Section 313 CrPC, Audi Alteram Partem, and the Rights of the Accused

Chetan Lokur

The Criminal Procedure Code, 1973 guarantees certain basic rights to the accused, including the right to be supplied a copy of all the documents on which the prosecution proposes to rely (Sections 207 and 208, CrPC); the right to lead evidence in defence (Section 243); the right to be present during the recording of evidence (Section 273); and the right to legal counsel at the expense of the state (Sections 303 and 304).

These provisions essentially ensure that the accused is aware and informed of the prosecution’s case against him, and is consequently able to prepare his defence and effectively plead his case before the courts. This enables the trial to meet the requirement of the principle of natural justice—the right to be heard, or audi alteram partem.

One other such provision that ensures the principle of natural justice to the accused is Section 313, CrPC. The nominal title of the section suggests that it empowers the court to examine the accused. However, on reading the provision, it becomes clear that the purpose of the same is to enable the accused to explain away any incriminating circumstances that may exist in the evidence led against him.

Thus, not only does it enable the courts to question the accused at any stage without warning, but it also enables the accused as well to personally enter into a dialogue with the court to explain his innocence.

Recently, the Supreme Court had occasion to consider the rights of the accused enshrined under Section 313 in a judgement delivered on 26 August 2019 in the case of Samsul Haque vs State of Assam. In this case, the appellant was convicted of murder, and the conviction was upheld by the Gauhati High Court. The Supreme Court, however, noted that only two questions were put to the accused in his statement under Section 313, and called it perfunctory.

It further held,

“[T]he incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem.”

In view of the abridged recording of the Section 313 statement, the accused was acquitted.

The Supreme Court also relied on two precedents. In Shivaji Sahabrao Bobade vs State of Maharashtra, a three-judge bench was concerned with what happens when one omits to put to the accused an incriminating circumstance appearing against him in evidence. The Bench held that it was fundamental that the prisoner’s attention be drawn to ‘every inculpatory material so as to enable him to explain it.’ 

The apex court in Samsul Haque had also relied on the following observations in the case of Asraf Ali vs State of Assam:

The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on inculpatory material in the prosecution evidence, it would vitiate the trial.

The importance of Section 313 in protecting the rights of an accused during trial is well recognized. In fact, the previous CrPC of 1898 had also incorporated a similar provision under Section 342. Even the Sixth Amendment to the Constitution of the United States – ratified as far back as 1791 – includes rights enshrined in Section 313, namely, the right ‘to be informed of the nature and cause of the accusation’, and ‘to be confronted with the witnesses against him’.

In sum, it can be seen that Section 313 is a salutary provision deep-rooted in our criminal justice system. It allows the accused to speak freely and with impunity, as the statement recorded is without oath, and the accused cannot render himself liable by giving false answers.

For precisely this reason, the version of the accused in his statement should be accepted if it is reasonable and accords with probabilities, unless the prosecution can prove beyond reasonable doubt that it is false.

Even though it casts an onerous duty on the courts to put to the accused each material circumstance appearing in evidence against him/her specifically, distinctly and separately, failing which vitiates the trial, at the same time it goes a long way in furthering the objective of the trial court in ascertaining the truth, which, ultimately, is the guiding principle underpinning our nation’s criminal justice process. 

The author is an Advocate at the Supreme Court of India.