Trial Court Not Bound To Incorporate Questions Suggested By Prosecution Or Accused Under Section 313(5) CrPC: Orissa High Court

While clarifying the true purport of Section 313(5) CrPC [akin to Section 351(5) BNSS], which provides that the Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi held–

“However, a plain and purposive reading of Section 313(5) of the Code of Criminal Procedure makes it abundantly clear that the said provision is enabling in nature and vests discretion in the Court, rather than creating any mandatory obligation to incorporate questions as suggested by the parties. The scheme of Section 313 Cr.P.C., including sub-section (5), leaves it to the judicial wisdom of the trial Court to determine the necessity, relevance, and propriety of framing or incorporating any specific questions, depending upon the facts and circumstances of each case.”

The proceedings emanated from a complaint case filed by the opposite party (OP) against the petitioner for dishonour of a cheque amounting to ₹3,50,000/-, which is punishable under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act'). As per the complaint allegations, the petitioner had borrowed the said amount from the OP for his business purposes but did not repay despite repeated requests.

The trial of the case was taken up by the JMFC, Khordha and the case reached till the stage of examination of the accused/petitioner under Section 313 of the CrPC for eliciting his responses to the incriminating materials. At this stage, the petitioner filed an application under Section 313(5) of the CrPC seeking permission of the Court to incorporate certain questions furnished by him. However, the Magistrate dismissed such application holding the same to be superfluous and as dilatory gimmick.

Therefore, while impugning the said rejection order, the petitioner contended before the High Court that the application was not a dilatory tactic but a legitimate exercise aimed at securing a fair opportunity to explain the circumstances appearing in the evidence against the petitioner and the rejection thereof by the Court below has potential to prejudice his interest in the trial.

The main question which, thus, arose for consideration was whether the application preferred by the petitioner under Section 313(5) constitutes a bona fide invocation of the provision to secure a fair opportunity of defence in consonance with the principles of natural justice, or whether the same has been instituted at an advanced stage of the proceeding as a ploy to protract conclusion of the trial.

The Court noted that though the complainant's evidence was closed on 16.10.2025, repeated adjournments were sought by the petitioner which delayed recording of his statement under Section 313. Only following an ultimatum by the Court, the petitioner filed the application under Section 313(5) on 06.12.2025.

Further, the Court made it clear that the language employed in Section 313(5) makes it discretionary and enabling in nature rather than a mandatory provision. Hence, it is up to the judicial wisdom of the Court to determine whether, in a given set of facts and circumstances, help of the prosecution and the defence should be sought.

Against the aforesaid legal as well as factual backdrop, the Bench concluded–

“The exercise of discretion by the learned Trial Court appears to be judicious and in conformity with the settled principles governing the scope of Section 313(5) Cr.P.C. Considering the straightforward nature of the prosecution under Section 138 of the Negotiable Instruments Act, 1881, and the attendant circumstances indicating dilatory conduct on the part of the Petitioner, the refusal to entertain the said application cannot be faulted with,”

Accordingly, the petition under Section 482 CrPC/ Section 528 BNSS was dismissed.

Case Title: Ashok Kumar Mangaraj v. Manasi Sahoo

Case No: CRLMC No. 895 of 2026

Date of Judgment: June 25, 2026

Counsel for the Petitioner: Mr. Pravasha Pujaree Parida & Mr. Rajat Kumar Panda, Advocates

Counsel for the Opposite Party: Mr. Prakash Kumar Mishra, Advocate

Citation: 2026 LiveLaw (Ori) 73