Safiya Malik

The High Court of Kerala, Single Bench of Justice C.S. Dias held that an accused who has been granted exemption from personal appearance may, under Section 351 of the Bharatiya Nagarika Suraksha Sanhita, 2023, respond either by filing a written statement or through video linkage. Delivering the judgment, Justice Dias set aside the trial court’s order that had rejected the plea of an accused employed abroad seeking permission for his counsel to answer questions on his behalf during the Section 351 examination. The Court directed that the accused be given the option to submit written answers or participate virtually in compliance with the Kerala Electronic Video Linkage Rules, 2021.

The case arose from a prosecution registered by the Pathanapuram Excise Range, Kollam, alleging that the second accused had committed an offence punishable under Section 55(g) of the Kerala Abkari Act. The matter was taken up before the Assistant Sessions Court, Punalur, where the prosecution evidence was completed and the case was posted for questioning of the accused under Section 351 of the Bharatiya Nagarika Suraksha Sanhita, 2023, corresponding to Section 313 of the Code of Criminal Procedure.

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The accused, who was employed abroad, had been granted permanent exemption from personal appearance during the trial. Owing to his inability to travel to India, his counsel filed an application before the trial court seeking permission to answer the questions under Section 351 on his behalf. The application was rejected on the ground that it was not supported by an affidavit and was inconsistent with the principles laid down by the Supreme Court in Keya Mukherjee v. Magma Leasing Limited.

Before the High Court, the petitioner contended that his inability to appear was genuine and that the trial court’s refusal had caused undue hardship despite his permanent exemption. It was argued that Section 351(5) of the BNSS expressly allows the filing of a written statement by the accused in lieu of oral examination and that similar permission had been judicially recognized in Basavaraj R. Patil v. State of Karnataka. The petitioner further relied on the Kerala Electronic Video Linkage Rules, 2021, which enable proceedings, including the recording of an accused’s statement, to be conducted through electronic means.

The State opposed the plea, submitting that the trial court’s decision was consistent with existing precedent and procedural requirements, as the application lacked an affidavit from the accused confirming his consent and authenticity of the proposed answers. The evidence before the Court consisted of the final report in the excise case and copies of the application and order challenged.

The Court noted that Section 351(5) of BNSS expressly enables the Court to permit filing of a written statement by the accused as sufficient compliance with the section. The judgment recorded that “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.”

The Court also relied on the Supreme Court’s decision in Basavaraj R. Patil and Others v. State of Karnataka and Others (2000) 8 SCC 740, “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.”

Justice Dias further observed that “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.” The judgment discussed the Electronic Video Linkage Rules for Courts (Kerala), 2021, and the Electronic Filing Rules for Courts (Kerala), 2021, framed under Articles 225 and 227 of the Constitution of India. These Rules empower courts to utilize electronic video linkage facilities at all stages of judicial proceedings.

The Court recorded that 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 statements under Section 313 of the Cr.P.C. through electronic video linkage. The Bench observed that Section 251(2) of the BNSS explicitly allows charges to be read and explained to an accused through physical or electronic means, demonstrating legislative intent to integrate technology into criminal procedure.

The Court stated that “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.” Justice Dias also referred to earlier Kerala High Court decisions—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)—to underline that various procedural aspects, such as cross-examination, framing of charges, and recording of pleas, have been conducted lawfully via electronic video linkage.

Consequently, Justice Dias concluded that there was no legal bar to permitting the petitioner to answer questions under Section 351 BNSS either through written statements as per the Supreme Court’s ruling in Basavaraj R. Patil or through electronic video linkage in accordance with the Linkage Rules.

The Court allowed the criminal miscellaneous case and set aside the order of the Assistant Sessions Court. Justice C.S. Dias stated that “Annexure C order is set aside.” The Court directed the petitioner’s counsel to file a memo within two weeks before the Trial Court, electing the method of examination under Section 351 BNSS. The judgment provided the petitioner with two procedural alternatives.

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First, if the petitioner chose the method under Basavaraj R. Patil, both the Trial Court and the petitioner must follow the procedure outlined in paragraph 26 of the said decision. This includes the preparation of a questionnaire, forwarding it to the accused’s counsel, and ensuring it is returned duly answered, signed, and authenticated by the accused.

Alternatively, if the petitioner opted for the electronic video linkage, the Court directed that “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.” Following the completion of the examination under either procedure, the Trial Court was instructed to continue with the case in accordance with law.

Advocates Representing the Parties:
For the Petitioner: Sri. K.V. Anil Kumar, Smt. Radhika S. Anil, and Shri. Nijaz Jaleel
For the Respondent: Sri. C.S. Hrithwik, Senior Public Prosecutor

Case Title: Rameshan v. State of Kerala
Neutral Citation: 2025: KER:77918
Case Number: Crl.M.C. No. 9203 of 2025
Bench: Justice C.S. Dias