Comparing Sec. 313 of Cr.P.

C with USA, UK, Australian and South African Laws

Introduction

Section 313 of the Code of Criminal Procedure, 1973, provides the Court with the power to
examine the accused. It reads,

“Power to examine the accused.

(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.”

It is based on the natural justice principle “audi alterem partem” which means “let the other
side be heard as well”. It provides a platform for a fair hearing and allows the accused to
explain their side of the case. This Section aims to establish a direct dialogue between the
accused and the Court as was held in Sanatan Naskar & Another v. State of West Bengal.

As the accused is not under oath when invoking this Section, they are not liable to be
punished if they refuse to answer or provide false answers, to the questions asked.

While exploring the limitations of this Section, we come across the case of State of Madhya
Pradesh v. Balu where the Trial Court had not taken the accused’s statement recorded under
Section 313 of the Cr.P.C into consideration and this was because the statement was deemed
inconsistent.

USA

Since courts in USA follow the adversarial system, the judge plays a passive role in the
proceedings and as a result, the Court is not directly involved in the questioning. Therefore,
the closest to Sec 313 of Cr.P.C in US laws is the Confrontation Clause or the Sixth
Amendment to the United States Constitution.

This states that in a criminal trial, the accused holds the right to be present at the trial and to
confront a witness against them. In essence, this embodies Section 313 of Cr.P.C as both are
means to achieve a fair hearing for the accused, although the methodology followed to reach
the common goal are not exactly the same.

UK

The United Kingdom, consisting of England, Scotland, Wales and Ireland, also have courts
that follow the adversarial system and have appropiate mechanisms to provide the accused
with the opportunity to be heard. In the case of Ridge v Baldwin, a chief constable who had
been dismissed, managed to get his dismissal declared void because he hadn’t been given the
chance to defend himself.

This rule of audi alterem partem had been established in the common law of the land right
from the 19th century. In the 1722 case of The King v Chancellor, it was noted that "the laws
of God and man both have given the party an opportunity to make his defence, if he has
any.... Even God himself did not pass sentence upon Adam before he was called upon to
make his defence."

Thus, this feature has been encapsulated in UK’s common law and is similar to Section 313
of the Cr.P.C as both work on the principle of audi alterem partem.

Australia

Australia, yet another country following the adversarial system, is party to the International
Covenant on Civil and Political Rights (ICCPR) and Article 14 of the Covenant speaks of the
right to fair trial and fair hearings. Article 14(1) is as follows,

“All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law.”

The accused also has the right to deny answering questions put forward to them as provided
under the right against self-incrimination. In the case of Reid v. Howard, it was noted that the
privilege against self-incrimination is “a basic and substantive common law right, and not
just a rule of evidence” and in Lee v New South Wales Crime Commission, it was stated that
the same reflects “the long-standing antipathy of the common law to compulsory
interrogations about criminal conduct.”

Upon examining the above information, it is evident that the opportunity for a fair trial with
adequate rights for the accused has been upheld by Australian courts, similar to the Section in
discussion in Indian laws.

South Africa

This is another country where the judges play a passive role during adjudication due to the
adversarial form of court proceedings. However, the accused’s right to a fair trial is retained
as was observed in the case of Melani v. Mathebula where it was held that during pre-trial
proceedings, the accused was not obliged to answer any questions directed towards them and
has the right to remain silent.

When bail proceedings are ongoing, the accused once again has the right against self-
incrimination where they do not have to answer any question that may be incriminating.

During the actual trial stage, the accused can, but is not obliged, to explain the plea. This has
been guaranteed under Section 115 of South Africa’s Criminal Procedure Act.

These facets of South African law are similar to the essence of Section 313 of India’s Cr.P.C.