Examination of the Accused by the Court Section 351

Section 351, BNSS 2023

(1) 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;

(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:

Provided 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).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(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.

(5) The Court may take help of the Prosecutor and Defence Counsel in preparing relevant questions, and may permit the filing of a written statement by the accused as sufficient compliance with this section.

📖 Nar Singh v. State of Haryana, (2015) 1 SCC 496

Facts: The accused was convicted on the basis of circumstances some of which had not been put to him when he was examined under the provision corresponding to section 351. The Supreme Court considered the consequence of such an omission and the course an appellate court should take.

Held: The Court held that the omission to put a material circumstance to the accused is a serious irregularity, but that it does not vitiate the trial automatically: the question in every case is whether the omission has prejudiced the accused and caused a failure of justice. It set out the approach an appellate court should take. Where the omission is not material, or where the accused had full notice of the circumstance and an opportunity to meet it, the conviction may stand. Where the circumstance is material and the accused was prejudiced, the appellate court may exclude that circumstance from consideration and see whether the remaining material sustains the conviction; or, where that is not a satisfactory course, it may remand the matter to the trial court so that the accused may be examined afresh on the omitted circumstance and the case decided again. An acquittal follows only where, after excluding the circumstance, the remaining material cannot sustain the conviction. The Court emphasised that the objection should be raised at the earliest opportunity, when it can still be cured.

Ratio: The omission to put a material circumstance is a serious irregularity but does not automatically vitiate the trial. The court asks whether prejudice resulted, and may exclude the circumstance or remand for a fresh examination.

📖 Reena Hazarika v. State of Assam, (2019) 13 SCC 289

Facts: The accused had offered an explanation in her examination under the provision corresponding to section 351, and the courts below convicted her without considering that explanation or dealing with it in the judgment.

Held: The Supreme Court held that the examination of the accused is not a mere procedural formality and that the section is founded on the fundamental principle of a fair trial. It follows that where an accused offers an explanation in that examination, the Court is bound to consider it: the statement cannot be brushed aside, and the judgment must deal with the explanation and say why it is accepted or rejected. The Court held that a plausible or reasonable explanation, if the prosecution has not excluded it, may be sufficient to displace the prosecution case, particularly in a case resting on circumstantial evidence where the accused offers an account consistent with innocence. It held that an examination conducted and then ignored is as much a failure of the section as one not conducted at all, and set aside the conviction.

Ratio: The examination is not a procedural formality. Where the accused offers an explanation the Court is bound to consider it and to deal with it in the judgment; a plausible explanation the prosecution has not excluded may displace its case.

⚠ The four requirements in practice

Each material circumstance, separately and distinctly. An omnibus question — “the prosecution witnesses have deposed against you, what do you say?” — does not satisfy the section, because it does not tell the accused what he is being asked to explain.

In a form he can understand. The object is to enable him personally to explain. A question in technical language, or one put through an interpreter who does not convey it, defeats the purpose.

The explanation must be considered. Where he answers, the judgment must deal with what he said.

And the omission is curable at the trial. Clause (a) permits the Court to put questions at any stage, so an omission noticed while the trial is still running can be repaired at once. That is why the objection is worth far more when taken then than when taken first in appeal.

The position stated shortly

1. Section 351 exists for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. The purpose is stated in the section and governs its application.

2. Clause (a) is discretionary: the Court may at any stage, without previously warning the accused, put such questions as it considers necessary.

3. Clause (b) is mandatory: the Court shall, after the prosecution witnesses have been examined and before he is called on for his defence, question him generally on the case.

4. In a summons case where personal attendance has been dispensed with, the Court may also dispense with the examination under clause (b).

5. No oath is administered, and the accused incurs no punishment by refusing to answer or by giving false answers.

6. The answers may be taken into consideration, and put in evidence for or against him in another trial for an offence they tend to show he committed.

7. Sub-section (5) permits the Court to take the help of the Prosecutor and Defence Counsel in preparing the questions, and to accept a written statement as sufficient compliance.

8. Each material circumstance must be put separately and distinctly, in a form the accused can understand. An omnibus question does not satisfy the section.

9. Where the accused offers an explanation, the Court is bound to consider it and to deal with it in the judgment. A plausible explanation the prosecution has not excluded may displace its case: Reena Hazarika.

10. An omission to put a material circumstance is a serious irregularity but does not automatically vitiate the trial. The court asks whether prejudice resulted, and may exclude the circumstance or remand for a fresh examination: Nar Singh.