emerges only in the defence evidence, or one introduced by the court under its power to summon material witnesses, may require a supplementary examination so that the accused is not condemned on material he never had the chance to explain. Where the charge itself is altered after the prosecution evidence, fairness ordinarily demands a fresh or supplementary Section 313 examination directed to the altered charge. The provision thus operates as a continuing safeguard, re-engaged whenever new incriminating material crystallises against the accused before judgment.

Practical checklist for the trial court

Distilled from the authorities, the conduct of a sound Section 313 / Section 351 examination follows a clear sequence. First, the court itself must conduct the examination after the close of prosecution evidence and before defence evidence; the clause (b) duty cannot be delegated or skipped except under the summons-case proviso. Second, every material incriminating circumstance — each item of evidence the court may rely on to convict — must be put as a separate, intelligible question, never as an omnibus query (Tara Singh; Raj Kumar Singh). Third, no oath is administered and the accused is told he may decline to answer without penalty (sub-sections (2)–(3)).

Fourth, where helpful, the court should invoke sub-section (5) to take the assistance of the Prosecutor and defence counsel in framing questions and may permit a written statement. Fifth, the answers must be recorded faithfully and, in the judgment, the court must reason out its acceptance or rejection of the accused's explanation (Reena Hazarika). Sixth, the court must remember the evidentiary boundaries — the statement is not substantive evidence and cannot alone convict (Sukhdeo Singh; Sujit Biswas) — while any circumstance not put must be excluded from the assessment of guilt (Samsul Haque). Observed faithfully, the examination protects the accused; observed carelessly, it imperils an otherwise sound conviction.