Section 351 – Power to Examine Accused

Introduction

Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of the Court to examine the accused during an inquiry or trial.

The provision allows the Court to question the accused at any stage of the inquiry or trial for the purpose of enabling the accused to personally explain any circumstances appearing in the evidence against them.

Section 351 substantially corresponds to Section 313 of the Code of Criminal Procedure, 1973.

Meaning of Section 351

Section 351 gives the accused an opportunity to explain the circumstances and evidence appearing against them during the proceedings.

The Court may question the accused without administering an oath.

The purpose is not to obtain a confession from the accused, but to provide an opportunity to personally explain incriminating circumstances appearing in the evidence.

Power of the Court to Examine the Accused

Under Section 351, the Court may, at any stage of an inquiry or trial, without previously warning the accused, put such questions to the accused as the Court considers necessary.

The questions may be directed towards enabling the accused to personally explain any circumstances appearing in the evidence against them.

The Court may therefore ask the accused to explain facts or circumstances that have emerged during the prosecution evidence or other stages of the proceeding.

Examination Without Oath

The accused is examined without being administered an oath.

This is an important distinction between the examination of the accused and the examination of an ordinary witness.

The accused is not examined as a prosecution or defence witness merely because the Court questions them under Section 351.

Purpose of Examination

The primary purpose of examining the accused is to give them a fair opportunity to explain incriminating circumstances appearing against them.

For example, if evidence shows that:

• the accused was present at the scene of the offence;
• a particular document was recovered from the accused;
• a witness identified the accused; or
• certain circumstances connect the accused with the offence,

the Court may ask the accused to explain those circumstances.

Mandatory Nature in Certain Circumstances

Section 351 requires the Court to question the accused where the circumstances appearing in the evidence require an explanation from the accused.

The provision is therefore an important part of the criminal trial process.

The Court should ensure that material incriminating circumstances are put to the accused so that the accused gets a meaningful opportunity to explain them.

No Oath

The accused is not required to take an oath before answering questions under this provision.

This is because the examination is not the same as testimony given by a witness.

The purpose is to provide the accused with an opportunity to explain the evidence rather than to compel the accused to testify as a witness.

No Punishment for Refusing to Answer

The accused is not required to answer every question merely because the Court asks it.

The provision does not authorise the Court to administer an oath to the accused or compel the accused to give evidence as a witness against themselves.

The examination is intended to provide an opportunity for explanation and to ensure procedural fairness.

Consideration of Answers

The answers given by the accused may be taken into consideration by the Court during the inquiry or trial.

The Court may consider the explanation provided by the accused along with the other evidence available on record.

The answers therefore form part of the material that may be considered while determining the case.

Example

Suppose a prosecution witness states that a particular document was recovered from A and that the document connects A with the offence.

During the trial, the Court may ask A to explain the circumstances relating to the recovery of the document.

A may provide an explanation regarding how the document came into A’s possession.

The Court may consider that explanation along with the other evidence while deciding the case.

Object and Purpose

The main objectives of Section 351 are:

• to provide the accused with an opportunity to explain incriminating circumstances;
• to ensure procedural fairness;
• to enable the Court to obtain the accused’s explanation regarding the evidence;
• to assist the Court in properly appreciating the evidence; and
• to prevent a conviction from being based on circumstances that were never put to the accused for explanation.

Important Features

Court Can Question the Accused

The Court has the power to put questions to the accused regarding circumstances appearing in the evidence.

No Oath

The accused is examined without being administered an oath.

Personal Explanation

The provision gives the accused an opportunity to personally explain circumstances appearing against them.

Any Stage

The examination may take place at any stage of the inquiry or trial where the Court considers it necessary.

Evidence May Be Considered

The answers given by the accused may be considered by the Court in deciding the case.

Difference Between Accused and Witness

An accused person examined under Section 351 is not thereby converted into a witness.

A witness ordinarily gives evidence under oath and is subject to the rules governing examination and cross-examination.

The accused’s examination under Section 351 serves a different purpose: it allows the accused to explain circumstances appearing against them.

Protection Against Self-Incrimination

The provision must be understood consistently with the constitutional protection against self-incrimination under Article 20(3) of the Constitution of India.

An accused cannot be compelled to become a witness against themselves.

Section 351 therefore operates as a procedural opportunity for the accused to explain the evidence, rather than as a mechanism for forcing a confession.

BNSS and CrPC

Section 351 BNSS substantially corresponds to Section 313 of the Code of Criminal Procedure, 1973.

The underlying principle remains that the Court must provide the accused with an opportunity to personally explain circumstances appearing against them in the evidence.

Importance in Criminal Trial

The examination of the accused is an important safeguard in criminal proceedings.

A person facing criminal prosecution should know the circumstances relied upon against them and should have an opportunity to explain those circumstances before the Court reaches its decision.

Section 351 therefore supports the principles of:

• natural justice;
• fair trial;
• procedural fairness; and
• proper appreciation of evidence.

Topic at a Glance

• Section: 351, BNSS, 2023
• Subject: Power to examine accused
• Authority: Court
• Stage: Any stage of inquiry or trial
• Purpose: To allow accused to explain circumstances appearing against them
• Oath: No oath is administered
• Nature: Procedural safeguard
• Constitutional connection: Article 20(3)
• Corresponding CrPC provision: Section 313, CrPC

Quick Revision

• Section 351 BNSS deals with the examination of the accused by the Court.
• The Court may question the accused at any stage of an inquiry or trial.
• Questions are intended to allow the accused to personally explain circumstances appearing against them.
• The accused is examined without oath.
• The examination does not make the accused a witness in the ordinary sense.
• The answers given by the accused may be considered by the Court.
• The provision supports the right to a fair trial.
• It must operate consistently with the constitutional protection against self-incrimination under Article 20(3).
• Section 351 substantially corresponds to Section 313 of the CrPC.

ALSO READ: Section 350 – Expenses of complainants and witnesses

Conclusion

Section 351 BNSS provides an important procedural safeguard by giving the accused an opportunity to personally explain the circumstances appearing against them in the evidence. The Court may question the accused without administering an oath, and the explanation may be considered along with the other evidence. The provision plays an important role in ensuring a fair trial and preventing material circumstances from being relied upon against an accused without giving them an opportunity to explain them.