Statement of the Accused Right to Silence | BNSS 2023

The Statement of the Accused, the Right to Remain Silent and Competence as a Witness: Sections 351, 353 and 354 of the BNSS, 2023 and Article 20(3)

An accused person is the one participant in a criminal trial who knows what happened. The law has to decide how far it may use him as a source of information about his own case, and Indian criminal procedure answers with a scheme of four provisions that fit together closely.

Article 20(3) forbids compulsion: no person accused of an offence shall be compelled to be a witness against himself. Section 351 offers him an opportunity to explain — without oath, and without penalty for silence or falsehood. Section 353 lets him choose to give evidence on oath, but only on his own written request. And section 354 forbids anybody from inducing him either way.

1. The Four Provisions

Figure 1: Article 20(3) and sections 351, 353 and 354

Sections 353 and 354, BNSS 2023

Section 353(1). Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that — (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court, or give rise to any presumption against himself or any person charged together with him at the same trial.

Section 354. Except as provided in sections 343 and 344, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.

📖 Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, AIR 1961 SC 29

Facts: A person was required to answer questions and produce documents in the course of a statutory investigation into the affairs of a company, and claimed the protection of Article 20(3) on the footing that his answers might incriminate him. The question was who is a “person accused of any offence” for the purpose of the Article.

Held: The Supreme Court held that the protection of Article 20(3) is available only to a person accused of an offence, and that the expression means a person against whom a formal accusation has been made which in the normal course may result in a prosecution — typically the lodging of a first information report or the filing of a complaint. It is not enough that the person apprehends that he may in future be accused, or that the material he is required to furnish may later be used in a prosecution. A person examined in the course of a statutory investigation which is not itself a criminal proceeding, and against whom no accusation has been formally made, is not within the Article. The Court held that the protection attaches at the point of formal accusation and continues thereafter, and that the Article is directed at compulsion — the extraction of testimony against the will of the person — rather than at the use of information voluntarily given.

Ratio: Article 20(3) protects a person against whom a formal accusation has been made which may in the normal course result in a prosecution. Apprehension of a future accusation is not enough, and the Article is directed at compulsion.

2. The Examination under Section 351 and Evidence under Section 353

Figure 2: The two compared

These are the two ways in which an accused may put his own account before the Court, and they are constantly confused. The essential difference is that the section 351 examination is not evidence and carries no cross-examination, while evidence under section 353 is evidence and does.

Who initiates. The Court examines him under section 351, and must do so. He asks to be examined under section 353, and must do so in writing.
Oath. No oath under section 351. On oath under section 353.
Cross-examination. None under section 351: the prosecution does not cross-examine him on his answers. Under section 353 he is a witness and is liable to be cross-examined like any other.
Consequence of silence. Under section 351, no penalty — though silence or a false answer may become an additional link in a chain of circumstantial evidence. Under section 353, his failure to give evidence shall not be commented on and raises no presumption against him or a co-accused.
Status of what he says. Answers under section 351 are not evidence in the strict sense, though they may be taken into consideration and used in another trial under section 351(4). Evidence under section 353 is evidence in the case.

3. Silence and the Drawing of Inferences

📖 State of Maharashtra v. Suresh, (2000) 1 SCC 471

Facts: In a case resting on circumstantial evidence, the accused, when examined under the provision corresponding to section 351, offered a false explanation for a circumstance that called for an explanation. The question was what use, if any, a court may make of a false answer or of silence in such an examination.

Held: The Supreme Court held that a false answer given by the accused in his examination, or his failure to offer any explanation for a circumstance which is within his special knowledge and which calls for one, may be treated as a missing link or an additional link in the chain of circumstantial evidence. That is not a reversal of the burden of proof: the prosecution must still establish the circumstances it relies on, and those circumstances must be complete and consistent only with guilt. But where the prosecution has established a circumstance which the accused alone can explain, and he either says nothing or offers an explanation which is shown to be false, the Court may take that into account as a further circumstance against him. The Court emphasised that a false explanation cannot supply a missing link in a chain that is otherwise broken; it can only strengthen a chain that is otherwise complete.

Ratio: A false answer or an unexplained silence on a circumstance within the accused’s special knowledge may be treated as an additional link in a chain of circumstantial evidence. It cannot supply a link the prosecution has failed to establish.

⚠ The line that must be held

The prosecution must prove its case. The accused has no burden to explain anything, and section 351(3) expressly protects him from any punishment for staying silent or for lying.

What the decisions permit is narrow: where the prosecution has already established a circumstance which is within the accused’s special knowledge and which calls for an explanation, his silence or a demonstrably false explanation may be taken as an additional circumstance.

It cannot create a case. A false explanation cannot supply a link the prosecution never proved, and cannot convert an incomplete chain into a complete one.

And under section 353(b) the position is stricter still: where the accused declines to give evidence on oath, his failure shall not be made the subject of any comment by any party or the Court, and raises no presumption against him or a co-accused. Silence in the witness box is protected absolutely; silence under section 351 is protected from punishment but may, in the narrow circumstances above, be noticed.

4. Key Takeaways

The position stated shortly

1. Article 20(3): no person accused of any offence shall be compelled to be a witness against himself. It protects a person against whom a formal accusation has been made, and is directed at compulsion: Raja Narayanlal Bansilal.

2. Section 351 offers the accused an opportunity to explain: no oath, and no liability to punishment for refusing to answer or for giving false answers.

3. Section 353: the accused is a competent witness for the defence and may give evidence on oath in disproof of the charges against him or a co-accused.

4. But he shall not be called as a witness except on his own request in writing. Neither the prosecution nor the Court can put him in the witness box.

5. His failure to give evidence shall not be made the subject of any comment by any party or the Court, and shall give rise to no presumption against himself or a co-accused: section 353(b).

6. Section 354: except on a tender of pardon under sections 343 and 344, no influence by promise, threat or otherwise shall be used to induce him to disclose or withhold any matter within his knowledge.

7. The section 351 examination is not evidence and carries no cross-examination. Evidence under section 353 is evidence and the accused is liable to be cross-examined.

8. A false answer under section 351, or silence on a circumstance within the accused’s special knowledge, may be an additional link in a chain of circumstantial evidence: State of Maharashtra v. Suresh.

9. But it cannot supply a missing link. The prosecution must still prove its case, and the accused carries no burden to explain.

10. The four provisions form one scheme: he may not be compelled (Article 20(3)); he is offered a chance to explain (section 351); he may choose to testify, in writing and on his own request (section 353); and nobody may induce him either way (section 354).

5. Frequently Asked Questions

Can an accused be compelled to give evidence?

No. Article 20(3) forbids compelling a person accused of an offence to be a witness against himself, and section 353 provides that he shall not be called as a witness except on his own request in writing.

Who is a “person accused of an offence” for Article 20(3)?

A person against whom a formal accusation has been made which in the normal course may result in a prosecution — typically the lodging of an FIR or the filing of a complaint. Apprehension of a future accusation is not enough: Raja Narayanlal Bansilal v. Maneck Phiroz Mistry.

Can the Court comment on the accused’s failure to give evidence?

No. Section 353(b) provides that his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court, and shall not give rise to any presumption against himself or any person charged together with him.

Can a false answer under section 351 be used against him?

It may be treated as an additional link in a chain of circumstantial evidence, where the prosecution has established a circumstance within his special knowledge which calls for an explanation. It cannot supply a link the prosecution failed to prove: State of Maharashtra v. Suresh.

What is the difference between answering under section 351 and giving evidence under section 353?

Under section 351 the Court questions him, without oath, and he is not cross-examined; what he says is not evidence in the strict sense. Under section 353 he asks in writing to testify, gives evidence on oath, is liable to cross-examination, and what he says is evidence in the case.

What does section 354 forbid?

The use of any influence, by promise, threat or otherwise, to induce an accused person to disclose or withhold any matter within his knowledge — except a tender of pardon properly made under sections 343 and 344.

Related Topics

Examination of the Accused by the Court: Section 351, BNSS
Tender of Pardon to an Accomplice: Sections 343 to 345, BNSS
General Provisions as to Inquiries and Trials: Sections 337 to 366
Police Confession and Judicial Confession Distinguished
Statement Before a Magistrate: Section 183, BNSS
Right of the Accused to Legal Representation: Sections 340 and 341