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Sessions trial and section 309,311 , 319 and 313

Supreme Court of India

The State Of Maharashtra vs Dr. Praful B. Desai on 1 April, 2003 so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".


Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other. 299 CrPC (To be read with section 33 of Indian Evidence Act ,1872) Supreme Court of India

Nirmal Singh vs State Of Haryana on 30 March, 2000

the sole question that arose for consideration is under what circumstances and by what method, the statements of persons could have been tendered in the case for being admissible under Section 33 of the Evidence Act and whether conviction can be based upon it ? Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299(1) of the Code of Criminal Procedure. When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable. Any one of these circumstances, which permits the prosecution to use the statements of such witnesses, recorded under Section 299(1) must be proved and the Court concerned must be satisfied and record a conclusion thereon. ( Mere bald statement by prosecution that witness is ill and cannot move is not sufficient , the satisfaction of the court required under 299 has to be proved like any other fact) In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable. Since the law empowers the Court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied of the opportunity of cross-examining the witnesses, it is, therefore, necessary that the pre-conditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the pre- conditions before tendering the evidence. (But when the Appellate Court examines the records of the proceedings and comes to a conclusion that in fact those persons have died long before the summons on them to appear as witness, could be issued, the evidence thus tendered cannot be ignored from consideration. Even though the lower court fails to go into the question of satisfaction of the pre requisites for S. 299) (conviction can also be based on such statement if they are fit for reliance by the courts concerned and are credible as they are treated as evidence ) In Jose vs. The State of Kerala, AIR 1973 SC 944, Supreme Court had an occasion to examine the question of treating the evidence of a witness in the committal Court as substantive evidence in trial under Section 33 of the Evidence Act, Court had recorded the fact that at the time of trial, the witness had left for Coorg and was not available and it was not possible to serve summons on him and even a non-bailable warrant issued by the Court was returned with the endorsement not available and it is under those circumstances, the learned Sessions Judge brought on record the statement made by the eye witness before the committal Court as substantive evidence and marked the same as P-25. SupremeCourt negatived the contention of the accused and held that the said statement had rightly been treated as an evidence during trial. Section 231 and section 313 of Cr.pc 313 Cr.PC

(this section applies to all forms of trial , including summary , summon or warrant trial and it must be read with subject to provision of section 205 , also oath cannot be administered in 313 and consequently it is not evidence. For the same reason he cannot be punished for perjury if accused does lie in statement of 313 same is the case for refusal to answer . Statement of accused under 313 is not substantive evidence. Also omission to comply with 313 (b) may not ipso facto vitiate the proceedings even though its a mandatory provision , test is whether prejudiced has been caused to the accused)


Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150


The purpose of empowering the court to examine the accused under section

313, Cr.P.C is 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 or not the chain of

circumstances is complete.

The object of examination of the accused under section 313, Cr.P.C:

A.- 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

B - to test the veracity of the prosecution case.

Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507

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 313 of the Cr.P.C. is wide and is not a mere

formality. The object of recording the statement of the accused under

section 313, Cr.P.C. 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.

In Dharnidhar v. State of U.P. & Others; 2010 AIR SCW 5658, the court

held that the proper methodology to be adopted by the court for recording the

statement of the accused under section 313, Cr.P.C., is to invite attention of the accused to the incriminating circumstances and evidence and invite his explanation. In other words, it provides an opportunity to an accused to tell to the court as to what is the truth and what is his defence.

In the case of Dehal Singh v. State of Himachal Pradesh; AIR 2010 SC

3594, the court held that the statement of the accused under section 313, Cr.P.C. is

recorded without administering oath. Therefore, it cannot be treated as evidence

within the meaning of section 3 of the Evidence Act, 1872.

Section 313, Cr.P.C. (1) (b) casts a duty on court to give an opportunity to the

accused to explain the incriminating material against him.

(The word "personally" would show that the opportunity afforded to the

accused to explain his stand on the incriminating circumstances is in addition

to what his Counsel would have already done by way of cross-examination.

Therefore, it would be premature to examine the accused to explain personally

any circumstance when he has not exhausted the opportunity to cross examine

the witnesses.)


The words “Explain any circumstance…….in the evidence against him”

Under section 313, Cr.P.C. (1)(b), it is mandatory for the trial Judge to

put to the accused every such piece of evidence which appears incriminating

against him and reply of the accused shall be sought thereto.

The accused may or may not avail the opportunity for giving his

explanation.

State of U.P v. Mohd. Iqram & Anr; AIR 2011 SC 2296

Attention of the accused must specifically be drawn to inculpatory

pieces of evidence to give him an opportunity to offer an explanation if he

chooses to do so. Court is under legal obligation to put all incriminating

circumstances before accused to solicit his response. This provision is

mandatory in nature and casts an imperative duty on the court and confers a

corresponding right on the accused. Circumstances not put to the accused in his examination under section 313, cannot be used against him.

Can Examination U/s. 313, Cr.P.C. more than once? Rajan Dwivedi v. CBI; 2008 Cri.L.J.; 1440 DEL

If examination of the accused under section 313 has taken place, the

court can call the accused to answer incriminating circumstances again. There

is no implied prohibition on calling upon the accused to again answer

questions. However, power to call the accused to answer questions more than

once, after conclusion of the prosecution evidence should not be used in a

routine or mechanical manner.

Emperor vs Nathu Kasturchand Marwadi; 1924 (27) BOM LR 105

Words "Shall after the witnesses for the prosecution have been examined” etc.

The provisions of section 313, Cr.P.C. are for the benefit of the accused.

Section 313 (1)(b) is mandatory in nature and in order to provide an

opportunity to the accused to obtain the full benefit of the section, it is the duty

of the court to examine the accused after cross-examination and reexamination, if any of the prosecution witnesses is over.

Emperor v. Bhau Dharma; (1928) 30 Bom LR 385

If fresh prosecution witnesses are examined after the examination of the

accused, it is obligatory to further examine the accused under section 313,

Cr.P.C.

can a conviction be based on such an admission of guilt made in the written statement followed by the oral statement under section 313 of the Code?

can a conviction be based on such an admission of guilt made in the written statement followed by the oral statement under section 313 of the Code?


51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence Stricto sensu. That is why Sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes Sub-section (4) which reads:

(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.

Thus the answers given by the accused in response to his examination under Section. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari MANU/SC/0085/1967 : 1968CriLJ95 . This Court in the case of Hate Singh v. State of Madhya Bharat MANU/SC/0073/1951 : 1953 Cri. L.J. 1933 held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab MANU/SC/0137/1962 : [1963]3SCR678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. 

Supreme Court of India

Ramnaresh & Ors vs State Of Chhattisgarh on 28 February, 2001

In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable.

It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.

Whether examination of the accused under section 313,

Cr.PC can be dispensed with in a warrant case?


Basavaraj R. Patil v. State ; AIR 2000 SC 3214, the Apex

Court has held that as a general rule, it is necessary that in all cases the

accused must answer the questions put to him under section 313(1)(b)

by personally remaining present in the court. However, if remaining

present involves undue hardship and large expense the court can

dispense such examination even in warrant cases after adopting a

measure to comply with the requirements of section 313, Cr.P.C. in a

substantial manner.

For this the accused must be required to file before the court an

application with an affidavit sworn-in by himself with the prayer that he

may be allowed to answer the questions without his physical presence in

the court on account of justifiable exigencies. The application and the

affidavit of the accused must also contain the narration of undue

hardship and large expense etc., the assurance that no prejudice would

be caused to him by dispensing with his personal presence and an

undertaking that he would not take any grievance on that score at any

stage of the case.

It is also observed that section 313, Cr.P.C. does not envisage the

examination of the Counsel in place of the accused and reiterated the

law laid down by the Apex Court by three Judges Bench in Bibhuti

Bhushan Das Gupta v. State of West Bengal; AIR 1969 SC 381 and

later on followed in Shivaji Sahebrao Bobade v. State of

Maharashtra; (1973) 2 SCC 793.

In K. Anbazhagan v. Supdt. of Police; AIR 2004 SC 524, SC reiterated the general rule that the

accused must answer the questions put to him under section 313 (1)(b),

by personally remaining in the court. And only in exceptional

circumstances of undue hardship and large expense etc., the general rule

of personal presence can be dispensed with. In this case the court held

that the accused was holding the position of Chief Minister of Tamil

Nadu and there was no exceptional exigencies or circumstance such as

to undertake a tedious long journey or incur a whopping expenditure to

appear in the court to answer the questions under section 313, Cr.P.C.

Thus, none of the facts which have weighed with the consideration of

the court in Basavaraj R. Patil case (supra), were available in the given

case.

(In Inspector, Customs, Akhnorr, Jammu and Kashmir v.

Yashpal; (2009) 4 SCC 769, Basavaraj R. Patil case (supra) was

followed in less serious warrant case) (THIS IS TO BE NOTED THAT SINCE ITS AN EXCEPTIONAL SITUATION IT HAS TO BE FOLLOWED IN EXCEPTIONAL CIRCUMSTANCES AND IN LESS SERIOUS CASES GENERALLY)

[Tara Singh v. State of Punjab; AIR 1951 SC 44]

It is not sufficient compliance to string together long series of facts and ask the

accused what he has to say about them. He must be questioned simply and separately

about each material circumstance which is intended to be used against him.

The questioning must be fair and framed in a form which an ignorant and

illiterate person may be able to appreciate and understand. Even if the accused is not

illiterate, his mind is apt to be perturbed when he is facing a trial of murder.

Therefore, it is required that each material circumstance should be put simply and

separately in a way that an illiterate person can appreciate and understand. Naval Kishorev. State of Bihar (2004) 7 SCC 502

The practice of putting the entire evidence against the accused in a single

question and giving an opportunity to explain the same is improper as the accused may not be in a position to give a rational and intelligent explanation.

This opportunity of examination under section 313 given to the accused, is part

of a fair trial and if it is done in a slipshod manner, it may result in imperfect

appreciation of evidence.

(It is imperative that each and every question must be put to the accused

separately and their answers must also be recorded separately) State of Maharashtra v. Goraksha Ambaji Adsul; 2006 Cri.L.J. (NOC) 45]

Recording of statement of the accused persons simultaneously and putting

same set of questions to all the accused may cause prejudice to the accused, hence, it

was held not proper.

(Recording of statements under 313 shall be in full and not in monolithic answers or reducing the statements to a memoramdum or reducing statement to a text without context is impermissible.)

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.

court observed that “circumstantial

evidence is a close companion of actual matrix, creating a fine network through

which can be no escape for the accused, primarily, because such facts when taken

as a whole, do not permit us to arrive any other inference but one, indicating the

guilt of accused.”

In Madhu @ Madhurantha and Another v. State of Karnataka; AIR 2014

SC 394 –, the court held that in cases

where the accused was last seen with the deceased victim (last seen – together theory)

just before the incidence, it becomes the duty of accused to explain the circumstances

under which the death of victim occurred and further it is obligation on the part of the

accused while being examined under section 313,Cr.P.C. to furnish some explanation

regarding the incriminating circumstances associated with him. And the court must

take note of such explanation even in a case of circumstantial evidence to decide

whether or not the chain of circumstances is complete.

Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC

3507

The courts may rely on a portion of the statement of the accused and find

him guilty in consideration of other evidence against him led by the

prosecution. But such statement of under section 313, Cr.P.C. should not be

considered in isolation but in conjunction with the prosecution evidence.

This is the statement which the accused makes without fear or right

of the other party to cross examine him. However, if the statements made

are false, the court is entitled to draw adverse inferences and pass

consequential orders, as may be called for, in accordance with law.

Conviction cannot be based merely on the statement of accused under

section 313, Cr.P.C.

Sanatan Naskar & Another v. State of West Bengal;

AIR 2010 SC 3507

Conviction of the accused cannot be based merely on the statement

made under section 313, Cr.P.C. as it cannot be regarded as a substantive

piece of evidence.

But such statement may act as a relevant ground for consideration of other evidence: