In Basavaraj R.Patil and others v. State of
Karnataka and others [(2000) 8 SCC 740], while
considering the question whether the accused can be
permitted to file his written submissions under Section
313 of the Cr. P.C, the Hon'ble Supreme Court has held as
follows:
“23. Section 243(1) of the Code enables the accused,
who is involved in the trial of warrant case instituted on
police report, to put in any written statement. When any
such statement is filed the Court is obliged to make it part
of the record of the case. Even if such case is not instituted
on police report the accused has the same right (vide
Section 247). Even the accused involved in offences
exclusively triable by the Court of sessions can also exercise
such a right to put in written statements [Section 233(2) of
the Code]. It is common knowledge that most of such
written statements, if not all, are prepared by the
counsel of the accused. If such written statements can
be treated as statements directly emanating from the
accused, hook, line and sinker, why not the answers
given by him in the manner set out hereinafter, in
special contingencies, be afforded the same worth.
24. We think that a pragmatic and humanistic
approach is warranted in regard to such special exigencies.
The word shall in clause (b) to Section 313(1) of the Code is
to be interpreted as obligatory on the Court and it should be
complied with when it is for the benefit of the accused. But
if it works to his great prejudice and disadvantage the
Court should, in appropriate cases, e.g., if the accused
satisfies the court that he is unable to reach the venue
of the court, except by bearing huge expenditure or
that he is unable to travel the long journey due to
physical incapacity or some such other hardship
relieve him of such hardship and at the same time
adopt a measure to comply with the requirements in
Section 313 of the Code in a substantial manner. How
this could be achieved?
25. If the accused (who is already exempted from
personally appearing in the Court) makes an application to
the court praying that he may be allowed to answer the
questions without making his physical presence in court on
account of justifying exigency the court can pass
appropriate orders thereon, provided such application is
accompanied by an affidavit sworn to by the accused himself
containing the following matters: (a) A narration of facts to
satisfy the court of his real difficulties to be physically
present in court for giving such answers. (b) An assurance
that no prejudice would be caused to him, in any manner, by
dispensing with his personal presence during such
questioning. (c) An undertaking that he would not raise any
grievance on that score at any stage of the case.
26. If the court is satisfied of the genuineness of
the statements made by the accused in the said
application and affidavit it is open to the court to
supply the questionnaire to his advocate (containing
the questions which the court might put to him under
Section 313 of the Code) and fix the time within which
the same has to be returned duly answered by the
accused together with a properly authenticated
affidavit that those answers were given by the accused
himself. He should affix his signature on all the sheets
of the answered questionnaire. However, if he does not
wish to give any answer to any of the questions he is free to
indicate that fact at the appropriate place in the
questionnaire [as a matter of precaution the Court may keep
photocopy or carbon copy of the questionnaire before it is
supplied to the accused for answers]. If the accused fails to
return the questionnaire duly answered as aforesaid within
the time or extended time granted by the court, he shall
forfeit his right to seek personal exemption from court
during such questioning.
27. In our opinion, if the above course is adopted in
exceptional exigency it would not violate the legislative
intent envisaged in Section 313 of the Code.” {Para 6}
15. In light of the above discussions, I don't find any
legal impediment in permitting the petitioner to answer
the questions under Section 351 BNSS either by adopting
the procedure laid down in Section 351 (5) BNSS and
Basavaraj R.Patil’s case or by getting his answers
recorded via the electronic video linkage under the
Linkage Rules and getting the statement signed as per
the procedure under Rule 8 (16) of the Rules. It would be
up to the petitioner to choose the method.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.MC NO. 9203 OF 2025
RAMESHAN Vs STATE OF KERALA,
PRESENT
MR.JUSTICE C.S.DIAS
Dated this the 22nd day of October, 2025.
Citation: 2025:KER:77918.
The petitioner, the second accused in S.C.No.1297
of 2020 on the file of the Assistant Sessions Judge,
Punalur (Trial Court), arising from Crime No.83 of 2017
registered by the Pathanapuram Excise Range, Kollam,
stands charge sheeted for committing the offence
punishable under Section 55(g) of the Kerala Abkari Act.
The prosecution evidence has been completed, and the
case stands posted for questioning the accused under
Section 351 of the Bharatiya Nagarika Suraksha Sanhita,
2023 (for brevity, ‘BNSS’), corresponding to Section 313
of the Code of Criminal Procedure (‘Cr. P.C’). The
petitioner is currently employed abroad. He has been
granted permanent exemption from personal appearance
before the Trial Court. Owing to the petitioner’s inability
to obtain leave and travel to India at this juncture, his
Counsel filed Annexure B application seeking permission
to allow the counsel to answer the questions on behalf of
the petitioner. By the impugned Annexure C order, the
Trial Court dismissed the application on the ground that
the application was unsupported by an affidavit and was
contrary to the principles laid down by the Hon’ble
Supreme Court in Keya Mukherjee v. Magma Leasing
Limited and another [(2008) 8 SCC 447]. Annexure C
order is illegal, improper, and irregular.
2. I heard Sri. K.V. Anil Kumar, the learned
Counsel for the petitioner and Sri. C.S. Hrithwik, the
learned Senior Public Prosecutor.
3. The Trial Court has granted permanent
exemption to the petitioner from appearing for the trial.
The case has now reached the Section 351 BNSS
questioning stage. It is at this point that the petitioner's
Counsel sought permission to answer the questions on
behalf of the petitioner.
4. Section 351 of BNSS reads as follows:
“351. Power to Examine 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.
(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.”
(emphasis given)
5. Section 351 of the BNSS expressly enables the
Court to, in a suitable case, permit the accused to file a
written statement in lieu of oral examination, which is
sufficient compliance with the statutory requirement.
6. In Basavaraj R.Patil and others v. State of
Karnataka and others [(2000) 8 SCC 740], while
considering the question whether the accused can be
permitted to file his written submissions under Section
313 of the Cr. P.C, the Hon'ble Supreme Court has held as
follows:
“23. Section 243(1) of the Code enables the accused,
who is involved in the trial of warrant case instituted on
police report, to put in any written statement. When any
such statement is filed the Court is obliged to make it part
of the record of the case. Even if such case is not instituted
on police report the accused has the same right (vide
Section 247). Even the accused involved in offences
exclusively triable by the Court of sessions can also exercise
such a right to put in written statements [Section 233(2) of
the Code]. It is common knowledge that most of such
written statements, if not all, are prepared by the
counsel of the accused. If such written statements can
be treated as statements directly emanating from the
accused, hook, line and sinker, why not the answers
given by him in the manner set out hereinafter, in
special contingencies, be afforded the same worth.
24. We think that a pragmatic and humanistic
approach is warranted in regard to such special exigencies.
The word shall in clause (b) to Section 313(1) of the Code is
to be interpreted as obligatory on the Court and it should be
complied with when it is for the benefit of the accused. But
if it works to his great prejudice and disadvantage the
Court should, in appropriate cases, e.g., if the accused
satisfies the court that he is unable to reach the venue
of the court, except by bearing huge expenditure or
that he is unable to travel the long journey due to
physical incapacity or some such other hardship
relieve him of such hardship and at the same time
adopt a measure to comply with the requirements in
Section 313 of the Code in a substantial manner. How
this could be achieved?
25. If the accused (who is already exempted from
personally appearing in the Court) makes an application to
the court praying that he may be allowed to answer the
questions without making his physical presence in court on
account of justifying exigency the court can pass
appropriate orders thereon, provided such application is
accompanied by an affidavit sworn to by the accused himself
containing the following matters: (a) A narration of facts to
satisfy the court of his real difficulties to be physically
present in court for giving such answers. (b) An assurance
that no prejudice would be caused to him, in any manner, by
dispensing with his personal presence during such
questioning. (c) An undertaking that he would not raise any
grievance on that score at any stage of the case.
26. If the court is satisfied of the genuineness of
the statements made by the accused in the said
application and affidavit it is open to the court to
supply the questionnaire to his advocate (containing
the questions which the court might put to him under
Section 313 of the Code) and fix the time within which
the same has to be returned duly answered by the
accused together with a properly authenticated
affidavit that those answers were given by the accused
himself. He should affix his signature on all the sheets
of the answered questionnaire. However, if he does not
wish to give any answer to any of the questions he is free to
indicate that fact at the appropriate place in the
questionnaire [as a matter of precaution the Court may keep
photocopy or carbon copy of the questionnaire before it is
supplied to the accused for answers]. If the accused fails to
return the questionnaire duly answered as aforesaid within
the time or extended time granted by the court, he shall
forfeit his right to seek personal exemption from court
during such questioning.
27. In our opinion, if the above course is adopted in
exceptional exigency it would not violate the legislative
intent envisaged in Section 313 of the Code.”
7. The above principles have been reiterated and
reaffirmed in Keya Mukherjee v. Magma Leasing
Limited (supra).
8. Although the COVID-19 pandemic disrupted
the conventional functioning of courts, it catalysed an
unprecedented digital transformation of the justice
delivery system, ushering in a new era of hybrid and
virtual proceedings.
9. Recognising this transformative change and
necessity of technology for ensuring affordable and easy
access to justice, this Court, in exercise of its powers
under Articles 225 and 227 of the Constitution of
India, promulgated the Electronic Video Linkage Rules
for Courts (Kerala), 2021 and the Electronic Filing Rules
for Court (Kerala), 2021 (for brevity, hereinafter, referred
to as the ‘Linkage Rules' and ‘Filing Rules’).
10. Rule 3 of the Linkage Rules empowers the use of
the electronic video linkage facility at all stages of a
judicial proceeding. Under Rule 6 of the said Rules, a
party to the proceedings or a witness can make an
application in the form prescribed in Schedule II for a
video linkage. Likewise, under Rule 8(2) and (3) of the
same Rules, in criminal cases, where the person to be
examined is a prosecution witness, court witness or
defence witness, the counsel has to inform the court, the
location of the person, the time, the place and the
availability of the technical facilities. Where the person to
be examined is the accused, the prosecution shall confirm
the accused's location at the remote point. The manner in
which the signature is to be obtained on the transcript is
provided under Rule 8 (16) of the Rules. Notably, Rule 11
of the Linkage Rules empowers the Court, in its
discretion, to authorise the detention of an accused,
framing of charges and the recording of the statement of
the accused under Section 313 Cr. P.C. through the
electronic video linkage. Likewise, Rule 6 of the Filing
Rules enables a document to be electronically filed with
the digital signature of the Advocate and the Party-in person.
11. More than two decades ago, the Hon’ble
Supreme Court in State of Maharashtra v. Dr Praful
B. Desai [(2003) 4 SCC 601] declared that the
recording of evidence through video conferencing
satisfies the requirements under the Cr. P.C.
12. Post the promulgation of the above Rules, this
Court has in several cases permitted cross-examination of
witness, framing of charges and recording of plea
through the electronic video linkage as per the Linkage
Rules (Read the decisions in Alex C.Joseph v. State of
Kerala (2025 (1) KHC 174), Abhil C.R v State of
Kerala (2025 KHC 1650 and Satheesan v. State of
Kerala (2025 KHC 2154). The above precedents signify
judicial endorsement of technological integration in the
procedural law in line with contemporary necessities.
13. It is also relevant to note that sub-section (2) of
Section 251 of BNSS explicitly permits charges to be read
and explained to an accused either physically or through
audio/video electronic means.
14. The confluence of Section 351 BNSS with the
Linkage and Filing Rules embodies the progressive
legislative and judicial policy to integrate technology to
enhance access to justice.
15. In light of the above discussions, I don't find any
legal impediment in permitting the petitioner to answer
the questions under Section 351 BNSS either by adopting
the procedure laid down in Section 351 (5) BNSS and
Basavaraj R.Patil’s case or by getting his answers
recorded via the electronic video linkage under the
Linkage Rules and getting the statement signed as per
the procedure under Rule 8 (16) of the Rules. It would be
up to the petitioner to choose the method.
Accordingly, the criminal miscellaneous case is
allowed in the following manner:
(i) Annexure C order is set aside.
(ii) The petitioner’s Counsel shall, within two weeks
from today, file a memo before the Trial Court,
electing the method of examination under Section
351 BNSS.
(iii) If the petitioner opts for the method laid down in
Basavaraj R.Patil’s case, the Trial Court and the
petitioner are directed to follow the procedure laid
down in paragraph 26 of the said decision.
(iv) Alternatively, if the petitioner opts for the electronic
video linkage, the Trial Court shall examine the
petitioner as per the procedure under Rule 8, and
get the statement signed as per the procedure
under Rule 8 (16) of the Linkage Rules.
The Trial Court shall, thereafter, proceed with the
case, in accordance with law.
Sd/-
C.S.DIAS, JUDGE
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