Section 313 CrPC vs Section 351 BNSS — Examination of the Accused

In India, Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 313 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The text is unchanged apart from the heading ("Power to examine accused") and "summons case" in the proviso; the court must still put the evidence against the accused to him before his defence.

At a glance

This is a procedural provision with no punishment and no First Schedule classification.

What changed

• Minor edit — heading: the Gazette marginal heading and the official BNSS text read "Power to examine accused." The CrPC heading read "Power to examine the accused."
• Minor edit — proviso to sub-section (1): "in a summons-case" becomes "in a summons case". The definition clause in Section 2(1)(x) BNSS still spells the term "summons-case".
• Identical — sub-sections (1)(a), (1)(b), (2), (3), (4) and (5): the operative words are the same. Sub-section (5) was inserted into Section 313 by Act 5 of 2009 with effect from 31 December 2009; in the BNSS it is part of the enacted text.
• Not added: Section 351 does not mention audio-video electronic means, although other BNSS provisions do (for example Section 262(2), on examining the accused before discharge, and Section 251(2), on explaining the charge). Section 530 BNSS provides that trials, inquiries and proceedings under the Sanhita "may be held in electronic mode". Whether that reaches the Section 351 examination is not stated in either section.

Statutory text (relevant extract)

Extract, Section 313(1) CrPC (repealed from 1 July 2024):

(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…

Extract, Section 351(4) and (5) BNSS:

(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.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

How it works — the steps

1. Purpose. The examination is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him" (Section 351(1)). It is the court's duty; the prosecution does not examine the accused.
2. Questions at any stage — discretionary. Under clause (a) the court "may" question the accused at any stage and need not warn him first.
3. Questions after the prosecution case — mandatory. Under clause (b) the court "shall" question him generally on the case once the prosecution witnesses have been examined and before he is called on for his defence.
4. Summons-case exemption. In a summons case where the Magistrate has dispensed with the accused's personal attendance (Section 228 BNSS allows this and lets him appear by his advocate), the court may also dispense with the clause (b) examination. Section 2(1)(x) BNSS defines a summons-case as a case relating to an offence that is not a warrant-case.
5. No oath, no penalty. No oath is administered (sub-section (2)); refusing to answer or answering falsely is not punishable (sub-section (3)). This sits alongside Article 20(3) of the Constitution: "No person accused of any offence shall be compelled to be a witness against himself."
6. Use of the answers. The answers may be considered in the same trial and may be used for or against the accused in another trial for another offence they tend to show (sub-section (4)).
7. Preparing the questions. The court may take help from the prosecutor and defence counsel in preparing the questions and may accept a written statement as sufficient compliance (sub-section (5)).
8. Giving evidence is separate. Section 351 is not evidence on oath. If the accused wishes to give sworn evidence in his defence, that is under Section 353 BNSS (formerly Section 315 CrPC), on his own written request.

What this means in practice

For the trial judge

• Put each material circumstance against each accused separately — every witness statement, document, recovery, forensic report and dying declaration the prosecution relies on. Raj Kumar @ Suman (below) holds that the court must ordinarily leave out circumstances not put.
• In cases with many witnesses, use sub-section (5): circulate the draft questions to the prosecutor and defence counsel before the examination. Raj Kumar and Aejaz Ahmad Sheikh both advise this.

For the prosecutor

• Check the question list against the evidence before the examination. A circumstance that is not put may be excluded from consideration, and after a long delay an appellate court may decline to remand (Aejaz Ahmad Sheikh, para 23).

For the accused and defence advocate

• The accused may explain, deny or stay silent; sub-section (3) protects him from punishment for refusing to answer or answering falsely. On a reading of sub-section (4), an answer may still be used against him in the same trial or another trial, so explanations should be considered with care.
• Where the accused cannot attend, an application under sub-section (5) to file a written statement is the statutory route. Basavaraj R. Patil (below) set out an earlier questionnaire procedure for exceptional hardship before sub-section (5) existed.
• On appeal, identify every circumstance relied on by the trial court that was not put to the accused and show prejudice.

Judgments that still matter

Sharad Birdhichand Sarda v. State of Maharashtra, [1985] 1 S.C.R. 88 (1984 INSC 121) — 17 July 1984. A three-Judge Bench (S. Murtaza Fazal Ali, A. Varadarajan and Sabyasachi Mukharji JJ.) acquitted a husband convicted of poisoning his wife. In the leading opinion, Fazal Ali J. held that several circumstances relied on by the High Court had not been put to the accused, and that "the circumstances which were not put to the appellant in his examination under s.313 of the Criminal Procedure Code have to be completely excluded from consideration". The report has no paragraph numbers. Section 351(1)(b) BNSS repeats the duty that gives rise to this rule.

Basavaraj R. Patil v. State of Karnataka, [2000] Supp. 3 S.C.R. 658 (2000 INSC 477) — 11 October 2000. A three-Judge Bench divided on whether the accused must personally answer the questions in a warrant case. The majority (Thomas J.) held that "shall" in clause (b) is obligatory on the court "when it is for the benefit of the accused", but that in exceptional hardship an accused already exempted from personal appearance may, on an affidavit, answer a court questionnaire through his advocate. Sethi J. dissented, holding that the section does not envisage examination of counsel in place of the accused. The report has no paragraph numbers. The case preceded sub-section (5), which now expressly allows a written statement.

Raj Kumar @ Suman v. State (NCT of Delhi), [2023] 5 S.C.R. 754 (2023 INSC 520) — 11 May 2023. Abhay S. Oka and Rajesh Bindal JJ. set aside a murder conviction resting on a single circumstance that was never put to the accused. The Court summarised the law (para 16): the trial court must put each material circumstance "specifically, distinctively and separately"; failure is "a serious irregularity" that vitiates the trial if it is shown to have prejudiced the accused; a curable defect may be cured by the appellate court questioning the accused or by remand, with the passage of time a consideration. It advised judges to use sub-section (5) in cases with many witnesses (para 21), and held remand unjust on the facts (para 23).

Aejaz Ahmad Sheikh v. State of Uttar Pradesh, [2025] 4 S.C.R. 1507 (2025 INSC 529) — 22 April 2025. A three-Judge Bench (Abhay S. Oka, Pankaj Mithal and Ahsanuddin Amanullah JJ.) upheld an acquittal in a case of four deaths by burning. The dying declarations had not been put to the accused, so "the evidence of dying declaration will have to be kept out of consideration" (para 22); remand after more than 14 years was unjust (para 23). The Court added that, in an appeal against conviction, the High Court "must examine whether there is a proper statement of the accused recorded under Section 313 of CrPC (Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023)" at the earliest stage (para 28).

Which law applies to your case

Section 531(2)(a) BNSS provides that any trial, inquiry or appeal pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force"; on a reading of that text, the accused in such a trial is examined under Section 313 CrPC. Trials begun on or after 1 July 2024 use Section 351 BNSS. Because the operative words are the same, the principles in the judgments above apply to both. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 313 CrPC? Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 313 of the Code of Criminal Procedure, 1973 from 1 July 2024. Its five sub-sections repeat Section 313 word for word, except that the heading drops 'the' and the proviso to sub-section (1) writes 'summons case' without a hyphen.

Is the accused's statement under Section 351 BNSS given on oath? No. Section 351(2) BNSS says no oath shall be administered to the accused when he is examined under sub-section (1), as Section 313(2) CrPC did. Under Section 351(3), the accused is not liable to punishment for refusing to answer or for giving false answers.

When must the court examine the accused under Section 351 BNSS? Under Section 351(1)(b), the court must question the accused generally on the case after the prosecution witnesses have been examined and before he is called on for his defence. Under Section 351(1)(a), it may also put questions at any stage without warning him. In a summons case where personal attendance has been dispensed with, the court may also dispense with the clause (b) examination.

What happens if a circumstance against the accused is not put to him? In Raj Kumar @ Suman v. State (NCT of Delhi) (2023 INSC 520) the Supreme Court summarised that the court must ordinarily leave out material circumstances not put to the accused, and that the failure vitiates the trial if it is shown to have prejudiced him (para 16). Section 351 BNSS repeats Section 313 CrPC, so on a reading of the text the same principles apply.

Can the accused file a written statement instead of answering questions? Section 351(5) BNSS allows the court to permit the accused to file a written statement as sufficient compliance with the section, and to take the help of the prosecutor and defence counsel in preparing the questions. The same power was added to Section 313 CrPC as sub-section (5) with effect from 31 December 2009.

Can the accused's answers be used against him? Section 351(4) BNSS provides that the answers may be taken into consideration in the same inquiry or trial, and put in evidence for or against the accused in any other inquiry or trial for any other offence that the answers tend to show he has committed. Section 313(4) CrPC said the same.

What should the High Court do if the Section 351 statement is defective? In Aejaz Ahmad Sheikh v. State of Uttar Pradesh (2025 INSC 529) the Supreme Court, supplementing a suggestion made in Raj Kumar, stated that in an appeal against conviction the High Court must examine at the earliest stage whether a proper statement under Section 313 CrPC or Section 351 BNSS was recorded (para 28). Any defect can then be cured by the High Court recording a further statement or directing the trial court to do so.

Does Section 313 CrPC or Section 351 BNSS apply to a trial that began before 1 July 2024? Section 531(2)(a) BNSS provides that a trial or inquiry pending immediately before 1 July 2024 continues under the Code of Criminal Procedure as if the BNSS had not come into force. On a reading of that text, the accused in such a trial is examined under Section 313 CrPC; because the two sections have the same operative words, the practical content is the same.

Related

• Section 319 CrPC vs Section 358 BNSS — summoning additional accused
• Section 164 CrPC vs Section 183 BNSS — confessions and statements
• Dying declaration: IEA 32 vs BSA 26
• Witness and accused by video conferencing — BNSS vs CrPC
• Timelines for investigation and trial
• CrPC to BNSS master table
• Sections 272–283 CrPC vs Sections 307–318 BNSS — Mode of Taking and Recording Evidence

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(x), 228, 351, 352, 353, 530 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 2(w), 313 (with the Act 5 of 2009 footnote), 314 and 315.
• Constitution of India: Article 20(3).
• Judgments read in full text: Sharad Birdhichand Sarda v. State of Maharashtra (1985_1_88_198_EN.md); Basavaraj R. Patil v. State of Karnataka (S_2000_3_658_684_EN.md); Raj Kumar @ Suman v. State (NCT of Delhi) (2023_5_754_771_EN.md); Aejaz Ahmad Sheikh v. State of Uttar Pradesh (2025_4_1507_1521_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.