The general rule is that the accused must answer questions by being personally present in court. Only in exceptional circumstances can this rule be departed from or dispensed with, as held in K. Anbazhagan v. Superintendent of Police (2004) 3 SCC 767: AIR 2004 SC 524: 2004 Cr LJ 583. However, in S. Basavaraj (2000) 8 SCC 740 and Sabro Parsuram (2004) 12 SCC 189: AIR 2004 SC 5068, it has been reiterated that the court must examine the accused personally. Examination under Section 313 must be of the accused, not of their lawyer, even when personal attendance of the accused is dispensed with.

In Bibhuti v. State AIR 1969 SC 381: (1969) 2 SCR 104: 1969 Cr LJ 654, where the accused is a company or other juridical person, it cannot be examined personally, and the court may examine a director or another agent. See also Suraj v. State Cr LJ 1346: (1972) 1 Cut WR 733: 38 Cut LT 506. However, Basavaraj v. State (2000) 8 SCC 740 takes a different view from Bibhuti.

There are conflicting views on whether counsel for the accused can give a proxy for the accused. See Keya Mukherjee v. Magma Leasing Ltd. (CC 447), where the ratios of decisions in Basavaraj v. State (2008); Usha v. Raj (1993) 3 SCC 208; Chandu v. Puram 1988 Supp SCC 570; Mate (1973) 2 SCC 793; Bibhuti v. State AIR 1969 SC 381; Jai Dev v. State AIR 1963 SC 612, and Hate Singh v. State AIR 1953 SC 468 were considered. However, this question has largely lost importance with the insertion of sub-section (5).

While it is generally the prosecution's duty to prove its case beyond reasonable doubt, there may be circumstances requiring the accused to offer some explanation to absolve themselves from suspicion of the crime (Ujjagar Singh v. State (2007) 13 SCC 90; Romappa v. State (2007) 13 SCC 31), where no explanation was offered by the accused.

Examination of the lawyer would not suffice for compliance with the mandate of the said provision (Usha v. Raj AIR 1993 SC 2090: (1993) 3 SCC (Cr) 824: 1993 Cr LJ 2669).

Regarding whether the accused can be confronted or cross-examined under Section 313:

• Section 313: The trial court cannot put anything to the accused that is not plainly available in the evidence. An accused cannot be subjected to cross-examination (Shri Ram AIR 1975 SC 175: (1975) 3 SCC 495: 19). See also Kalpanath Rai (1997) 8 SCC 732.
   
• An accused cannot be cross-examined during their examination under Section 313, as the burden is on the prosecution to establish its case. No adverse presumption can be raised for the failure of the accused to explain any circumstances appearing against them (Shri Ram AIR 1975 SC 175: 1975 Cr LJ 495; see Bishan v. State AIR 1975 SC 573).

Written By: S Kundu & Associates
Email: [email protected], Ph No: +9051244073