It may relevantly be pointed out here that sub-section (5) inserted in Section 313 Cr.P.C. by the Act of 2009, enables the Learned Trial Court Judge to take the assistance of the Public Prosecutor and the Defence Counsel, for preparing the questions under Section 313 Cr.P.C, which are to be scrutinised by the Learned Trial Court Judge and adopted with or without modifications. Filing of written statement by the Accused to the questions put by him suffices to comply with the said provision of law. [Sikkim High Court -Rabin Rai vs State of Sikkim-Crl. A. No.15 of 2022- dt 21st September 2023]
In Parsuram Pandey v. State of Bihar; (2004) 13 SCC 18 the Supreme Court has held that section 313, Cr.P.C. is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused and by way of its corollary, it benefits the court also in reaching the final conclusion and its intention is not to nail the accused but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem as explained in Asraf Ali v. State of Assam; (2008) 16 SCC 328.
The word “ may” (not mandatory but directory/discretionary) in clause (a) of subsection (1) in section 313 Cr.P.C indicates that even if the court does not put any question under that clause the accused cannot rise any grievance for it. But if the court fails to put the needed question under clause (b) subsection it would result in the handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him.
In Brajendra Singh Vs State of M.P ( 2012 (2) SCC (Crl) 409) wherein it was held by the Hon’ble Supreme Court that the Statement of an accused recorded when he was examined U/sec 313 Cr.P.C, can be used as evidence in so far as it supports the prosecution case. The Same principle would be applicable for the case of Written Statement in Cl 5.
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 subsection (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.
Note: The provisions of Sub-section (5) is apparently permissive whereas the examination of the accused u/s 313(1) CrPC in question-answer form alone, is mandatory. It is true that a mandatory provision overrides an enabling provision. But there is a declaratory tag at the end of the second part of the Sub-section (5) that permitting the accused to file W/S shall be necessary in compliance of Sec.313 CrPC. Therefore, if an accused is permitted to file W/S, the mandatory provision is automatically complied with.
In Gian chand and others Vs. State of Haryana AIR 2013 SC 3395 Wherein it was held that it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance in section 313 Cr.P.C, rather he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of the Justice.
In State of M.P. v. Ramesh, (2011) 4 SCC 786, “The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.”
In Munish Mubar v. State of Haryana; AIR 2013 SC 912, the court held that it is obligatory on the part of the accused while being examined under section 313, Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him and the court must take note of such explanation even in a case of circumstantial evidence so as to decide whether or not the chain of circumstances is complete. The same view was taken in the case of Mushir Khan v. State of M.P.; AIR 2010 SC 762.
The Public prosecutor & the defence counsel to help the court in preparing questions u/s 313 CrPC: Sec. 313(5) of the CrPC as inserted vide amending Act No. 25 of 2005 w.e.f. 23.6.2006 provides that “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”.
The accused can file written statement after obtaining permission of the court and that would be sufficient compliance of the requirement contemplated under Section 313(1)(b) Cr.P.C. By virtue of the aforesaid amendment of Cr.P.C., the Section has become self-contained in the matter of dispensation of personal attendance of the accused during the examination. Therefore, the law on the point is codified that the accused if intended can seek for the permission of the court to dispense him from being personally present before the court for facing the examination as envisaged under Section 313(1)(b) Cr.P.C and thereby resort to the alternate arrangement of filing his explanation to the questions in the form of a written statement. The court ought to have allowed such a request when placed for it’s consideration.
Sec-232 CrPC Acquittal
If after taking the evidence for the prosecution, examining the accused ( u/s 313) and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal.
In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.[Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116]
The Hon’ble Supreme Court in Basavaraj R.Patil & Ors vs. State of Karnataka & Ors., 2000 (8) SCC 740
recognized and accepted the hardship caused to the accused which has been followed in Keya Mukherjee (supra). It is stated that by introducing SubSection (5) of Section 313 Cr.P.C. the legislature has given statutory recognition to the right of the accused to give explanation by a written statement. Sub-Section (5) to Section 313 Cr.P.C. is not limited in its application to proviso to 313(1)(b) Cr.P.C.
Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the Court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of sessions can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth.
Again
Section 233 Cr.P.C provides:
“233(1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.”
The aforesaid Section makes provision in it for the accused to put his defence in the form of a written statement. It means that the accused can remain absent in the proceeding before the court by causing a written statement containing the defence to be put forth through his counsel.
Article 39 A obliges the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid by suitable legislation or schemes, or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Solely on the reason of the accused being a member of an economically weaker section, he ought not to have been denied with his constitutionally recognized right to consult and defend in view of the right of equality before law and equal protection of law enshrined under Article 14 of the Constitution of India and the right to life guaranteed under Article 21 of the Constitution of India. Article 39A of the Constitution reads:
“39A. Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
“If the accused declines to file W/S, still the circumstances appearing in the evidence against him can be used against him, in my considered opinion. Analogically speaking, if the accused person refuses to answer a question put to him during his examination in the question-answer form, it cannot be said that such circumstance cannot be used against him. The provisions u/s 313 CrPC, which are based on the principle of “Audi Alterum Partem” (no man should be condemned unheard), are about giving the accused an opportunity of being heard and not actual hearing of the accused. If he fails to avail the opportunity or exercise his right, he faces the consequences. …..There can be no sustainable plea that the accused is/was not aware of the allegations made against him in the evidence. The law [Sec.313(5)], when it provides that the Court can take help of the defence in preparing the questions for examination of the accused in the earlier system, presumes that the defence is aware of the facts & circumstances enshrined in the evidence and, reasonably so, when the entire evidence was recorded in the presence of the accused and/or his lawyer. Therefore, theory of prejudice also does not come into play here, in my considered opinion”.