Kerala High Court Permits Accused Living Abroad To Answer Questions U/S. 351 BNSS Via Counsel Or Video Link

The High Court was hearing a criminal miscellaneous case filed by a man facing trial under Section 55(g) of the Kerala Abkari Act, challenging the trial court’s refusal to allow his counsel to respond to questions under Section 351 BNSS on his behalf.

A Bench comprising Justice C.S. Dias, while allowing the plea, observed that “there is no 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 or by getting his answers recorded via electronic video linkage.”

The petitioner was represented by Advocate K.V. Anil Kumar, while C.S. Hrithwik, Senior Public Prosecutor, appeared on behalf of the respondents.

Background

The petitioner was charged under Section 55(g) of the Kerala Abkari Act. Following the completion of prosecution evidence, the case was posted for questioning under Section 351 BNSS.

Since the petitioner was employed abroad and had been granted permanent exemption from personal appearance, his counsel filed an application before the trial court seeking permission to answer the questions on his behalf.

The trial court, however, dismissed the application, citing the absence of an affidavit and reliance on the Supreme Court’s decision in Keya Mukherjee v. Magma Leasing Limited (2008), which restricted such delegation. Aggrieved, the petitioner approached the High Court.

Court’s Observation

The Kerala High Court examined Section 351 of the BNSS, which allows the accused to explain circumstances appearing in evidence against them, and specifically notes under sub-section (5) that “the Court may take help of the prosecutor and defence counsel in preparing relevant questions and may permit filing of written statement by the accused as sufficient compliance of this section.”

The Court observed that this new statutory formulation reflects legislative intent to accommodate technological flexibility and procedural pragmatism.

Referring to the Supreme Court’s ruling in Basavaraj R. Patil v. State of Karnataka (2000), Justice Dias noted that written responses can substitute physical examination in “special exigencies” where travel is impracticable, provided an affidavit establishes genuine hardship and ensures that no prejudice will result from absence.

The Bench emphasised that the BNSS’s Section 351 harmonises with Kerala’s Electronic Video Linkage Rules, 2021, and Electronic Filing Rules, 2021, which authorise courts to conduct examinations, frame charges, and record statements through virtual means. The Court cited earlier precedents, including Alex C. Joseph v. State of Kerala, Abhil C.R. v. State of Kerala, and Satheesan v. State of Kerala, to demonstrate judicial recognition of technology in procedural law.

The Bench, accordingly, concluded 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.”

Conclusion

Allowing the plea, the Kerala High Court held that modern procedural law must accommodate technological and practical realities without compromising the principles of fair trial.

The Court, therefore, set aside the trial court’s order and directed it to allow the petitioner to choose between either submitting a written statement following Basavaraj R. Patil or answering questions through video linkage in compliance with Rule 8 of the Linkage Rules.

Cause Title: Rameshan v. State of Kerala (Neutral Citation: 2025:KER:77918)

Appearances

Petitioner: K.V. Anil Kumar, Radhika S. Anil, and Nijaz Jaleel, Advocates

Respondent: C.S. Hrithwik, Senior Public Prosecutor

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