Quick answer
Under Section 351 of the B.N.S.S. (old Section 313 CrPC), the court questions the accused so that he can personally explain any circumstance appearing in the evidence against him. After the prosecution witnesses are examined and before the accused is called on for his defence, the court must question him generally on the case. He is not put on oath, he cannot be punished for refusing to answer or for answering falsely, and his answers may be taken into consideration. A circumstance never put to the accused in this examination should not be used against him.
The law: Section 351 B.N.S.S.
- Section 351(1)(a): the court may put questions to the accused at any stage, without warning him beforehand.
- Section 351(1)(b): the court shall question the accused generally on the case after the prosecution witnesses have been examined and before he is called on for his defence. Proviso: in a summons-case where the court has dispensed with his personal attendance, it may also dispense with this examination.
- Section 351(2): no oath is given to the accused.
- Section 351(3): the accused is not liable to punishment for refusing to answer or for giving false answers.
- Section 351(4): his answers may be considered in that inquiry or trial, and may be used for or against him in another inquiry or trial for any other offence the answers tend to show he committed.
- Section 351(5): the court may take help from the Prosecutor and Defence Counsel in preparing questions, and may accept a written statement from the accused as sufficient compliance.
Leading case
Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Supreme Court of India, 17 July 1984 (S. Murtaza Fazal Ali, A. Varadarajan and Sabyasachi Mukharji, JJ.). In a murder case resting on circumstantial evidence, the Court found that many circumstances relied on by the High Court had never been put to the accused in his examination under Section 313 CrPC. Following earlier decisions, it held that such circumstances must be completely excluded from consideration, because the accused had no chance to explain them. The appellant was given the benefit of doubt and acquitted.
Examination of the accused and evidence on oath compared
| Point | Examination under Section 351 | Accused as defence witness (Section 353) |
|---|---|---|
| Who starts it | The court, as a duty | Only on the accused's own written request |
| Oath | No oath | Evidence on oath |
| Cross-examination | None | Can be cross-examined |
| Purpose | To let him explain circumstances against him | To give evidence in disproof of the charge |
A prosecution witness says Armaan was seen near the scene of a burglary at midnight. Before Armaan is called on for his defence, the court asks him about this. Armaan says he was walking home from his night shift. The court weighs this explanation with the rest of the evidence. If the court had never asked Armaan about his presence near the scene, it should not rely on that circumstance to convict him.
Current law note
Section 351 B.N.S.S. reproduces Section 313 of the old CrPC without change in substance, including sub-section (5), which was added to Section 313 by the CrPC (Amendment) Act, 2008 (5 of 2009). Cases decided under Section 313 CrPC, such as Sharad Birdhichand Sarda, therefore remain useful for Section 351.
Exam point
Section 351 B.N.S.S. (old Section 313 CrPC): every incriminating circumstance must be put to the accused; no oath, no punishment for silence or false answers, and a circumstance not put to him is excluded (Sharad Birdhichand Sarda, 1984).
