Vaishnavi EP
Introduction
The Indian legal system rests on an adversarial model, wherein, the two parties are placed on an equal footing in fighting for their case and finding out the Judicial Truth. Section 313 of the Code of Criminal Procedure (herein referred to as the CrPC) promises this basic provision of providing the accused with a fair trial. Section 313 of the CrPC, 1973, grants the power to the courts to examine the accused.[1] It lays down the power for the trial court to put out questions to the accused to explain any outstanding incriminating circumstances. The recent judgment of Indrakunwar v. The State of Chhattisgarh allows the trial court under section 313 of CrPC to have an opportunity to inspect the “aspects required to adjudicate in a criminal matter”. However, it set an essential precedent that “such duty cannot unreasonably and unwarrantedly step over the fundamental right of privacy”. This article discusses section 313 of CrPC at length and how the recent judgment has moulded it for the better.
Section 313 of the Criminal Procedure Code
This section of the CrPC meets the requirements of the principle ‘audi alteram partem’, which means “listen to the other side”. The accused is put in a direct dialogue with the court, where the accused is given a chance to explain any piece of evidence found against him.[2] While the answers provided by the accused are not conclusive, they will be taken as an aid to the evidence against the accused.[3] Whatever questions the Court considers necessary for the trial are put to the accused.[4] This section provides a chance for the accused to tell his version of the truth and defend the allegations against him.[5] The statement is not treated as evidence under section 3 of the Evidence Act of 1872 as it is administered without oath.[6] Through separate and simple questions, each material circumstance is presented before the accused such that the questioning is fair and framed.
However, what happens if the questions put up by the court do not wish to be answered by the accused?
In Phula Singh v State of Himachal Pradesh, it was held that when the trial court exercises its duty under section 313 of CrPC of examination, the accused has a right to remain silent. [7]This right is deeply entrenched in the fundamental rights of the accused promised under article 20(3) of the constitution. Nevertheless, Section 313 remains a mandate to be followed by the court irrespective of whether the accused wishes to explain the incriminating circumstances against him or not.[8]
Adverse Inference of the right to remain silent
Although the accused has a right to remain silent, the court gains a right to draw adverse inferences from such actions.[9] Such entitlement is valid when the accused is in denial of the circumstances against him and provides no explanation for it. The court in Raj Kumar Singh v. State of Rajasthan held that adverse inference can be held against the accused only if “the incriminating materials stood fully established and the accused cannot furnish any explanation for the same”. [10] So, the established incriminating material in the prosecution’s evidence must be airtight with no room for doubt. Where the chain of causation is clear and unbroken and points the accused in a case where the accused cannot defend it, their silence could be used to draw an adverse inference. However, the silence of the accused does not fill the gap in the prosecution's evidence.[11] The right to remain silent is provided so that the accused is not forced to become a witness against himself; it cannot be used as evidence against the accused. The adverse inference drawn from such silence would not deduce the guilt of the accused.
The right against self-incrimination entrenched with privacy
To balance out the duty imposed on the court under section 313 of CrPC, the right against self-incrimination has been promised by various provisions in different stages of a criminal proceeding. Section 161(2) prevents a person from being forced to answer questions which would expose them to a criminal charge during questioning by a police.[12] Section 315(1)(b) furthers this protection by not drawing an adverse inference when the accused refuses to appear as a witness or lead evidence.[13] Article 20(3), a fundamental right, enforces the right against self-incrimination to the accused. [14]This protection is entrenched in the accused’s rights to life, privacy and dignity, devised to prevent torture and the violation of the accused’s bodily integrity. Therefore, the right to silence under section 313 is based on protecting human dignity and expressive freedom.
Indrakunwar v. State of Chhattisgarh
The judgement of Indrakunwar v. State of Chhattisgarh necessitates the discussion on section 313. The facts of the case are as follows: The convict had conceived a child upon having sexual relations with a co-villager. After giving birth to this child, she allegedly threw the baby into a small water body. She was sued for the same. In the trial court proceedings, under section 313, she had admitted that she was pregnant. However, the trial court inferred from her admission of pregnancy and the fact that she was living alone that she murdered her child and, based on that, proceeded to hold her guilty.[15] The Supreme Court criticised the trial court’s decision of finding the convict guilty, which was based on weak reasoning since no solid evidence aided that conclusion. Sketchy and general observation, that it was the mother who killed her baby to conceal her sexual relations with a man outside marriage, rooted in gender identities and cultural stereotypes by the trial court, was looked down upon by the SC. The Supreme Court propped up questions about whether the convict-appellant had a right of privacy not to disclose or deny the prosecution any relationship with the deceased child and her partner, the specifics of her miscarriage and pregnancy.[16] The question of confidentiality became quite relevant, considering it was a woman who had an inherent right to privacy regarding private matters of bodily and psychological integrity. The court quoted the case of Shafin Jahan v. Asokan K.M., where it was held that the choice of a partner, whether outside marriage or inside marriage, lay within a core of privacy. K.S Puttaswamy v. Union of India was referred to for emphasis on the importance of privacy as the foundation of liberty. The thoughts and behavioural patterns intimate to an individual are meant to find space in the private sphere of an individual, separated from social expectations. Discussions were held at length to finally point out that the right to privacy is inviolable, which was laid to waste by both the lower courts before. She had the absolute right to remain about these private matters and not to have adverse inferences drawn upon that which would be conclusive in determining her guilt.
Right to Privacy v. duty of disclosure
Section 313 of CrPC can be misused to draw incriminating statements from the accused.[17] The accused’s refusal to exercise this power should not lead to adverse consequences for them. It remains relevant to reproduce Article 20(3) for further discussion.
“No person accused of any offence shall be compelled to be a witness against himself”.
As discussed in the article, the accused, in compliance with article 20(3), has a right to remain silent to avoid incriminating himself under section 313 of CrPC.
In the past, section 313 has been installed with safeguards which provide that adverse inferences do not become a substitute for proof.[18] Various judgements have already held that adverse inferences would hold water only if fully established evidence aids it. However, confusion ensued when certain judgements went against that principle. For example, the supreme court in Mani Kumar Thapa v. State of Sikkim held silence of the accused as the missing link to the insufficient evidence by the prosecution. [19]
Further, the right of presumption of innocence, although a recognised right in democratic legal systems, is yet to be recognised as a fundamental right in the criminal courts of India. Therefore, the scales are already tilted in favour of the state, which has enormous power over the accused and can jeopardise an individual’s liberty over efforts of truth-seeking and prosecuting efficiently.
Therefore, within this confusion, there was much potential for violating the right to privacy and the rights promised under article 20(3) of the constitution in courts exercising their duty under section 313 of CrPC.
In an already skewed battle of criminal proceedings where an individual is pitted against the state, the Indra Kunwar v. State of Chhattisgarh finally set a precedent where the line of privacy is not to be crossed over the requirement of disclosures under section 313 of CrPC.
[1] The Criminal Procedure Code, 1973 §313
[2] Sanatan Naskar and Another v. State of West Bengal AIR 2010 SCC 3570
[3] The Criminal Procedure Code, 1973 §313(4)
[4] The Criminal Procedure Code, 1973 §313 (a)
[5] Dharnidhar v. State of U.P & Others 2010 AIR SCW 5658
[6] Dehal Singh v. State of Himachal Pradesh AIR 2010 SC 3594
[7] Phula Singh v. State of Himachal Pradesh, AIR 2014 SC 1256
[8] Right to Remain Silent: Implication for Section 313 CrPC P39A https://p39ablog.com/2022/09/right-to-remain-silent-implications-for-section-313-crpc/
[9] Sanatan Naskar and Another v. State of West Bengal AIR 2010 SCC 3570
[10] Raj Kumar Singh v. State of Rajasthan AIR 2013 SC 3150
[11] Munish Mubar v. State of Haryana, AIR 2013 SC 912
[12] The Criminal Procedure Code, 1973 §161(2)
[13] The Criminal Procedure Code, 1973 §315 (1)(b)
[14] The Constitution of India, 1950, Art. 20(3)
[15] LiveLaw, Requirement for Disclosures in Criminal Trial Cant Step Over Right to Privacy: Supreme Court Acquits Woman Accused of Killing Newborn available at https://www.livelaw.in/top-stories/requirement-for-disclosures-in-criminal-trial-cant-step-over-right-to-privacy-supreme-court-acquits-woman-accused-of-killing-newborn-241108?infinitescroll=1 (Last visited at Nov 14, 2023)
[16] Indrakunwar v. State of Chhattisgarh 2023 INSC 934
[17] Project 39A, Right to Remain Silent: Implications for Section 313 CrPC, available at https://p39ablog.com/2022/09/right-to-remain-silent-implications-for-section-313-crpc/ (last visited at Nov 14, 2023)
[18] Shankerlal Gyarasilal v. State of Maharashtra 1981 AIR 765
[19] Mani kumar Thapa v. State of Sikkim 2002 CriLJ 876