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Inquisitorial and Accusatory System of Trial in India, England and France

The Criminal Justice System is the process by which offenders are arrested, followed by Stages of investigation to determine proof. After which charges are framed, a defense is raised, trials conducted and sentencing rendered if found guilty or acquitted if he is found innocent.

Criminal offenses are usually investigated by researching the facts and or incidents, situations, scenarios, to prove the guilt of the individual. A thorough investigation is carried out systematically, keeping time to time details, analyzing and scrutinizing information to arrive at a conclusion to prosecute the individual committing the criminal offense. The charges framed against the individual are determined by the collected pieces of evidence, and defense is made to oppose or object the prosecution of the criminal offense.

The trial is a judicial examination of the issues between the parties, whether they are of law or facts, presented in court before a jury or judge. In order to determine guilt in the criminal proceedings, pieces of evidence are examined by the judge. Judge takes into consideration the law of the land, the facts presented before him, or the law put in the case for the purpose of determining the outcome.

Types of Criminal justice system:

Across the world, there are many different types of the criminal justice system to keep and maintain order and peace within their area of jurisdiction creating a social code of conduct, the law. Punishments differ from being a punitive one or a rehabilitative nature.

There are two main justice systems:
  1. Adversary system or Accusatory system
  2. Inquisitorial system

According to Black's Law Dictionary,
Adversary system is the court system where a judge decides on a case argued by a prosecutor who is suing the plaintiff and the defense attorney who defends their plaintiff. A jury has also been used to decide such cases.

According to Black's Law Dictionary, the inquisitorial system is:
proof taking used in civil law, whereby the judge conducts the trial, determines what questions to ask, and defines the scope and extent of the inquiry.
  1. Adversary system:
    In the ADVERSARY SYSTEM, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The defendant in a criminal trial is not required to testify. The adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it.
  2. Inquisitorial system:
    In the inquisitorial system, the presiding judge is not a passive recipient of information. Rather, the presiding judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He or she actively steers the search for evidence and questions the witnesses, including the respondent or defendant. Attorneys play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with questioning of their own. Attorney questioning is often brief because the judge tries to ask all relevant questions. The inquisitorial system places the rights of the accused secondary to the search for truth.

Process of Criminal Trial in England:

The inquisitorial system was first developed by the Catholic Church during the medieval period. The ecclesiastical courts in thirteenth-century England adopted the method of adjudication by requiring witnesses and defendants to take an inquisitorial oath administered by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or her.

The system flourished in England into the sixteenth century, when it became infamous for its use in the Court of the STAR CHAMBER, a court reserved for complex, contested cases. Under the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany. From there it spread to the rest of continental Europe and to many African, South American, and Asian countries. The inquisitorial system is now more widely used than the adversarial system.

The inquisitorial system followed specially in civil law countries like France, Germany, New zealand, Italy and Austria and the countries like United Kingdom, United State of America, India and other common law countries followed the adversarial criminal justice system.

Process of Criminal Trial in India:

India has a well-established statutory, administrative and judicial framework for criminal trials.

Indian Penal laws are primarily governed by 3 Acts:
  1. The Code of Criminal Procedure, 1973 (Cr.P.C.);
  2. The Indian Penal Code, 1960 (IPC);
  3. The Indian Evidence Act, 1872 (IEA).

The common features of the trials in all three of the aforementioned procedures may be broken into the following stages:

  1. Framing of charge or giving of notice:
    It's the beginning stage of the trial, when a case comes in the court, court discloses grave suspicion against the accused that has not been properly explained, and the court frames the charge and proceeds with the trial.
  2. Recording of prosecution evidence:
    when the framing of the charges is done, statements of witnesses are taken then they are examined. This is called examination-in-chief and cross-examination.
  3. Statement of accused:
    the accused is given a reasonable opportunity to explain incriminating facts and circumstances in the case.
  4.  Defense evidence:
    If the accused want he can produce and these will be cross examined by the prosecution. There is no need of it because the burden of proof lies on the prosecution.
  5. Final arguments:
    This is the final stage of the trial. The prosecutor shall sum up the prosecution case and the accused is entitled to reply.
  6. Judgment:
    After the conclusion of arguments by the prosecutor and defense, the judge gives his judgment in the trial.

Process of Criminal Trial in France:

Main principles of criminal law in France are as follows:

  • According to French law, the presumption of innocence is there, a person accused of a crime is innocent until found guilty by a judge. As a result, an accused can be deprived of liberty during legal proceedings only if certain conditions are met. Generally, all suspects are released; detention is done only in exceptional cases.
  • In the trial, the guilt must be proved beyond reasonable doubt by the Prosecuting Attorney. At this stage, any testimony you are asked to provide may be crucial.
  • Court proceedings usually take place in public. In certain cases involving sexual offences, the judge may decide to proceed in absence of the public.
  • The accused is not bound to testify in his or her own defense, or to call witnesses.

The various steps in criminal trial in France are as follows:

  1. Arraignment:

    At the arraignment, the charges are read out to the defendant, who pleads guilty or not guilty before the judge. If the accused pleads guilty, the judge will either hand down a sentence in accordance with the rules governing sentencing. If the accused pleads not guilty then the judges decide the date for next stage e.g. The release hearing (also called bail hearing) or disclosure or preliminary inquiry or trial.
  2. Release (bail) hearing:

    The person who is in custody at the time of arraignment must be released on some conditions until objected by the prosecution attorney. And the object should be satisfied. If the accused fails to comply with the conditions, new charges may be imposed.
  3. Before Trial:

    Before trial, a preliminary investigation conducted by a pre-trial judge is a routine part of the judicial process. It transfers the case to the highly competent court on the basis of a reasonable estimation of what the accused criminals may be convicted of in the future. The criminal procedure in France requires early intervention by examining magistrate. Once the investigation has begun, the magistrate is free to investigate any violations related to the application and may proceed to further inquiry any person who may be involved. If the pre-trial judge determines that the case should be prosecuted, the judge will make an order for transfer.
  4. Preliminary inquiry and trial:

    If the sufficient evidence to take the case to the court is found then only the trial starts. First, determining whether there is enough evidence to issue a trial and second, proving that the guilt beyond a reasonable doubt, in both cases, the Prosecuting Attorney and the counsel for the defense call and question witnesses, including the victim or victims, and present evidence with arguments in support of their respective cases. If the evidence is found to be insufficient at the preliminary inquiry, the charges against the accused will be dropped, whereas if the evidence is found to be insufficient at the trial, the accused will be acquitted. And the judge met is given.
  5. Sentencing:

    If the accused is found guilty judges may award sentence or ask for the pre-sentencing report. This report should be prepared by the parole officer in which the conduct of the accused in the society will be dealt and the victim may be concerned to know the nature and seriousness of the offence.

Criticism of Adversarial system:

  1. In this system, the lawyer has the duty to act zealously and faithfully for his client. Zealous, faithful advocacy means the obligation to search out all favourable evidence, to seek, neutralize or destroy all unfavourable evidence, and to press the most favourable interpretation of the law for his client.
  2. Sometimes protection of individual rights and a presumption of innocence and benefit of doubt leads to the release of a criminal.
  3. Evidences are presented by parties, sometimes parties intentionally take a too long time to present them.
  4. The decision maker will hear only the evidences which the parties want to present because evidence gathering and presentation is fully controlled by parties.
  5. Parties may bring fake witnesses to distort the truth.
  6. Rules require advocacy and client loyalty which undermines the search for truth.
  7. The police sometime may not be able to find sufficient evidence against the accused. He cannot expect any help from the accused. This leads to dropping-out of the case.

Criticism of inquisitorial system:

  1. Examining magistrate and judge both are having unchecked power to investigate and adjudicate the case.
  2. When court participates in the interrogation it may lead to a biased attitude.
  3. Privacy of the accused is denied.
  4. Prosecutor and police exceed or misuse their power because both are having separate law to deal with their conduct.
  5. Parties are not able to call own expert.

If the matter is only to decide a case in favor of either of the parties, it is not a big deal at all but there is a proper procedure established step by step to reach the common objective which is a punishment to the offender and relief to the victim and ensure a fair trial. Both the systems have their own procedure, advantages and disadvantages also. Adversarial and inquisitorial both are criticized, the reliability of the judgments is challenged but still, it is prevailing.

In adversarial system accused and state are the parties in a criminal case whereas in the inquisitorial victim is also a party, I think this feature of the adversarial system is good. Basic principles of adversary system like the presumption of innocence and proof of guilt beyond reasonable doubt is good, because when a person is accused of committing any offence, he is mere an accused not an offender or criminal, he should have rights which are denied in an inquisitorial system. Having own critics and features, both the systems have the same objective.

Mahender Chawla vs Union Of India Ministry Of Home Affairs (2018)
In this case the SC criticized the prevalent criminal justice system in India and put emphasis on the importance of importance of witnesses in the adversarial system. The SC held that in an adversarial system, which is prevalent by India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses.

The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process. Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter.

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