Court’s Decision
In a progressive and precedent-setting ruling, the Kerala High Court, through Justice C.S. Dias, held that an accused who is unable to personally appear before the trial court due to genuine constraints may answer questions under Section 351 of the Bharatiya Nagarika Suraksha Sanhita (BNSS), 2023, either through video conferencing or by submitting a written statement.
The Court set aside the trial court’s order rejecting the petitioner’s plea for exemption from personal appearance, noting that denying such permission in the era of digital justice would contradict both the spirit of the BNSS and the technological framework established by the Kerala High Court’s own Electronic Video Linkage Rules, 2021.
Justice Dias underscored that “the confluence of Section 351 BNSS with the Electronic Linkage and Filing Rules reflects a progressive policy of integrating technology into criminal justice administration to enhance accessibility and fairness.”
Facts
The petitioner, the second accused in a case under Section 55(g) of the Kerala Abkari Act, was facing trial before the Assistant Sessions Court, Punalur. The case had reached the stage of questioning under Section 351 of BNSS (the successor to Section 313 of the Criminal Procedure Code), after the completion of prosecution evidence.
However, the petitioner, who was employed abroad, could not travel to India to attend the proceedings. Despite having been granted permanent exemption from personal appearance, the trial court refused to permit his counsel to answer the Section 351 questions on his behalf. The trial court based its refusal on the ground that the request was unsupported by an affidavit and allegedly contrary to the Supreme Court’s decision in Keya Mukherjee v. Magma Leasing Ltd. [(2008) 8 SCC 447].
Aggrieved, the petitioner approached the High Court under Section 482 of BNSS, seeking to set aside the order and allow him to respond either through his counsel or via electronic means, citing both his overseas employment and the practical impossibility of returning to India immediately.
Issues
- Whether an accused who has been granted permanent exemption from personal appearance can be permitted to answer questions under Section 351 of BNSS through written submission or via video linkage?
- Whether technological means, such as video conferencing, satisfy the statutory mandate of personal examination of the accused?
- Whether the trial court’s reliance on Keya Mukherjee was misplaced given the subsequent evolution of judicial technology frameworks?
Petitioner’s Arguments
The petitioner argued that the trial court’s refusal to permit remote examination ignored both legislative intent and judicial precedents. He asserted that Section 351(5) BNSS expressly provides for filing a written statement in lieu of personal questioning and that the Kerala High Court’s Electronic Video Linkage Rules, 2021, facilitate such digital participation.
He submitted that in Basavaraj R. Patil v. State of Karnataka [(2000) 8 SCC 740], the Supreme Court had already recognized that the examination under Section 313 Cr.P.C. (now Section 351 BNSS) could be conducted through written answers when personal appearance was impossible due to justifiable reasons such as travel or physical incapacity.
He contended that the trial court’s order was hyper-technical and inconsistent with modern judicial practice, particularly when the petitioner had already been permanently exempted from appearance and had not sought to delay the proceedings.
Further, he emphasized that with the BNSS 2023 replacing the Cr.P.C., the legislature itself had modernized procedural law to allow digital flexibility in the administration of justice, and the trial court’s narrow interpretation defeated this purpose.
Respondent’s Arguments
The learned Senior Public Prosecutor argued that the trial court’s order was proper since personal examination under Section 351 is a mandatory safeguard enabling the accused to explain incriminating circumstances personally. It was contended that such questioning cannot be delegated to counsel, as it involves the accused’s own perception and explanation.
The State relied on Keya Mukherjee v. Magma Leasing Ltd. (supra), where the Supreme Court held that dispensing with personal examination requires strict compliance, including an affidavit verifying the accused’s inability to appear. The absence of such an affidavit, it was submitted, rendered the petitioner’s application defective.
However, the State conceded that, with the advent of the BNSS and electronic procedure rules, the High Court could clarify the mode and manner of compliance in appropriate cases.
Analysis of the Law
Justice Dias conducted an in-depth examination of Section 351 BNSS, which corresponds to Section 313 Cr.P.C., and observed that the newly codified provision explicitly authorizes alternative compliance. Sub-section (5) of Section 351 states that:
“The Court may take help of the 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.”
This statutory change, the Court held, reflects the legislative acknowledgment that modern judicial processes must accommodate remote participation and written responses, ensuring substantive rather than rigid compliance with procedural formalities.
Justice Dias further noted that the BNSS itself introduces digital flexibility across multiple provisions — for instance, Section 251(2) permits charges to be read and explained to the accused either physically or through “audio/video electronic means,” indicating that technology is now an accepted mode of judicial engagement.
Precedent Analysis
The Court extensively referred to Basavaraj R. Patil & Ors. v. State of Karnataka [(2000) 8 SCC 740], wherein the Supreme Court adopted a pragmatic and humanistic interpretation of Section 313 Cr.P.C. The apex court held that when the accused is unable to appear due to genuine hardships such as geographical distance or physical incapacity, the court may:
- Allow written answers to be submitted through counsel, provided the application is supported by an affidavit explaining the inability.
- Issue a questionnaire to the accused through counsel, to be answered and returned with authentication.
The Kerala High Court emphasized that this human-centric interpretation remains binding precedent even under the BNSS, as Section 351(5) now codifies what was previously a judicial innovation.
Justice Dias also drew strength from State of Maharashtra v. Dr. Praful B. Desai [(2003) 4 SCC 601] — a landmark decision that validated video conferencing as a legitimate mode of recording evidence — holding that the “presence” of an accused can be physical or virtual, depending on technological facilitation.
The Court also cited its own rulings 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), where it had previously permitted video-based cross-examination, charge framing, and plea recording under the Electronic Linkage Rules.
Court’s Reasoning
Justice Dias held that the trial court erred in rigidly rejecting the petitioner’s application without considering the enabling provisions of Section 351(5) BNSS and the Kerala Electronic Video Linkage and Filing Rules, 2021. The High Court clarified that technological adaptation is not a deviation from law but an affirmation of the evolving constitutional right to access justice.
The Court reasoned that the BNSS, by incorporating technology-specific language, represents a paradigm shift from procedural rigidity to pragmatic justice delivery. It emphasized that personal examination is intended to safeguard the accused’s right to explain incriminating evidence — a purpose that can be equally served through authenticated written or video responses.
Thus, digital compliance is substantial compliance, provided the authenticity of the accused’s answers is ensured through affidavit, signature, or digitally verified video recording.
Conclusion
The Kerala High Court set aside the trial court’s order and directed as follows:
- The petitioner’s counsel shall, within two weeks, file a memo electing the mode of examination under Section 351 BNSS — either written or through video linkage.
- If the petitioner opts for the Basavaraj R. Patil method, the trial court shall supply a questionnaire and accept written answers authenticated by affidavit and signature.
- If he opts for video linkage, the trial court shall conduct the examination in accordance with Rule 8 and Rule 8(16) of the Electronic Video Linkage Rules, ensuring that the statement is digitally signed and recorded.
- The trial court shall thereafter proceed in accordance with law.
In essence, the Court balanced technological advancement with procedural integrity, marking another step in India’s transition to hybrid justice.
Implications
This judgment is a milestone in India’s procedural modernization, reinforcing that BNSS 2023 is not merely a replacement of Cr.P.C. but a reimagination of justice through digital accessibility. It paves the way for expatriates, differently-abled individuals, and others facing logistical barriers to participate meaningfully in criminal proceedings.
By formally validating video-based and written compliance, the decision strengthens the right to fair trial and access to justice under Articles 14 and 21 of the Constitution, aligning the criminal process with the realities of a global, digital society.
FAQs
1. Can an accused answer questions under Section 351 BNSS without personal appearance?
Yes. The Court held that the accused may submit written answers or appear via video linkage, provided procedural authenticity is maintained.
2. What safeguards ensure fairness in virtual examination?
The Court directed that answers must be authenticated by affidavit or digital signature, following the Electronic Video Linkage Rules, 2021.
3. Does this judgment apply beyond Kerala?
Yes. The interpretation of Section 351 BNSS is nationally applicable and provides a persuasive precedent for other courts implementing the BNSS framework.
