The question in Section 313(1)(b) is mandatory. It imposes a heavy duty upon the court to exercise greater care in ensuring that the incriminating circumstances are put to the accused and that his response is solicited. It is the duty of the court to examine the accused and seek his explanation regarding the incriminating material appearing in evidence, regardless of how weak or scanty the prosecution evidence may be.

Even in cases where the court has dispensed with the personal attendance of the accused under Section 205(1) or Section 317 of the Code, the court cannot dispense with the examination of the accused under clause (b) of Section 313 of the Code, as such examination is mandatory. If there are any incriminating circumstances arising from any event, circumstance, or documentary evidence, questions regarding those circumstances must be put to the accused, seeking his reply or explanation in his statement under Section 313 CrPC.

If this is not done, such circumstances must be excluded, and in no case can an order to the prejudice or conviction of the accused be passed based on such circumstances. Ref: Smt. Kaushalya Devi vs State of Rajasthan and Others, 2008 CrLJ 2101 (Raj).

The word "may" in clause (a) of sub-section (1) of Section 313 of the Code indicates that even if the court does not put any questions under that clause, the accused cannot raise any grievances about it.

However, if the court fails to put the necessary questions under clause (b) of the sub-section, it would result in a disadvantage to the accused, who can legitimately claim that no evidence, without being given the opportunity to explain, can be used against him. Ref: Keya Mukherjee v. Magma Leasing Limited & Anr., AIR 2008 SC 1807 (2008) 2 MLJ (Crl) 654 (SC).

Written By: S Kundu & Associates
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