Bharatiya Nagarik Suraksha Sanhita

Topic: Examination of Accused

Submitted by: Submitted to:

First and foremost, I would like to thank my supervisor, Mrs. Shruti Goyal, for
her kind support and patience and her trust and belief in me that increased my
self-confidence and encouraged me to work and exploit all that I have in mind to
do better throughout all the periods of preparing my dissertation.
My sincere thanks go to Mrs. Shruti Goyal for devoting her time and effort to
read and evaluate my work, and to everyone who tendered me a helping hand in
my research.

Diya Vig
21017
Fourth Year
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

SUPERVISOR’S CERTIFICATE

Mrs. Shruti Goyal Date:

This is to certify that the project submitted to Rajiv Gandhi National University of Law, Patiala in
partial fulfillment of the requirement of the BA LLB(Hons) Course is an original and bonafide
research work carried out by Ms. Diya Vig under my supervision and guidance. No part of this
project has been submitted to any University for the award of any degree or diploma,whatsoever.
4
 Introduction

The purpose of empowering the court to examine the accused under section 351 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS) is a reinstatement of Section 313 of the Criminal Procedure Code
(CrPC), which were enacted to meet the requirement of the principle of natural justice audi alteram
partem (that no one should be condemned unheard). This means that the accused may be asked
to furnish some explanation as regards the incriminating circumstances associated against him
and the court must take note of such explanation. In a case of circumstantial evidence, the same is
necessary to decide whether ornot the chain of circumstances is complete.1

Accused is analysed in each enquiry or preliminary by empowering him to clarify by and by to

We as a whole realize it is principal rule of equity nobody ought to be accused unheard. to meet
the necessity of the standards of normal equity as it necessitates that an accused might be given a
chance to outfit clarification of the implicating material which had come against him in the
preliminary. Be that as it may, his assertions can’t be made a reason for his conviction.

It was observed by the Hon’ble apex court in Raj Kumar Singh v. State of Rajasthan2 that in a
criminal trial, the motivation behind analysing the accused individual under Section 313 CrPC., is
to meet the prerequisite of the standards of common equity, for example, audi alterum partem.
This implies the charged might be approached to outfit a few clarifications as respects the
implicating conditions related to him, and the court must observe such clarification.

For a situation of incidental proof, the equivalent is basic to choose whether or not the chain of
conditions is complete. Regardless of how frail the proof of the indictment might be, it is the
obligation of the court to inspect the accused and to look for his clarification as respects the
implicating material that has surfaced against him. The conditions which are not put to the accused
in his assessment under Section 351 BNSS, can’t be utilized against him and must be rejected from
thought.
However, despite such assertions of law and its explicit pre-eminence, Section 313 of CrPC, now
Section 351 of BNSS has,

1
Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150
2
Ibid.
regrettably, subsisted to be an uncelebrated and often, overlooked, statutory provision.
Unfortunately, the prevailing apathy towards the importance of said provision and the manner of
its compliance has, at several occasions, resulted in grave prejudice to accused(s), besides
augmenting the time spent in criminal trial.3

Section 351 BNSS envisages, broadly, two separate phases wherein, "for the purpose of enabling
the accused personally to explain any circumstances appearing in the evidence against him," the
Court is empowered/ mandated to pose questions upon an accused. Significantly, as per Section
351(1)(a) BNSS, the power of the Court to question an accused is discretionary and may be
exercised at any stage of trial/ inquiry, "without previous warning the accused." In contrast, the
examination of accused, generally on a case, in terms of Section 351(1)(b) BNSS is envisioned to
be not only mandatory in nature, rather, required to be undertaken, "after the witnesses for the
prosecution have been examined and before he is called on for his defence."

The Hon'ble Supreme Court in Nar Singh v. State of Haryana4, while dealing with the polarity in
the said provisions/ clauses, inter alia, observed, "[t]here are two kinds of examination under
Section 313 CrPC. The first under Section 313(1)(a) CrPC relates to any stage of the inquiry or
trial; while the second under Section 313(1)(b) CrPC takes place after the prosecution witnesses
are examined and before the accused is called upon to enter upon his defence. The former is
particular and optional; but the latter is general and mandatory." Notably, despite the bifurcation
of the said stages, Section 313 CrPC or Section 351 BNSS provides no limitation or embargo on
the number of times, which an accused may be called for examination/ questioning by Court
under the said provision.

In this regard, the Hon'ble High Court of Delhi in Ranjan Dwivedi v. C.B.I.5, clarified, "it would
be idle to contend that Section 313(1)(b) deals only with one point in time at the trial stage and
the Court cannot call the accused to answer the incriminating circumstances again." The Hon'ble
Court further clarified that there is, "no implied prohibition in calling upon the accused to again
answer questions", provided that the same is not exercised, "in a routine or mechanical
manner." Understandably, the need for re-calling of an accused for questioning under Section 351
BNSS becomes even more prudent/ incumbent9, in cases where fresh incriminating materials
are

3
Varun Sharma and Abhishek Goyal, Section 313 Of The Code Of Criminal Procedure, 1973: An Unsung Hero Of
Criminal Jurisprudence, Mondaq.
4
(2015) 1 SCC 496.
5
(2008) 146 DLT 684.
disclosed against such an accused pursuant to re-examination of prosecution witnesses, induction
of new witnesses, etc.
 Scope and Object of Section 313

The scope and object of examination of the accused under section 351, BNSS is:-

1. to establish a direct dialogue between the court and the accused and to put every important
incriminating piece of evidence to the accused and grant him an opportunity to answer and explain
them.6

2. to test the veracity of the prosecution case. The examination of the accused is not a mere
formality, the questions put to the accused and answers given by him, have great use. The scope
of section 351 of the BNSS is wide and is not a mere formality. The object of recording the
statement of the accused under section 351, BNSS is to put all incriminating evidence to the
accused so as to provide him an opportunity to explain such incriminating circumstances appearing
against him in the evidence of the prosecution. 7

The object of section 351 of Bharatiya Nagarik Suraksha Sanhita (BNSS) is to give occasion to
feel qualms about an obligation the courts to scrutinize the accused appropriately and decently so
that it is acquired home to the accused clear words the accurate case that the charged need to meet
and consequently an open door is given to the accused to clarify any such point. The assessment
of the accused person isn’t planned to be an inert custom it must be completed in light of a
legitimate concern forequity and reasonable play to the accused person.

Object and purpose is to afford an opportunity to the accused personally to explain any
circumstances appearing in the evidence against him at the trial. In case statement u/s 351 BNSS
consists of inculpatory part accompanied by explanatory part and two cannot be separated if there
is an admission of certain facts u/s 351 BNSS that can be acted upon within the parameters of
Sec. 58 Evidence Act, now Section 53 of the Bharatiya Sakshya Adhiniyam, 2024. While
considering the answer of the accused u/s 313 CrPC the court cannot accept the inculpatory part
and reject the exculpatory part of the answer.8

6
Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507
7
Ibid.
8
Subhash Chand Vs. State of Rajasthan, (2002) 1 SCC 702; Parsadi Vs. State of UP, 2003(47) ACC 153 (DB).
 Procedure for Examination of the Accused

The court needs to take intense consideration while looking at natural and ignorant persons. The
accused in the event that he is anything but a shrewd individual with a sharp memory may not by
any means recall every one of the conditions put to him while giving his clarification. This may
affinely prompt miscarriage of equity.

In the event that dubious inquiries are put to the accused, he might not have the chance to clarify
quickly and effectively. Proof of each witness and implicating proof found thereon ought to be
asked exclusively yet not in a conventional manner scrutinizing all the accused at once.

Addressing of all charged at once about implicating proof discovered structure arraignment isn’t
legitimate, as job and interest, each alleged offender may diverse as indicated by the realities and
conditions of each case. So, it is constantly alluring to get some information.

Considerably, a perusal of the provisions under Section 351 BNSS would manifestly demonstrate
that the examination of an accused under the said Section is obligatory and as a corollary, it is
quite understandable9 that the incriminating pieces of evidence, not put to an accused cannot be
relied upon for recording his conviction. In this regard, the Hon'ble Apex Court in Maheshwar
Tigga v. State of Jharkhand10 reiterated, "circumstances not put to an accused under Section 313
CrPC cannot be used against him, and must be excluded from consideration. Importance of the
questions put to an accused are basic to the principles of natural justice as it provides him the
opportunity not only to furnish his defence, but also to explain the incriminating circumstances
against him. A probable defence raised by an accused is sufficient to rebut the accusation without
the requirement of proof beyond reasonable doubt." However, notwithstanding the mandatory
nature of said provision, it is trite law that mere defective or improper examination under Section
313 CrPC would be no ground for setting aside the conviction of the accused, unless it has resulted
in prejudice to the accused. As per the Hon'ble Court11, "it would not be enough for the accused to
show that he has not been questioned or examined on a particular circumstance but he must also
show that such non-examination has actually and materially prejudiced him and has resulted in
failure of justice. In other words in the event of any inadvertent omission on the part of the court

9
Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
10
(2020) 10 SCC 108.
11
Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.
to question the accused on any incriminating circumstance appearing against him the same cannot
ipso facto vitiate the trial unless it is shown that some prejudice was caused to him." Explicably,
under such circumstances12, "onus is upon the accused persons to prove that by reasons of his not
having been examined as required by S. 313 of the Criminal P.C. he has been prejudiced."

Proper mode of recording statement u/s 351 BNSS : The proper methodology to be adopted by
the court while recording the statement of the accused u/s 351 of the BNSS 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 withlaw.13

Examination of accused u/s 313 CrPC is not mere a formality: Examination of the accused u/s
351 BNSS is not a mere formality. Answers given by the accused to the questions put to him
during such examination have a practical utility for Criminal Courts. Apart from affording an
opportunity to the delinquent to explain incriminating circumstances against him, they would help
the court inappreciating the entire evidence adduced in the court during trial.14

Method of framing questions u/s 351 BNSS : Questions u/s 351 BNSS must be framed in such
a way as to enable the accused to know what he is to explain and what are the circumstances
which are against him and for which an explanation is needed. The whole object of Sec.351
BNSS is to afford the accused a fair and proper opportunity of explaining circumstances which
must be fair and must be couched in a form which an ignorant or illiterate person will be able to
appreciate and understand. Conviction based on the failure of the accused to explain what he was
never asked to explain is bad in law. The whole object of enacting Sec.351 BNSS 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 him so that he may be able to
give such explanation as he desires to give. It is not sufficient compliance of Sec. 351 BNSS to
string together along series of facts and ask the accused what he has to say about them. He must
be questioned separately about each material substance which is intended to be used against
him. The

12
Kalipado Gope v. State of Bihar, 1987 Cri LJ 1320.
13
Dharnidhar vs. State of U.P., 2010 (6) SCJ 662.
14
Parminder Kaur Vs. State of Punjab, (2020) 8 SCC 811; Rattan Singh Vs. State of Himachal Pradesh, AIR 1997 SC
768.
questionings must be fair and couched in a form which an ignorant or illiterate person will be able
to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed
when he is facing a charge of murder. Fairness, therefore, requires that each material circumstances
should be put simply and separately in a way that an illiterate mind or one which is perturbed or
confused can readily appreciate and understand.15

15
Ajay Singh Vs. State of Maharashtra, 2007(58) ACC 1061 (SC); Adil Vs. State of UP, 2008(62) ACC 151 (All. DB).
 Evidentiary Value of Statements made under Section 313

As the accused is not examined on vow in 313 assessment to clarify his form or his case against
the proof cited by indictment, the statements made by him can’t be taken as a proof against him.
Indeed, even it is right of the charged person to keep quiet or to give any unauthentic articulation
which doesn’t tie him or the court is not permitted to indict him on such explanations given by him
in the assessment.

The purpose, procedure and consequences of 313 examinations were best explained by the Hon’ble
Supreme Court in Sanatan Naskar v. State of West Bengal16. The court held that “The answers
by an accused under Section 351 of the BNSS are of relevance for finding out the truth and
examining the veracity of the case of the prosecution. The scope of Section 351 of the BNSS is
wide and is not a mere formality”.17

In Mohan Singh v. Prem Singh18, the court raised the question that when such an examination is
recorded, what degree and results such explanation can be utilized during the enquiry and the trial.
Over the time frame, the Courts have clarified this idea and now it has attained, more or less,
assurance in the field of the criminal statute.

The assertions of the accused can be utilized to test the veracity of the exculpatory of the
confirmation, assuming any, made by the accused. It very well may be mulled over in any enquiry
or preliminary yet at the same time, it does not carefully confirm the situation.

The provisions of Section 351 (4) of BNSS expressly gives that the appropriate responses given
by the charged person might be mulled over in such enquiry or preliminary and put in proof
possibly in support of the accused in some o ther enquiry into or trial for some other offence for
which suchanswers may will in general show he has submitted.

As it were, the utilization is passable according to the arrangements of the Code yet has its very
own restrictions. The Courts may depend on a part of the assertions of the accused person and see
him as liable regarding the other proof against him drove by the arraignment, be that as it may,

16
Sanatan Naskar v. State of West Bengal, AIR 2010 SC 3507.
17
Ibid.
18
Mohan Singh v. Prem Singh, AIR 2002 SC 3582.
such explanations made under this Section ought not to be considered in detachment yet related to
proof illustrated by the indictment.

Another significant alert that Courts have proclaimed in the proclamations is that conviction of the
denounced can’t be founded simply on the assertions made under Section 351 of the BNSS as it
can’t be viewed as a substantive bit of proof.
 Effect of Non-Compliance of Section 351

Non-examination of accused under Section 351 of BNSS doesn’t nullify the whole procedures or
instance of the arraignment. The person charged of offence can make use for the equivalent even
at the re-appraising stage. It is not the sole base for ousting except if the accused person indicated
premature delivery for equity.

The court in State (Delhi Adm.) v. Dharampal19, stated that in this way it is to be seen that were
an oversight, to carry the consideration of the accused to an inculpatory material has happened that
doesn’t ipso facto vitiate the trial. The accused must show that irreparable loss had incurred or
great travesty of justice was occasioned by such oversight.

Further, in case of an inculpatory material not having been put to the accused, the re-appraising
Court can generally make great that slip by calling upon the insight for the charged to show what
clarification the denounced has as respects the conditions built up against the charged however not
put to him.

Moreover, in Gyan Chand v. State of Haryana20, the plea of non-compliance of the arrangements
of Section 313, CrPC was taken for the first time before the apex court. Be that as it may, there
was no material appearing concerning what bias has been caused to the denounced person if
realities of cognizant belonging were not put to them.

In this manner, the court held that the trial was not frustrated for the rebelliousness of the provision.
Mere faulty/inappropriate assessment under Section 351 is no ground for putting aside the
conviction of the accused person, except if it has brought about partiality to the denounced. Except
if the assessment is done in an unreasonable manner, there can’t be any bias to the denounced.

19
State (Delhi Adm.) v. Dharampal, AIR 2001 SC 2924.
20
Gyan Chand v. the State of Haryana, AIR 2013 SC 3395.
 Conclusion

Conclusively, the significance of the provisions under Section 351 BNSS cannot be
overemphasized. The said provision, is not merely a part of audi alteram partem, rather32, "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, even if
it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2)
CrPC." However, despite its importance being highlighted by various Courts from time to time,
the mandatory compliance of the provisions under Section 313 CrPC unanimously by Court, has,
regrettably, remained to be an elusive aspiration. In fact, the Hon'ble Apex Court in Satbir Singh
v. State of Haryana21, while lamenting on the Courts' casual and cursory approach towards the
compliance of Section 313 CrPC, reiterated, "It ought to be noted that the examination of an
accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based
on the fundamental principle of fairness. This aforesaid provision incorporates the valuable
principle of natural justice "audi alteram partem" as it enables the accused to offer an explanation
for the incriminatory material appearing against him. Therefore, it imposes an obligation on the
court to question the accused fairly, with care and caution."

Indisputably, despite the copious perquisites and paramountcy of the provisions under Section 351
BNSS, the said provision has, unfortunately, persisted to remain shrouded under the veils of
ignorance, oversight and disdain. Appreciating the indispensability of the said provision, it would
not be a magnification to state that Section 351 BNSS is an unsung hero of criminal
jurisprudence, meritorious and deserving of remission of its long lost dues by Courts and criminal
machinery, alike.

21
2021 SCC OnLine SC 404.