Examining The Accused And Recording Their Statement Under S.313 CrPC: Karnataka High Court Issues Directions For Trial Courts To Follow

Justice Sreenivas Harish Kumar said, "Section 313 of the Code embodies the fundamental principle of 'Audi Alteram Partem'. Since this is the stage where the accused gets an opportunity to explain an inculpatory evidence against him, the questions must be framed in such a manner as he or she understands them."

The court added,

"The questions must be simple and specific to the evidence against the accused. A long string of questions couched in complex sentences must be avoided. Several distinct matters should not be rolled up, every question must cover a distinct incriminatory evidence. While questioning the accused, not only the incriminatory oral evidence but also the documents and the material objects indicating adverse evidence should be brought to the notice of the accused."

The court then went on to issue the following guidelines:

(i) Only the incriminatory evidence must be picked out from oral and documentary evidence.

(ii) The questions must be framed in simple language, as far as possible in short sentences.

(iii) The attention of each accused must be drawn to the evidence adverse or against him/her.

(iv) Sometimes, a witness may give evidence as regards the collective overt act of two or more accused and in that event, a single question may be framed, but each accused must be questioned individually, and their answers must be recorded separately.

(v) It is also possible that two or more witnesses may speak identically regarding the overt act of an accused. In that event, the substance of their evidence may be put in a single question.

(vi) The attention of the accused must be drawn to the marked documents and material objects if they are incriminatory.

(vii) The accused must be questioned regarding various types of mahazars or panchanamas only if they contain incriminatory evidence.

(viii) Accused need not be questioned in regard to evidence given by the formal witnesses, for example, an engineer who has drawn the sketch of scene of occurrence, a police constable submitting the FIR to the Magistrate, a police constable carrying seized articles to FSL, a police officer who has only submitted the charge sheet without conducting investigation, etc., unless anything incriminatory is found in such evidence.

(ix) If there are two or more accused, it is not necessary to prepare as many sets of questionnaires as the number of accused are It is enough to prepare a single questionnaire, but the question must be directed towards a particular accused individually or two or more accused collectively. When a question is framed pointing out the collective overt act of two or more accused, the answer of each accused must be recorded separately one after another.

(x) By virtue of amendment brought to Cr.P.C, (Sub-section (5) of section 313 of Cr.P.C inserted by Act 5 of 2009) the trial court judges may take the assistance of the Public Prosecutors and the defence counsel for framing the questions.

(xi) In case the Public Prosecutor or the defence counsel submits a set of questions, the trial court judges must scrutinize and adopt them with or without modification.

(xii) The court should record the answer or explanation given by the accused and should not insist upon the accused to give an answer in one word, 'false' or 'true'.

The court also directed the Registrar General of the High Court to circulate this order to all the trial courts in the State. Further, it directed the Karnataka Judicial Academy to prepare a model questionnaire and circulate the same to all the trial courts for their guidance.

Case Background:

Petitioner Meenakshi, and others who are facing a trial for offences punishable under section 302, 201 r/w section 34 of the Indian Penal Code, before the Additional District and Sessions Judge, Mysuru had approached the court.

Advocate N.Tejas, appearing for them, had submitted that the questions framed by the Sessions Judge has totally overlooked the importance of examining the accused under Section 313 Cr.P.C. Further, in the case on hand, there are two sets of questionnaires which almost contain the same questions. Many questions do not contain incriminating evidence against the accused. The questions are not properly articulated and they are framed in complex sentences rendering it difficult for the accused to understand them. He also submitted that although the accused offered explanation for some of the questions, the Sessions Judge refused to record them and insisted on giving the answer in a single word – either 'false' or 'true'.

Further, he contended that the defence counsel was ready to assist the court in framing the questions as it is permitted now in view of amendment brought to Cr.P.C by Act 5 of 2009 (w.e.f.31.12.2009). He prayed for setting aside the statements recorded under Section 313 Cr.P.C, and a direction may be given to the Sessions Judge for examining the accused once again properly and recording their explanations that they want to give.

Court's Findings:

The court on going through the question prepared by the sessions judge said,

"I have gone through the questions framed by the Sessions Judge. He has prepared two sets of questionnaires as there are two accused. But the questions in the two sets are almost common; they are lengthy; and the Sessions Judge has verbatim reproduced the evidence in examination-in-chief in the form of questions. The questions thus framed by the Sessions Judge do not serve the intendment of Section 313 of the Code."

The court allowed the petition and set aside the statements of the accused recorded under section 313 Cr.P.C. It directed the trial court to re-examine the accused under section 313 Cr.P.C following the guidelines set out above.

Case Title: Meenakshi And State of Karnataka

Case No: Criminal Petition No.2170 Of 2021

Date Of Order: 21st Day Of September 2021

Appearance: Advocate N Tejas for petitioner

Advocate R.D.Renukaradhya, for respondent