Section 313 of the Code of Criminal Procedure provides that in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him,—
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(a) The Court may, at any stage without previously warning the accused, put such question to him as the Court considers necessary;
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(b) The Court shall, after the prosecution witnesses have been examined and before the accused is called upon to put up his defence, question him generally on the case.
The use of the word “may” in clause (a) shows that a discretion is vested in the Court. However, clause (b) uses the word “shall”, and makes the questioning mandatory.
When an accused is being examined as above, no oath is to be administered to him. Moreover, he does not render himself liable by refusing to answer such questions or by giving false answers to such provisions.
The answers which are given by the accused in such examination may be taken into consideration and put in evidence, for or against him in that or any other inquiry or trial for any other offence which such answers may tend to show that he has committed.
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The object of this section is to give an opportunity to the accused to explain any circumstances that go against him, and may, therefore, incriminate him. Thus, for instance, if a knife is found in the house of the accused, and if this is likely to point an incriminating finger at the accused’s implication in a crime, he should be given an opportunity to explain how that knife was found in his house.
In other words, the significance of S. 313 is to benefit the accused, by giving him a chance to explain the evidence against him. The section cannot, therefore, be used to his detriment; it cannot be used to fill up the gaps in the case of the prosecution. (G. Vasudevan, 1978, MLJ (Cr) 617)
The Supreme Court has held that an accused must be properly examined under S. 313, and if a point in the evidence is considered important against him, and if the conviction is intended to be based on such a point, then it is right and proper that the accused should be questioned about the matter, and should be given an opportunity of explaining it. This being an important and salutary provision, it should not be slurred over. (Tara Singh,-1951 S.C.R. 729)
The Supreme Court has held that, in order that a conviction may be set aside for non-compliance with this provision of the Code, it is not enough to show that the accused was not fully examined as required by S. 313, but it must also be shown that such non-compliance has materially prejudiced the accused. (Bijoy Chand Potra,—1952 S.C.R. 202)
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Moreover, S. 313 is to be read subject to S. 205. The Bombay High Court has, therefore, held that if the Magistrate exercises his power under S. 205 to dispense with the personal attendance of the accused, and allows him to appear by a Pleader, the Magistrate is then not bound to question the accused personally. (Jaffar,—36 B.L.R. 433)
It is further provided that any person who is accused of an offence before a Criminal Court shall be a competent witness for the defence, and he may give evidence on oath in disproof of the charges made against him, subject to the following two conditions:
(i) He cannot be called as a witness, except on his own request in writing.
(ii) His failure to give evidence cannot be made the subject of any comment by any of the parties or even the Court itself; nor can it give rise to a presumption against him or any person charged along with him at the same time. (S. 315)
Moreover, no influence, whether by means of any promise or threats or otherwise, can be used to an accused person, to induce him disclose or withhold any matter within his knowledge. However, this does not affect S. 306 and 307 of the Code, dealing with tender of pardon to an accomplice. (S. 316)
It has also been held that S. 313 does not apply to maintenance proceedings under S. 125 of the Cr. P.C. (Vithaldas, (1928) 30 B.L.R. 957) S. 313 does, however, apply to summary trials, to summons-cases, as well as to warrant-cases.
