DATE: 22/10/2025
COURT: High Court of Kerala
BENCH: Justice C.S. Dias
FACTS:
The petitioner, the second accused in S.C.
No. 1297 of 2020 before the Assistant Sessions Judge, Punalur, faced trial for
an offence under Section 55(g) of the Kerala Abkari Act, stemming from Crime
No. 83 of 2017 registered by the Pathanapuram Excise Range, Kollam. The
prosecution evidence had been completed, and the case was posted for
questioning under Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS), corresponding to Section 313 of the Code of Criminal Procedure. The
petitioner, who was employed abroad, had already been granted a permanent
exemption from personal appearance before the Trial Court. Due to his inability
to travel to India at that stage, his counsel filed an application seeking
permission to answer the Section 351 BNSS questions on his behalf. However, the
Trial Court dismissed the application, holding it to be contrary to the
principles laid down in Keya Mukherjee v. Magma Leasing Ltd. (2008) 8 SCC 447,
and further noting that it was not supported by an affidavit.
Challenging this rejection, the petitioner
approached the Kerala High Court, contending that Section 351(5) BNSS expressly
allows submission of a written statement in lieu of personal examination and
that technological mechanisms like video linkage could sufficiently satisfy
statutory compliance. The petitioner argued that with the advent of digital
justice systems and the Electronic Video Linkage Rules (Kerala), 2021, the
Trial Court should have adopted a more liberal and pragmatic interpretation.
The State opposed the plea, relying on the Supreme Court’s earlier precedents
requiring strict adherence to procedural safeguards during the examination of
the accused.
ISSUES:
The primary issue before the Kerala High
Court was whether an accused, who has been granted permanent exemption from
personal appearance and is employed abroad, can be permitted to answer
questions under Section 351 of the BNSS (formerly Section 313 CrPC) either
through written statements or via electronic video linkage, and whether the
Trial Court erred in dismissing such an application on procedural grounds.
JUDGEMENT WITH REASONING:
The Kerala High Court set aside the Trial
Court’s order and allowed the petitioner’s application. It held that the
accused may choose either to submit written answers to the Section 351 BNSS
questionnaire following the Basavaraj R. Patil v. State of Karnataka (2000) 8
SCC 740 procedure or to answer questions through electronic video linkage under
the Electronic Video Linkage Rules (Kerala), 2021. The Court directed the
petitioner’s counsel to elect one of these methods within two weeks and
instructed the Trial Court to proceed accordingly in compliance with the
prescribed rules.
The Court reasoned that Section 351 of the
BNSS represents a progressive reform aligning criminal procedure with modern
technological realities. The provision explicitly allows the Court, in
appropriate circumstances, to accept a written statement from the accused as
sufficient compliance with the examination requirement. Citing Basavaraj R.
Patil v. State of Karnataka, the Court noted that the Supreme Court had already
recognized the feasibility of written responses in situations where personal
appearance causes hardship, provided the accused submits an affidavit outlining
valid reasons and assurances against prejudice. The High Court observed that
since the petitioner had been permanently exempted from appearance, and given
his overseas employment, this was a fit case for applying such flexibility.
Furthermore, the Court emphasized that
India’s judicial system had undergone a transformative shift following the
COVID-19 pandemic, with video conferencing becoming an accepted mode of
conducting proceedings. Referring to the Electronic Video Linkage Rules for
Courts (Kerala), 2021, and the Supreme Court’s decision in State of Maharashtra
v. Dr. Praful B. Desai (2003) 4 SCC 601, it held that video linkage satisfies
procedural fairness under criminal law. The Court clarified that Sections
251(2) and 351(5) BNSS, when read with these Rules, collectively signify the
legislature’s intent to integrate digital access into the criminal process,
ensuring both convenience and compliance. Thus, it concluded that permitting
questioning through written or electronic means neither undermines procedural
safeguards nor compromises the accused’s rights, but rather advances access to
justice through technology.
ANALYSIS:
The Kerala High Court’s decision in this
case underscores the judiciary’s evolving approach toward integrating
technology and flexibility within procedural criminal law. By allowing the
accused, who was employed abroad and had been granted permanent exemption from
appearance to respond to Section 351 BNSS (formerly Section 313 CrPC) questions
either in writing or through video linkage, the Court recognized the balance
between procedural compliance and practical constraints. The judgment marks a
significant departure from rigid procedural formalism by acknowledging that
modern justice must adapt to technological realities. Drawing from Basavaraj R.
Patil v. State of Karnataka (2000), the Court affirmed that written statements
can serve as valid substitutes for oral examination when personal attendance is
impractical, provided procedural safeguards like affidavits and authentication
are maintained. This approach ensures that justice is not hindered by
geographical or logistical barriers while upholding the accused’s right to fair
participation in the trial process.
Further, the Court’s reliance on the
Electronic Video Linkage Rules (Kerala), 2021 and the Supreme Court’s precedent
in Dr. Praful B. Desai (2003) highlights the judiciary’s commitment to
institutionalizing digital access within criminal adjudication. The judgment
reflects a progressive reading of Section 351 BNSS as a forward-looking
provision that promotes efficiency, accessibility, and procedural fairness in
an increasingly digital legal environment. It also sets a precedent for trial
courts to interpret procedural requirements in harmony with technological
advancements, ensuring that justice delivery remains adaptive and inclusive. In
essence, the decision not only reaffirms the accused’s rights but also signals
a transformative shift toward a more modern and responsive criminal justice
system in India.
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