By Madhubala Solanki
Editor’s Note: This paper will be dealing with trial procedure followed by India and France, the basic nature of both countries’ legal systems. In law, there are different methods of exposing evidence in court: adversary procedure and inquisitorial procedure. Procedural law prescribes the means of enforcing rights or providing redress of wrongs and comprises rules about jurisdiction, pleading and practice, evidence, appeal, execution of judgments, representation of counsel, costs, and other matters. These are very important in a case trial. In this paper after comparing both countries’ trial procedure while dealing with advantages and disadvantages and criticism of both the systems, above given key question will be answered.
Criminal justice system includes all the interdependent components of the court, various stages of a trial procedure also. A thorough study of the trial system of India and France is done in this project. Defining the criminal justice system, the mechanism of the two prevailing criminal justice system in the world i.e. the adversary system and inquisitorial system is dealt with. Both the systems are thoroughly compared and articles are analyzed. Many times the reliability of decisions given in the different system is compared and criticized; criticism of both the systems is dealt with. An analysis of Nithari case is done; in this case, accused alleged that he is not getting justice because he is not able to hire a lawyer of his choice. The procedure differs in both the systems but the objective of both is same to prevent crime and punish the criminals.
CRIMINAL JUSTICE SYSTEM
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 SYSTEMS
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
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’’.
A GENERAL COMPARISON OF THE INQUISITORIAL AND ADVERSARIAL SYSTEMS
1. The binding force of case laws: In the adversarial system, the earlier decisions by the higher courts are considered to have a binding effect, but in the inquisitorial system, the precedents are not given that much importance. The judges or jury give judgment independently using the relevant statutes, so much importance is given to the code of law.
2. Investigation: In the adversarial system, the parties e.g. police and defense have a responsibility of bringing evidence, whereas in the inquisitorial system the government officials (PP) collects the pieces of evidence, they themselves can conduct the investigation or they may request the police to do so. PPs can instruct the police about the priorities. In some inquisitorial systems, a judge may conduct the investigation. Oppositely in adversarial system judges do not play any role in the investigation.
3. Examining phase: There is nothing like an independent examination in adversarial system chief and cross-examination is the part of trial only. In inquisitorial systems interrogation of witnesses and collection of evidence is done by examining judge.
4. The trial: There is requirement of a counsel representing the state and another acting on behalf of the defendant before the adjudicator. And the evidence in chief is taken and witnesses are cross-examined or re-examined. In the inquisitorial system record of evidence is already done in the examining phase, while there is no cross and re-examination of witnesses, but witnesses are questioned and challenged.
5. Role of the trial Judge and counsel: The judge ensures that the due process of law is followed in the courtroom and gives the decision. The counsel introduces evidence and question witnesses in the adversarial system. Whereas in the inquisitorial system the judge (or jury) direct the courtroom, proceedings and interrogate the witnesses and also evaluate evidence to reach their decision.
6. Use of juries: Juries are used in many cases in the adversarial system but in inquisitorial juries are used in most serious cases.
7. Rules of evidence: In the adversarial system there is a strong categorization of admissible and inadmissible evidence and hearsay evidence is more readily allowed if it is reliable. Rules relating to admissibility are more lenient in the inquisitorial system. If the judge decides particular evidence as relevant, that is admitted. In many inquisitorial systems, there is no hearsay rule at all.
8. Rights of the defendant: In both the systems the defendant has the right to fair trial and self-incrimination.
9. Role of the victim: In the adversarial system, the victim is not a party in the trial the case represents against the defendant on behalf of the state. In the inquisitorial system, the victim has the status of a party in the trial.
10. Organization of the courts: As the adversarial system is generally followed in common law countries, courts have general jurisdiction to adjudicate and as the inquisitorial system is followed in civil law countries, there are special courts to deal with constitutional law, criminal law, administrative law, commercial law, and civil or private law.
ANALYSIS OF COMPARISON DONE BY CHRISTOPHER E. SMITH
Under the title “The Adversary System versus Inquisitorial System’’
If there is nothing more than deciding a matter of guilt of a person, there are various methods like flipping a coin, which is the simplest one, or any other method in which the result comes by chance only. Otherwise, an authority can be appointed and left all the things on the description. But there is a particular set of procedures, choice of methods.
In a trial there is presentation and examination of evidences then the decision is made. Trial is done with the desire to make accurate decisions within a framework of trial procedure. With this objective, various countries have different procedures. Most countries that use lawyers and judges in a trial process can be divided into one of two systems: adversary or inquisitorial. In adversary system judge listens both the councils representing the parties whereas in inquisitorial system judges play an active role in investigation and examination of the evidences. It is not easy to say which system gives reliable decisions. Each system have own critics.
The Adversary system: In this system, there is a head to head combat of two skilled advocates. They prepare with the intention to convince the judge through persuasive arguments. If an attorney is more skilled he can move the case, there is no balance for that. The prevailing presumption of the adversary system is that battle between the attorneys will reveal the truth without any extra participation by the judge.
The inquisitorial system: In this system, judges investigate and raise questions. In France, there is examining magistrate and chief magistrate. Effectiveness of the process depends on the ability of the individual judge to be thorough and fair.
Comparison: The fate of the culprit is at risk in the adversarial system because of the effectiveness and persuasiveness of the councils. In as evidences are presented by advocate so they can hide unfavorable information, which is misleading in character. It may lead to the conviction of innocent, more emphasis is given to the rights of the defendant whereas in His rights of the defendant is given less emphasis. Inquisitorial system is structured to focus on truth seeking without risking.
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.
PRINCIPLES OF CRIMINAL LAW 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.
VARIOUS STEPS OF CRIMINAL TRIAL IN FRANCE:
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.
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.
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.
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 favorable evidence, to seek, neutralize or destroy all unfavorable evidence, and to press the most favorable 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.
ANALYSIS OF SURENDRA KOLI’S DEATH SENTENCE
According to a published report of “Asian Centre for Human Rights’’ under title “Death reserved for poor”
Surendra Koli vs State of U.P. Ors also known as Nithari case
In between 2oo5 and 2006, many children were missing from Nithari village in Gautam Budh Nagar district, Uttar Pradesh. Several of such children were alleged to have been killed by Surendra Koli, servant of businessman Maninder Singh Pandher at his residence. Skeletal of many children who were missing were discovered from a drain near Pandher’s house. At least 19 girls and women were stated to have been raped and killed. The case was transferred to the CBI in January 2007.
Surendra Koli was charged with rape, abduction and murder in 16 cases while Pandher was summoned as a co-accused in 8 cases. Special court awarded them death sentence for the rape and murder of 14 year old girl, Rimpa. On appeal Allahbad HC upheld the death sentence of Koli but acquitted Pandher.
In 2011 SC confirmed death penalty of Koli observing it as rarest of rare case. He filed revision petition before SC which was rejected. Death warrant of Koli was issued. He was to be hanged on 8 Sept. 2014 which was stayed while posting the revision petition of Koli on 28 Oct. 2014.
SC again upholds the death sentence. Before confirmation of the death penalty by the SC in Rimpa murder case, the CBI court awarded death sentence in other 4 cases of rape and murder and giver 5th death sentence. A petition challenging the acquittal of Maninder Singh Pandher by the High Court in the murder of Rimpa Haldar is pending before the Supreme Court.
Legal representation: the wide divide between the rich and poor
Surendra Koli was provided amicus curiae (lawyers on legal aid penal) to defend him because Koli was not able to hire lawyers of his own choice in the cases in which he is awarded the death penalty. Koli moved an application for new defense lawyer alleging that the provided lawyer was not competent enough which resulted in him being awarded the death sentence. In April 2011, the CBI court appointed a new defense lawyer and allowed his petition.
On the other hand, Pandher was able to hire very capable lawyers to defend him.
Koli was sentenced to death in 5 cases out of which SC confirmed the death sentence in 1case However, the only clinching evidence against him till date is his confession to the magistrate under Section 164 of the Criminal Procedure Code; he retracted from hi confession saying that there was torture and sign of torture is neglected by magistrate. No medical examination was done before and after confession.
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.
Formatted on February 13th, 2019.
1. CHRISTOPHER E. SMITH “Courts and Trials: A Reference Handbook” ABC-CLIO, 2003
Available<https://books.google.co.in/books?id=pZSQZu3cRMAC&pg=PA41&dq=Adversarial+versus+inquisitorial+justice&hl=en&sa=X&ei=fHL6VNTCG8mIuAThiILIBw&ved=0CDIQ6AEwBQ#v=onepage&q&f=false> Last accessed: 9th March
2. PAT SCHROEDER “The Adversarial Legal System: Is Justice Served?” 2010 Available at: <http://www.thelawinsider.com/insider-news/the-adversarial-legal-system-is-justice-served/> Last accessed: 24th March 2015
3. Report of “Asian Centre for Human Rights’’ under title “Death reserved for poor”
Available at: < http://www.achrweb.org/reports/india/DeathReserved.pdf> Last visited : 25th March 2015
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2. http://www.justice.gouv.qc.ca/english/publications/generale/proc-peines-a.htm Last visited:13th March 2015