THAKUR RAMNARAYAN COLLEGE OF LAW, MUMBAI.

Academic Year 2023 -2024

Name of Assignment: ADVERSARIAL AND INQUISITORIAL SYSTEMS

Full Name: DHRUV DAYANAND MISHRA.

Roll No.: 1. Section: T.Y. LL. B (B).

Subject: CRIMINAL PROCEDURE CODE.

Date of Submission: ___________

PROFESOR IN CHARGE: PROFESSOR SHIVANI GUPTA.

Student Sign: Professor Sign:

I have taken efforts in this project. However, it would have not been possible
without the kind support and help of many individuals and organization. I would
like to extend my sincere thanks to all of them.
I am highly indebted to Dr. A.K. SINGH, the principal for their guidance and
constant supervision and our professor PROFESSOR. SHIVANI GUPTA, for
providing necessary information regarding the project and their support in
completing the project.
I would like to thank and appreciate my family and friends for their kind co-
operation and encouragement in developing the project which help me in the
completion of this project and people who have willingly helped me out in their
abilities.

DHRUV MISHRA.
 CERTIFICATE

This is to verify that Mr. DHRUV MISHRA student of THAKUR RAMNARAYAN

Signature of professor Signature of principal

Introduction.
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.
Adversarial and inquisitorial systems of justice represent two different means of conducting
trials with adversarial systems used in common law jurisdictions such as England and the
inquisitorial system being prevalent in mainland Europe. This essay will outline the
characteristics of each system and consider which one is best suited to the assessment and
evaluation of facts.

The adversarial system is based on the opposing sides acting as adversaries who compete to
convince the judge and jury that their version of the facts is the most convincing. The lawyers
are given free choice in terms of which issues are presented, what evidence to adduce in
support of their submissions and what witnesses to call. The judge presides over the trial and
rules on disputed issues of procedure and evidence, asking questions of the witness only to
clarify evidence, and concludes the trial by summing-up the facts for the jury and advising
them of the relevant law. It is not open to the judge in an adversarial system to enquire
beyond the facts and evidence that are presented by the opposing lawyers; his role is largely
passive; he is an impartial referee who advises the jury on matters of law.

This differs dramatically to the role of the judge in an inquisitorial system which is based, as
the name suggests, on an inquiry into the case thus the judge is not limited to hearing the
submissions of the parties but can direct the lawyers to address specific points or to call
particular witnesses. The title of the presiding judge as ‘juge d’instruction’ which translates
as ‘investigating magistrate’ in the French criminal justice system gives in indication of the
role of the judge in directing proceedings. Unlike the adversarial system, the role of the
inquisitorial system is not to determine guilt or innocence of one particular person but to find
the truth. As such, the judge, as investigating magistrate, conducts an inquiry that involves
the questioning of witnesses and suspects, the issue of search warrants and an examination of
the evidence with the aim of discovering both incriminating and exculpatory evidence.
ADVERSARIAL CRIMINAL JUSTICE SYSTEM.

This system followed in all those countries that follow common law inherited from the
British Colonial Rulers. The countries like United Kingdom, United State of America and
India follow this model. The adversarial model of justice is close to Anglo-American system
and its past colonies. It advocates the supremacy of law, that is, equal treatment of law for all
segments of society. In this system accused is presumed to be innocent and the burden is on
the prosecution to prove beyond all reasonable doubt and if there is any doubt, the benefit of
doubt goes in favour of accused. The accused also enjoys the right to silence and cannot be
compelled to reply. This right is guaranteed by Constitution of India in the form of
fundamental right and also a universally recognized right of the accused.

In the adversarial system truth is supposed to emerge from the respective versions of facts
presented by the prosecution and the defense before a neutral judge. It means the trial is not
structured as an investigation into the truth but to reach a just settlement between the parties.
The role of the judge is that of impartial umpire to see whether the prosecution has been able
to prove the case beyond reasonable doubt. The prosecution has to prove the guilt to the
requisite standard. At the heart of the trial lies the principle of orality, which provides that
evidence should generally be received through the live, oral testimony of witnesses in court.
The court is largely dependent upon the evidence presented by the parties. Moreover, this
system owing to the conceptualization of crime as an offence against the state, the criminal
justice system is traditionally viewed as a system to facilitate a conflict between the state and
the accused. The victim is thereby inherently excluded.

In the adversarial system, the parties use cross-examination of witnesses to undermine the
opposing case and to discover information and other side has not brought out. Hence we can
say that, parties in the adversarial system enjoy a high degree of freedom of proof, which
largely extends to the manner in which witnesses are cross-examined. As the adversarial
system does not impose a positive duty on the judge to discover truth he plays a passive role.
The judge neither takes part in investigation nor gives any instructions to prosecution.

As the researcher already discussed each system has its own merits and demerits, the
adversarial system insists upon strict adherence of procedural law which results into less
room for the state to be biased against the accused. It provides ample opportunity to uncover
the truth in a laboratory of courtroom. This model allows both parties to fully air their
grievances and reach a final solution by a disinterested and impartial judge. The main
advantage of this system is that there is not a direct involvement of the judge in the
investigation otherwise it will lead to his prejudice to decide the case. Along with this the
individual’s right to privacy is best preserved under it. In short there is a guarantee of fair
trial. The main disadvantage of this system is that, the system is heavily loaded in favour of
the accused and is insensitive to the victims plight and rights. Another thing is that, in this
system most of legal cases do not go to trial; this can lead to great injustice when accused has
an unskilled or overworked lawyer. It fails to accurately resolve complex technical issue such
as science, technology or tax or accounting regulations. Too much insistence on procedure
may lead to unnecessary delay and that is the reason we can say that justice delayed is justice
denied. When we discuss about the role of victim then we found that, victim act as a
prosecution witness and he don’t have any place or voice in the system and ultimately he
becomes the neglected object and subject under the criminal justice system.
INQUISITORIAL CRIMINAL JUSTICE SYSTEM.

The inquisitorial model basically relates to Romano Germanic System of Law, which is also
known as civil law system or continental law system. Inquisitorial system emerged in France
and other European countries like Germany, New Zealand, Italy and Austria. This system
tends to treat the court, police and prosecution as parties to crime or partners in quest for truth
or justice. It aims to attain justice with the composite effort of the prosecutor, the police, the
defense lawyer and the court. The court can play active role in procuring evidence, in the
investigation of the case and the examination of the witness.

In this system power to investigate rests primarily with the judicial police officers
(Police/Judiciary). They investigate and draw the documents on the basis of their
investigation. The judicial police officer has to notify in writing of every offence which he
has taken notice of and submit the dossier prepared after investigation to the concerned
prosecutor. If the prosecutor finds that no case is made out he can close the case. If however
he feels that further investigation is called for, he can instruct the judicial police to undertake
further investigation.

The judicial police are required to gather evidence for and against the accused in a neutral
and objective manner as it is their duty to assist the investigation and prosecution in
discovering truth. The judge has unlimited power to obtain and evaluate evidence. It is the
judge who calls and examines the evidence and it is the lawyers who are there largely to
ensure that the proceedings are fair. The fundamental idea of inquisitorial proceeding is that
the judge himself must investigate a complaint. The judge plays a very active role and the
court dominates proceedings and actively searches for the truth.

The main feature of this system is that the accused is presumed to be innocent and it is the
responsibility of the judge to discover the truth. The statements of witnesses recorded during
investigation are admissible and form the basis for the prosecution case during final trial. The
exclusionary rules of evidence hardly exist and at the same time hearsay evidence (rules) is
unknown.

The important thing is that before the trial, the judge, the accused and the victim are entitled
to participate in the hearing. However the role of the parties is restricted to suggesting the
questions that may be put to the witnesses. It is the judge who puts the questions to the
witnesses and there is no cross-examination as such.

The evidence regarding character and antecedents of the accused such as previous
convictions or conduct are relevant for proving the guilt or innocence of accused. When we
discuss about the main advantage of this system then we cannot ignore one thing that to prove
the case, the standard of proof required is the inner satisfaction or conviction of the judge and
not proof beyond reasonable doubt as in the adversarial system. It means the court exercises
an affirmative role, rather than the role of an umpire in the conduct of the prosecution.

Victim plays an important role at every stage of the case. The victim may be made a party to
assist the court in discovering the truth. He may be permitted to put questions or suggest
questions to be put by the court to the witnesses produced by the parties. He can also point
out the availability of other evidence that would assist the court in discovering truth. On the
victim furnishing such information the court may cause production of such evidence as it
considers necessary to discover the truth. Victim also has right to appeal against any adverse
order.

INDIAN CRIMINAL JUSTICE SYSTEM.

The system followed in India for dispensation of criminal justice is the adversarial criminal
justice system derived it from British model. But when we try to trace the history of Indian
Criminal Justice System we found that there are different phases of this criminal justice
system. With the passage of time the changes took place from time to time as there was no
uniform criminal justice system in India. The criminal justice system in India has evolved
over a period of three thousand years. Initially, the Law or Dharma, as propounded in the
Vedas was considered supreme in ancient India and the King had no legislative power. But
gradually, this situation changed and the King started making laws and regulations keeping in
view the customs and local usages.

The punishments during ancient India were cruel, barbarous and inhuman. As regards the
procedure and quantum of the punishments there were contradictions among various Smritis
and in certain cases even among the provisions found in one Smriti itself. The system of
awarding punishments on the basis of Varna contravened the concept of equality of all human
beings as propounded by the Vedas. The penalty for crime was increasingly severe the higher
the Varna of the victim and lower the Varna of the perpetrator. The discriminatory system of
inflicting punishments and contradictory provisions in different legal literature made the
criminal justice system defective and confusing.

During the Muslim rule in India though enlightened monarchs like Sher Shah Suri and Akbar
showed great zeal to administer justice impartially, yet as a whole the administration of
justice during the Muslim period in India suffered from defects. The concept of equality was
applicable only to the Muslim population in India and thus the bulk of the population, i.e.
non-Muslims, was subjected to humiliating discrimination. The Hindus suffered in almost
similar manner as the people of lower Varna suffered at the hands the people of higher Varna
among the Hindus. The major defect of Muslim criminal law was that most of the crimes
were considered private affairs of the individuals. Many offences, including murder, could be
compounded by the payment of ditya, i.e. blood money and human life was considered rather
cheap, capable of assessment in terms of money. The criminal justice system developed by
the Muslim rulers continued in India even after the British took control of India. It was in
1860 that the codification of laws changed the discriminatory provisions of Muslim criminal
law.

The Britishers after assuming power in India found the then prevailing criminal justice
administration is defective and decided to bring the drastic changes in it. The major credit
goes to Lord Cornwallis who made detailed studies of the existing conditions of the criminal
justice administration and introduced many reforms to revamp the whole system. Lord
Hastings took special interest in reorganizing the police force to deal with the criminals and
maintain law and order in the country. At the same time we cannot ignore the work of Lord
Macaulay who is considered as father of Indian Penal Code which was passed by the British
Parliament in 1860. Hence this was the first step to supersede the Mohammedan criminal law
and applies the code uniformly to all the people apart from their caste and religion.
The Britishers introduced reforms wherever necessary. They adopted new principles by
modifying the existing laws wherever required and made new laws where they felt it was a
must. The institutions of police, magistracy, judiciary and jails developed during the British
period still continue without significant changes in their structure and functioning. However,
the British rulers also, while restructuring the criminal justice system, did not fully implement
the concept of equality.

Conclusion.
Though there are two models of criminal justice system but there is no watertight
compartment to distinguish between them. The basic difference between the two systems lies
in their approach to justice or truth of the case. India follows adversarial model to dispose the
criminal matters but in reality India also follow some of the features of inquisitorial model.
No model is complete in itself; one or other has few merits as well as demerits. When we
think from Indian perspective, we observed that the various committees and various High
Courts expressed their views that it is the time to incorporate useful features of inquisitorial
model to make a balance to protect the rights of victims of crime and the accused so
ultimately it will be useful to achieve the ends of justice.

References.
 https://www.unodc.org

 https://www.legalserviceindia.com

 https://www.juscorpus.com

 https://www.lawteacher.net

 https://www.ijlsi.com