Examination of the Accused Under Section 351 BNSS (Erstwhile Section 313 CrPC) Explained

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

At the close of the prosecution evidence in every criminal trial, the law gives the accused a distinct opportunity that no other stage of the trial provides — a chance to personally explain, in his own words, the circumstances that have come up against him in the evidence. This is done not through a witness box and not under oath, but through a direct examination by the court itself. This article explains Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), its predecessor Section 313 of the Code of Criminal Procedure, 1973 (CrPC), the safeguards built into the provision, and what happens when an accused stays silent, gives an evasive answer, or gives an answer that turns out to be false.

Section 351 BNSS is the direct successor to Section 313 CrPC. A side-by-side reading of the two provisions on Indian Kanoon’s bare-Act pages shows that the text of sub-sections (1) to (5) — including the 2008 CrPC amendment permitting a written statement in lieu of oral examination — has been carried forward into the BNSS essentially unchanged, with only the section number renumbered. Case law developed under Section 313 CrPC therefore continues to apply directly to Section 351 BNSS.

Statutory Framework

Section 351(1) BNSS 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, the Court —

(a) may, at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; and
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.

A proviso to sub-section (1) states that in a summons case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

The remaining sub-sections build in the safeguards that make this examination fundamentally different from the examination of a witness:

Sub-section (2): No oath shall be administered to the accused when he is examined under sub-section (1).
Sub-section (3): The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
Sub-section (4): The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Sub-section (5): The Court may take the help of the Prosecutor and Defence Counsel in preparing relevant questions to be put to the accused, and the Court may permit the filing of a written statement by the accused as sufficient compliance with the section.

Sub-section (5) traces back to the Code of Criminal Procedure (Amendment) Act, 2008, which introduced the option of a written statement so that a lengthy oral examination is not the only route to compliance. The BNSS retains this option.

Purpose of the Examination

The examination under Section 351 BNSS (and, before it, Section 313 CrPC) is not a formality and not an opportunity for the prosecution to extract a confession. Its sole object is to give the accused a fair chance, in his own voice, to explain the incriminating circumstances that the evidence on record has thrown up against him — so that the court, before deciding the case, has heard the accused’s own version on each such circumstance rather than deciding the matter solely on one-sided testimony.

This is why clause (b) makes the general examination mandatory (“shall”) once the prosecution evidence closes, while clause (a) leaves the court free to put clarificatory questions at any earlier stage. It is also why sub-section (2) dispenses with the oath — the accused is not a witness testifying against or for himself in the ordinary sense, and is not exposed to a perjury prosecution for what he says here.

Effect of an Unexplained, Evasive, or False Answer

Sub-section (3) makes clear that refusing to answer, or giving a false answer, does not by itself expose the accused to punishment — there is no separate offence for silence or falsehood at this stage. But sub-section (4) equally makes clear that whatever the accused does say may be taken into consideration by the court and used in evidence for or against him. Read together, the two sub-sections mean that while an accused cannot be penalised merely for staying silent or lying, the court is entitled to weigh a false, evasive, or absent explanation for an incriminating circumstance as one factor — along with the rest of the evidence — in deciding what actually happened. It is not itself proof of guilt, and it cannot substitute for evidence the prosecution has failed to lead; it operates only as an additional circumstance the court may weigh against the rest of the record.

The Supreme Court’s decision in Reena Hazarika v. State of Assam underlines the other side of this exchange: the duty runs both ways. The Court held that where an accused takes a defence in his Section 313 statement after the prosecution evidence closes, the trial court is duty-bound under sub-section (4) to actually consider that explanation, and that “if there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated.” In other words, an accused’s explanation cannot be treated as a formality to be recorded and then ignored while deciding the case.

At the same time, not every lapse in how the examination is conducted is fatal to the trial. In Nar Singh v. State of Haryana, the Supreme Court held that an omission by the trial court to put a particular incriminating circumstance to the accused under Section 313 does not, by itself, automatically vitiate the trial — “any omission on the part of the court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused.” The accused must show that the omission actually caused him prejudice. Where such prejudice is shown, an appellate court may put the omitted circumstance to the accused (including through his counsel) rather than ordering a fresh trial, or may remand the matter for a fresh examination if that is not sufficient to cure the defect.

Together, these two decisions frame the boundaries of Section 351/313: the court must genuinely engage with what the accused says, but a technical or non-prejudicial gap in the questioning will not, without more, undo a conviction otherwise supported by the evidence.

Practical Points

The examination is not evidence-in-chief and not cross-examination; the accused is not a witness and cannot be compelled to answer.
Because no oath is administered under sub-section (2), an accused’s statement here does not expose him to a separate prosecution for perjury.
Every material circumstance appearing against the accused in the evidence should, as far as possible, be put to him so that he has a genuine opportunity to respond — this is the basis on which an omission may later be argued to have caused prejudice.
The 2008 amendment (retained as sub-section (5)) allows a written statement filed by the accused to serve as sufficient compliance, an option that continues to be available under the BNSS.
Silence or a false answer is not an offence by itself, but it can count against the accused as one of the circumstances the court weighs — it does not, on its own, prove guilt.

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