The intent of the legislature was to add a provision in the Code of Criminal Procedure (Cr. P.C) that may allow the Accused to explain the incriminating material against him without an oath. The statutory provision of S. 313 Cr. P.C was inserted to comply with the constitutional mandate of Article 20 (3) of India's Constitution, which provides for the right against self-incrimination. Thus, to protect the accused against self-incrimination and to fulfil the criteria of a fair trial, S. 313 came to be inserted in Cr.P.C.

The object of the provisions of S. 313 of Cr. P.C is to establish a direct discourse between the Court and the accused. Also, if a point in the prosecution evidence is important against the accused and the conviction is solely intended to be based upon it, it is just and proper that the accused should be questioned and be given an opportunity of explaining it. As such, S.313 Cr. P.C not only enables the Court to question the accused at any stage, but it also enables the accused to personally enter into a discussion with the Court to explain his innocence.

In the case of 'Mir Mohammad Omar v State of West Bengal,1 it was held that S. 313 applies to all the types of trials, whether it be a warrant, summons or summary trial. It is important to note that before the questions are put to the Accused under S. 313, the Court is required to ensure that the questions are fair and couched in a language that even an illiterate or ignorant accused is able to understand and answer. But if the accused is illiterate and cannot understand the language of the Court, it is incumbent on the Court to translate the questions in the language known to the accused. Further, where the accused is a juristic person, such as a company, a personal examination is not possible and therefore, in such circumstances, the examination of a director or authorised person of a company is permissible.   

As such, the purpose of examination of the accused under S. 313 Cr.P.C. has been lucidly explained by the Hon'ble Supreme Court in the case of 'Sanatan Naskar & Another Vs. State of West Bengal',2 wherein it was held that the object of examination is to establish a direct discussion between the Court and the accused and to test the veracity of the prosecution case. As such, the examination of the accused is not a mere formality, and the questions put to the accused and answers that are given by the accused are important for the accused to prove his innocence.

In the case of 'Dehal Singh Vs. State of Himachal Pradesh3, it was held that the statement of the accused u/s. 313 of Cr.P.C. is required to be recorded without administering the accused on oath. Therefore, a statement under S. 313 cannot be considered as evidence within the scope of Section 3 of the Indian Evidence Act, 1872.

From the perusal of the provisions inherent under S. 313, it would also be clear that the accused can be examined at any stage of the proceedings, which includes even at the stage of enquiry. That is to say, before framing the charges. Further, the Hon'ble Supreme Court in the case of 'Sharad Birdichand Sharda V. State of Maharashtra'4 has held that the circumstances which were not put to the accused in his examination under S. 313  of the Cr. P.C. have to be wholly excluded from consideration since the accused did not have the chance to explain them and the same cannot be used against him. Accordingly, the conviction of the accused was set aside in the said case. Furthermore, in the case of 'Basavaraj r. Patil Vs. State of Collector,5 the Apex Court has held that it is necessary that in all cases, the accused must answer the question put to him.

In all cases, it is primarily important that the question put to the accused should be answered by him by personally remaining present before the Court. However, if the Court comes to a conclusion that the statement of the accused cannot be recorded without delay, the Court can dispense the presence of the accused and direct the counsel of the accused to record a statement on behalf of the accused.  

Also, if the examination of an accused under S. 313 Cr.P.C. has already taken place, the Court can recall the accused to answer incriminating circumstances once again. As such, there are no express conditions laid down in the Cr. P.C for re-calling the accused once again to answer the new questions by the Court. It is settled that the power to recall the accused twice for examination under S. 313 should not be routine or mechanical. In the case of 'Rajan Dwivedi Vs. CBI'6 it was held that the Court directing the accused to give his statement under S. 313 Cr.P.C. should pass a detailed order and provide an explanation as to why and for what reasons the accused has been re-directed to give his statement to answer the question arising out of incriminating circumstances. It is also settled law that if the fresh evidence is introduced by the prosecution, the accused must be allowed for the second time to explain the evidence/circumstances against him.

Apart from the above, in cases where the accused faces difficulties in remaining present before the Court, the accused through his counsel can file a separate application along with an affidavit and pray dispensation from his personal appearance to record the statement. As such, the accused in the affidavit filed along with the application has to categorically mention about the nature of hardship caused and grant an assurance to the Court that he shall not plead prejudice by taking benefit of dispensation from his personal presence. On the other hand, the prosecution may at any point of time before the application is allowed, raise its objection with reasons why the said application should not be allowed and the prejudice that may be caused to the prosecution if such an application is allowed.

Our Views:

From the settled position of law, it is clear that the circumstances which, according to the prosecution, lead to proof of guilt against the accused must be put to him in his examination under S. 313 of Cr. P.C.7 'Therefore, in all inquiries and trials, S. 313 Cr.P.C. purpose is to give an opportunity to the accused to explain the incriminating material against him in evidence tendered by the prosecution. The prosecution has to prove its case beyond a reasonable doubt, but the provisions of section 313 Cr.P.C. are not a mere formality. As such, the provisions of S. 313 Cr.P.C. acts in a dual purpose, firstly that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and secondly, the Court should provide an opportunity to the accused to explain his part of the defence or his version of the case. It is the mandatory duty of the Court to provide an opportunity to the accused who has appeared before it to face a fair trial. However, if the accused deliberately fails to avail the opportunity provided to him, then the consequences in law must follow.                 


1 (1989) 4 SCC 436

2 AIR 2010 SC 3507.

3 2010 9 SCC 85).

4 (1984) 4 SCC 116

5 AIR 2000 SC 3214.

6 2008 Cri.L.J. 1440).

7 Vikramjit Singh Vs. State of Punjab' (2006 12 SCC 306).

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