Filing of F.I.

R
ASSIGNMENT

Topic: - Comparative Analysis of Adversarial and Inquisitorial System

of Criminal Justice.

Submitted by:
Shubhrajit Saha
BA LLB (H) 5th semester
Enrolment No.: - A90811115045
 ACKNOWLEDGEMNENT

I would like to express my special thanks of gratitude to my Filing of

F.I.R teacher, Dr. Rakesh Kumar Singh, who gave me the golden
opportunity to work on this wonderful topic: Comparative Analysis of
Adversarial and Inquisitorial System of Criminal Justice. I came to
know about so many new things and I am really thankful for it.

Secondly, I would like to thank my friends who have helped me a lot

in finalizing this project within the limited time frame.
Introduction

The adversarial system or adversary system is a legal system used in the common law countries
where two advocates represent their parties' case or position before an impartial person or group
of people, usually a jury or judge, who attempt to determine the truth and pass judgment
accordingly. It is in contrast to the inquisitorial system used in some civil law systems (i.e.
those deriving from Roman law or the Napoleonic code) where a judge investigates the case.
The adversarial system is the two-sided structure under which criminal trial courts operate that
pits the prosecution against the defense.

An inquisitorial system is a legal system where the court or a part of the court is actively
involved in investigating the facts of the case, as opposed to an adversarial system where the
role of the court is primarily that of an impartial referee between the prosecution and the
defense. Inquisitorial systems are used primarily in countries with civil legal systems as
opposed to common law systems. Countries using common law, including the United States,
may use an inquisitorial system for summary hearings in the case of misdemeanours such as
minor traffic violations. The distinction between an adversarial and inquisitorial system is
theoretically unrelated to the distinction between a civil legal and common law system. Some
legal scholars consider inquisitorial misleading, and prefer the word non-adversarial. The
function is often vested in the office of the public procurator, as in Russia, China, Japan,
Germany, and Scotland.

Adversarial System

History

Some writers trace the process to the medieval mode of trial by combat, in which some litigants,
notably women, were allowed a champion to represent them. The use of the jury in the common
law system seems to have fostered the adversarial system and provides the opportunity for both
sides to argue their point of view.

Basic Features
As an accused is not compelled to give evidence in a criminal adversarial proceeding, they may
not be questioned by a prosecutor or judge unless they choose to do so. However, should they
decide to testify, they are subject to cross-examination and could be found guilty of perjury.
As the election to maintain an accused person's right to silence prevents any examination or
cross-examination of that person's position, it follows that the decision of counsel as to what
evidence will be called is a crucial tactic in any case in the adversarial system and hence it
might be said that it is a lawyer's manipulation of the truth. Certainly, it requires the skills of
counsel on both sides to be fairly equally pitted and subjected to an impartial judge.

By contrast, while defendants in most civil law systems can be compelled to give a statement,
this statement is not subject to cross-examination by the prosecutor and not given under oath.
This allows the defendant to explain his side of the case without being subject to cross-
examination by a skilled opposition. However, this is mainly because it is not the prosecutor
but the judges who question the defendant. The concept of "cross"-examination is entirely due
to adversarial structure of the common law.

Judges in an adversarial system are impartial in ensuring the fair play of due process, or
fundamental justice. Such judges decide, often when called upon by counsel rather than of their
own motion, what evidence is to be admitted when there is a dispute; though in some common
law jurisdictions judges play more of a role in deciding what evidence to admit into the record
or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision,
rendering obsolete the judicial process in questionrule of law being illicitly subordinated by
rule of man under such discriminating circumstances.

The rules of evidence are also developed based upon the system of objections of adversaries
and on what basis it may tend to prejudice the trier of fact which may be the judge or the jury.
In a way the rules of evidence can function to give a judge limited inquisitorial powers as the
judge may exclude evidence he/she believes is not trustworthy or irrelevant to the legal issue
at hand.

All evidence must be relevant and not hearsay evidence.

Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated
judge in an English (adversarial) court finally asked a barrister after witnesses had produced
conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied
counsel.

The name "adversarial system" may be misleading in that it implies it is only within this type
of system in which there are opposing prosecution and defense. This is not the case, and both
modern adversarial and inquisitorial systems have the powers of the state separated between a
prosecutor and the judge and allow the defendant the right to counsel. Indeed, the European
Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features
in the legal systems of its signatory states.

The right to counsel in criminal trials was initially not accepted in some adversarial systems. It
was believed that the facts should speak for themselves, and that lawyers would just blur the
matters. As a consequence, it was only in 1836 that England gave suspects of felonies the
formal right to have legal counsel (the Prisoners' Counsel Act 1836), although in practise
English courts routinely allowed defendants to be represented by counsel from the mid-18th
century. During the second half of the 18th century advocates like Sir William Garrow and
Thomas Erskine, 1st Baron Erskine helped usher in the adversarial court system used in most
common law countries today. In the United States, however, personally retained counsel has
had a right to appear in all federal criminal cases since the adoption of the Constitution and in
state cases at least since the end of the Civil War, although nearly all provided this right in their
state constitutions or laws much earlier. Appointment of counsel for indigent defendants was
nearly universal in federal felony cases, though it varied considerably in state cases. It was not
until 1963 that the U.S. Supreme Court declared that legal counsel must be provided at the
expense of the state for indigent felony defendants, under the federal Sixth Amendment, in
state courts. See Gideon v. Wainwright, 372 U.S. 335 (1963).

One of the most significant differences between the adversarial system and the inquisitorial
system occurs when a criminal defendant admits to the crime. In an adversarial system, there
is no more controversy and the case proceeds to sentencing; though in many jurisdictions the
defendant must have allocution of her or his crime; an obviously false confession will not be
accepted even in common law courts. By contrast, in an inquisitorial system, the fact that the
defendant has confessed is merely one more fact that is entered into evidence, and a confession
by the defendant does not remove the requirement that the prosecution present a full case. This
allows for plea bargaining in adversarial systems in a way that is difficult or impossible in
inquisitional system, and many felony cases in the United States are handled without trial
through such plea bargains.

In some adversarial legislative systems, the court is permitted to make inferences on an

accused's failure to face cross-examination or to answer a particular question. This obviously
limits the usefulness of silence as a tactic by the defense. In England the Criminal Justice and
Public Order Act 1994 allowed such inferences to be made for the first time in England and
Wales (it was already possible in Scotland under the rule of criminative circumstances). This
change was disparaged by critics as an end to the 'right to silence', though in fact an accused
still has the right to remain silent and cannot be compelled to take the stand. The criticism
reflects the idea that if the accused can be inferred to be guilty by exercising their right to
silence, it no longer confers the protection intended by such a right. In the United States, the
Fifth Amendment has been interpreted to prohibit a jury from drawing a negative inference
based on the defendant's invocation of his right not to testify, and the jury must be so instructed
if the defendant requests.

Inquisitorial System

Overview

In an adversarial system, judges focus on the issues of law and procedure and act as a referee
in the contest between the defense and the prosecutor. Juries decide matters of fact, and
sometimes matters of the law. Neither judge nor jury can initiate an inquiry, and judges rarely
ask witnesses questions directly during trial. In some American jurisdictions, it is common
practice for jurors to submit questions to the court that they feel were not resolved in direct or
cross-examination. After testimony and other evidence are presented and summarized in
arguments, the jury will declare a verdict (literally: "the spoken truth") and in some
jurisdictions the reasoning behind the verdict. However, the discussions among jurors cannot
be made public except in extraordinary circumstances. Appeals on the basis of factual issues,
such as sufficiency of the sum total of evidence that was properly admitted, are subject to a
standard of review that is in most jurisdictions heavily deferential to the judgment of the fact-
finder at trial, be that a judge or a jury. The failure of a prosecutor to disclose evidence to the
defense, for example, or a violation of the defendant's constitutional rights (legal
representation, right to remain silent, an open and public trial) can trigger a dismissal or re-
trial. In some adversarial jurisdictions (e.g., the United States), a prosecutor cannot appeal a
"not guilty" verdict (absent corruption or gross malfeasance by the court).

In adversarial systems, the defendant may plead "guilty" or "no contest" in exchange for
reduced sentences, a practice known as plea bargaining, which is an extremely common
practice in the United States. In theory, the defendant must allocute or "voice" his or her crimes
in open court, and the judge must believe the defendant is telling the truth about his or her guilt.
In an inquisitorial system, a mere confession of guilt would not be regarded as ground for a
guilty verdict, and the prosecutor is required to provide evidence supporting a guilty verdict;
however, this requirement is not unique to inquisitorial systems, as many or most adversarial
systems impose a similar requirement under the name corpus delicti.

In an inquisitorial system, the trial judges (mostly plural in serious crimes) are inquisitors who
actively participate in fact-finding public inquiry by questioning defense, prosecutors and
witnesses. They could even order certain pieces of evidence to be examined if they find
presentation by the defense or prosecution to be inadequate.
The inquisitorial system applies to questions of criminal procedure, not substantive law; that
is, it determines how criminal inquiries and trials are conducted, not the kind of crimes for
which one can be prosecuted or the sentences that they carry. It is most readily used in some
civil legal systems. However, some jurists do not recognize this dichotomy and see procedure
and substantive legal relationships as being interconnected and part of a theory of justice as
applied differently in various legal cultures.

History
Until the development of the Medieval Inquisition in the 12th century, the legal systems used
in medieval Europe generally relied on the adversarial system to determine whether someone
should be tried and whether a person was guilty or innocent. Under this system, unless people
were caught in the act of committing crimes, they could not be tried until they had been
formally accused by their victim, the voluntary accusations of a sufficient number of witnesses,
or by an inquest (an early form of grand jury) convened specifically for that purpose. A
weakness of this system was that because it relied on the voluntary accusations of witnesses,
and because the penalties for making a false accusation were severe, victims and would-be
witnesses could be hesitant to actually make their accusations to the court, for fear of
implicating themselves. Because of the difficulties in deciding cases, procedures such as trial
by ordeal or combat were accepted.

Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the ecclesiastical
court system. Under the new processus per inquisitionem (inquisitional procedure) an
ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant.
Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative,
and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person
could then be summoned and tried. In 1215, the Fourth Council of the Lateran affirmed the use
of the inquisitional system. The council also forbade clergy from conducting trials by ordeal or
combat. As a result, in parts of continental Europe, the ecclesiastical courts operating under the
inquisitional procedure became the dominant method by which disputes were adjudicated. In
France, the parlements and lay courts also employed inquisitorial proceedings.

In England, however, King Henry II had established separate secular courts during the 1160s.
While the ecclesiastical courts of England, like those on the continent, adopted the inquisitional
system, the secular common law courts continued to operate under the adversarial system. The
adversarial principle that a person could not be tried until formally accused continued to apply
for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna
Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his
law, without credible witnesses brought for this purposes."
The first territory to wholly adapt the inquisitional system was the Holy Roman Empire. The
new German legal process was introduced as part of the Wormser Reformation of 1498 and
then the Constitutio Criminalis Bambergensis of 1507. The adoption of the Constitutio
Criminalis Carolina ("Peinliche Gerichtsordnung" of Charles V) in 1532 made inquisitional
procedures empirical law. It was not until Napoleon introduced the code d'instruction
criminelle of the French code of criminal procedure on November 16, 1808, that the classical
procedures of inquisition were ended in all German territories.

In the development of modern legal institutions which occurred in the 19th century, for the
most part jurisdictions did not only codify their private law and criminal law, but the rules of
civil procedure were reviewed and codified as well. It was through this movement that the role
of an inquisitorial system became enshrined in most European civilian legal systems. However,
there exist significant differences of operating methods and procedures between 18th century
ancien rgime courts and 19th-century courts. In particular, limits on the powers of
investigators were typically added, as well as increased rights of the defense.

It would be too much of a generalization to state that the civil law is purely inquisitorial and
the common law adversarial. Indeed, the ancient Roman custom of arbitration has now been
adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil
law systems such as those in Scotland, Quebec, and Louisiana, while the substantive law is
civil in nature and evolution, the procedural codes that have developed over the last several
hundred years are based upon the English adversarial system.

Modern Usage
France
The main feature of the inquisitorial system in criminal justice in France and other countries
functioning along the same lines is the function of the examining or investigating judge (juge
d'instruction). The examining judge conducts investigations into serious crimes or complex
inquiries. As a member of the judiciary, he or she is independent and outside the province of
the executive branch, and therefore separate from the Office of Public Prosecutions which is
supervised by the Minister of Justice.
Despite high media attention and frequent TV portrayals, examining judges are actually active
in only a small minority of cases. In 2005, there were 1.1 million criminal rulings in France,
while only 33,000 new cases were investigated by judges. The vast majority of cases are
therefore investigated directly by law enforcement agencies (police, gendarmerie) under the
supervision of the Office of Public Prosecutions (procureurs).
Examining judges are used for serious crimes, e.g., murder and rape, and for crimes involving
complexity, such as embezzlement, misuse of public funds, and corruption. The case may be
brought before the examining judge either by the public prosecutor (procureur) or, more rarely,
by the victim (who may compel an instruction even if the public prosecutor rules the charges
to be insufficient).
The judge questions witnesses, interrogates suspects, and orders searches for other
investigations. Their role is not to prosecute the accused, but to gather facts, and as such their
duty is to look for any and all evidence ( charge et dcharge), incriminating or exculpatory.
Both the prosecution and the defense may request the judge to act and may appeal the judge's
decisions before an appellate court. The scope of the inquiry is limited by the mandate given
by the prosecutor's office: the examining judge cannot open a criminal investigation sua sponte.
In the past the examining judge could order committal of the accused, this power being subject
to appeal. However, this is no longer the case, and other judges have to approve a committal
order.
If the examining judge decides there is a valid case against a suspect, the accused is sent for
adversarial trial by jury. The examining judge does not sit on the trial court which tries the case
and is in fact prohibited from sitting for future cases involving the same defendant. The case is
tried before the court in a manner similar to that of adversarial courts: the prosecution (and on
occasion a plaintiff) seeks the conviction of accused criminals, the defense attempts to rebut
the prosecution claims, and the judge and jury draw their conclusions from the evidence
presented at trial.
As a result of judicial investigation and defendants being able to have judicial proceedings
dismissed on procedural grounds during the examining phase, cases where the evidence is weak
tend not to reach the trial stage. Conversely, the guilty plea and plea bargaining were until
recently unknown to French law, and now it only applies to crimes for which the prosecution
seeks a sentence not exceeding one-year imprisonment. Therefore, most cases go to trial,
including cases where the prosecution is almost sure to gain a conviction, whereas, in countries
such as the United States, these would be settled by plea bargain.

Other Types
Administrative justice

In administrative courts such as the Council of State, litigation proceedings are markedly more
inquisitorial. Most of the procedure is conducted in writing; the plaintiff writes to the court,
which asks explanations from the administration or public service concerned; when answered,
the court may then ask further detail from the plaintiff, etc. When the case is sufficiently
complete, the lawsuit opens in court; however, the parties are not even required to attend the
court appearance. This method reflects the fact that administrative lawsuits are for the most
part about matters of formal procedure and technicalities.
Inquisitorial tribunals within the United States

Certain administrative proceedings within some common law jurisdictions in the United States
may be similar to their civil law counterparts but are conducted on a more inquisitorial model.
For instance, tribunals dealing with minor traffic violations at the New York City Traffic
Violations Bureau are held before an adjudicator who also functions as a prosecutor. They
question witnesses before rendering judgements and setting fines.

These types of tribunals or boards function as an expedited form of justice where the state
agents conduct an initial investigation and the adjudicator's job is to confirm these preliminary
findings through a simplified form of procedure that grants some basic amount of due process
or fundamental justice in which the accused party has an opportunity to place his or her
objections on the record.

Comparison of Adversarial and Inquisitorial System:

The judicial system, also called the judiciary, the courts system or the court organization that
interprets, upholds and applies the law in a country, or sovereign state. It provides a system of
dispute resolution as required by law. It is not the responsibility of the judiciary to draft or
create the law but to interpret band apply it to the cases involved. The word judiciary also refers
to the personnel, magistrate and judges, collectively as well as the entire staff that ensures
smooth running of the system. The lawmakers did not allow the judges to interpret the law
slightly before the French revolution and afterwards. This was the sole purpose of the
legislature but the napoleon code dissolved this ban. In France for instance, no new law is made
by a judge but rather expounds on the intentions of the legislature. The call is made by the
doctrine writers and not the judges thus influencing the judicial.

In most common law countries e.g. Wales, England and the United States of America, a system
of justice called the adversarial system is used. This is totally different from the inquisitorial
system that is used particularly in many European countries and continental jurisdictions. The
sitting magistrate or a jury, in more serious cases, determines the guilty party after listening to
the prosecution and opposing defence presentations on the case. The witnesses can be called
and examined as much as the prosecution and defence would wish since both parties are
allowed to present their case as they wish but however, within boundaries as per the law. The
two parties engage in a debate and whoever will display a better argument and best represents
the interests of their clients wins the case. Hodgson (2005) says that the judge is generally there
to ensure the proceedings are carried out in a fair and just manner according to the law acting
as a referee or a partial arbiter between the concerned parties.
Inquisitorial system is that applied by most European countries under civil law for example
France. This means countries that derived their law from the Napoleonic or roman codes. This
system demands a judge to investigate actively the case in front of them. It is a legal system
whereby the court is involved in determining the case facts partially or fully depending on the
seriousness of the offence. The inquisitorial system does not determine the kind of crimes that
is to be prosecuted or the sentences they carry but rather the way and procedure in which the
trials and criminal inquiries are conducted. Hence this system applies to criminal procedure a
different from issues of dealing with substantial law. Parkes (2003) found that the difference
between the adversarial and the inquisitorial systems is commonly blurred and hard to tell as
sometimes the admissibility rules of the adversarial system allows a judge to take the role of
an enquirer rather than an arbiter. The inquisitorial judicial system is used more widely
nowadays than the adversarial judicial system. Other countries use both the inquisitorial and
adversarial elements in their judicial system. An example of such a country is Italy.

In an adversarial legal system, previous decisions made by higher Courts form a precedent
which will bind the lower Courts. In contrast, Judges in an inquisitorial legal system tend to be
free to make decisions on a case-by-case basis.

The principle behind the adversarial legal system is to place distance between the investigation
taking place and the person who ultimately decides the outcome. The system empowers the
parties to the dispute to take control of their own case on the basis that they (as opposed to a
judge) are better placed to present their best case.

However, even though an English Judge may not decide what matters to investigate and how
to do so, his role is by no means passive. Under the Civil Procedure Rules ("CPR") which came
into force in 1999, the Court has very wide case management powers which are used to ensure
that the dispute is resolved efficiently and in accordance with the CPRs overriding objective
of enabling the Court to deal with cases justly and at a proportionate cost. The Court will do so
by excluding superfluous evidence, managing the parties' costs, and setting a strict timetable
to Trial under threat of sanction should any of the dates be missed.

There is, however, a perceived unfairness in the adversarial legal system in situations where
the parties do not have 'equality of arms'; a better resourced party may be more able to gather
evidence and present a stronger case to the Judge than their opposition. Furthermore, because
the parties have near complete conduct of the case from start to judgment, they are able to
choose what evidence they put before the Court. In comparison, in an inquisitorial system the
Judge is involved throughout the process and actually steers the collation and preparation of
evidence. He is therefore able to decide what evidence is admitted by both parties, before
questioning the witnesses himself and going on to make an informed decision on the outcome.

That said, given the importance placed on the investigative role of an inquisitorial Judge, the
risk of bias is (arguably) greater in an inquisitorial system.
Comparison in India

Adversarial Criminal Justice System

The system followed in India for dispensation of criminal justice is the adversarial system of
common law inherited from the British Colonial Rulers. The accused is presumed to be
innocent and the burden is on the prosecution to prove beyond all reasonable doubt that he is
guilty. 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 right1 and also a universally
recognised right of the accused under Art. 14 of the International Convention on Civil and
Political rights.

In the adversarial system truth is supposed to emerge from the respective versions of facts
presented by the prosecution and the defence before a neutral judge. The judge acts like an
umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt.
The trial is oral, continuous and confrontational. 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.

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.

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 predisposed to a
formulation of the critical propositions. As the adversarial system does not impose a positive
duty on the judge to discover truth he plays a passive role. Along with this the individuals
right to privacy is best preserved under it.

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 most of
legal cases in this system do not go to trial; this can lead to great injustice when accused has an
unskilled or overworked attorney. 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 justice delayed results into justice denied. When
we discuss about the role of victim then we found that, victim act as a mere witness as he
doesnt have any place under the entire procedure of criminal justice system.

In the adversarial criminal justice 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.

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. 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 main feature of this system is that, the exclusionary rules of evidence hardly exist
and at the same time hearsay evidence (rules) is unknown.

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 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. Victim plays an important role at every
stage of the case.

The disadvantage of inquisitorial system is that there is lack of chances of fair trial and another
thing is that participation of the court in the investigation of the case may lead to biased attitude
while deciding the case. Right to privacy of the accused is denied and the accused is exposed
to express everything which he need not express keeping in view of merit of case.

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. In
India there is contrary views about the model, the various High Courts of India expressed their
views about the present criminal justice system. The High Courts of Allahabad, Andhra
Pradesh, Kerala, and Punjab & Haryana have said that the present system is satisfactory. The
High Courts of Jharkhand and Uttaranchal have opined that the Adversarial System has failed.
The High Courts of Bombay, Chhattisgarh, Delhi, Himachal Pradesh, Kolkata, Madras,
Madhya Pradesh and Orissa have expressed that the present system is not satisfactory. Some
of them say that there is scope for improving the Adversarial System by adopting some of the
useful features of the Inquisitorial System.
The majority of High Courts give stress on to make some changes in the existing criminal
justice system. The former President of India, Dr. R. Venkataraman also made observation
about present system:

The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they
were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but
only decides whether the charge has been proved by the prosecution. The Judge is not
concerned with the truth; he is only concerned with the proof. Those who know that the
acquitted accused was in fact the offender, lose faith in the system.

The judge should play active role to find out the truth, he concerns only about the proof as the
evidences which lead before him on that basis he decides the case. The judge doesnt have any
role in the matter of investigation though he acted neutrally to decide the case. The Supreme
Court has criticized the passive role played by the judges and the importance of finding truth
in several cases. It is the duty of a court not only to do justice but also to ensure that justice is
being done.

In India there is voice on the part of jurist, Law Commission and even some of the High Courts
to include some of the principles of inquisitorial model. To study these features are essential.
To study the status and position of victim under criminal proceeding it is essential to analyse
the interaction of the victims with the constituent elements of the criminal justice system i.e.
the police, lawyers and courts and the role played by him at each stage of the criminal process.

Victims of crime are important players in criminal justice administration both as

complainant/informant and as witness for the police/prosecution. Despite the system being
heavily dependent on the victim, criminal justice has been concerned with the offender and his
interests almost subordinating or disregarding the interests of victim. In the civil law systems
generally, the victims enjoyed a better status in administration of criminal justice. Towards the
last quarter of the twentieth century, the common law world realized the adverse consequences
arising from this inequitable situation and enacted laws giving rights of participation and
compensation to the victims.
The criminal justice system in India is excessively loaded in favour of the accused. The main
principle on which the system of legal jurisprudence is based is to let ninety-nine persons get
away free than to have even one innocent man punished. This tenet, while preventing injustice
to one innocent, denies justice to ninety-nine victims of crime.

The victims experience with the professionals operating the system, police, prosecution and
court are not good that results into the formation of definite attitudes on the part of the victim
towards all of them. If victims come to regard their treatment as too stressful, demeaning,
unfair, distorting of reality, too remote or too little concerned with their own rights, feelings
and interests or if decisions are made which are felt to be unsatisfactory, it is possible that their
faith should be reduced and ultimately lead to disenchantment, disinterest and future non-
cooperation by the victim.
 BIBLIOGRAPHY

1. https://www.lawctopus.com/academike/comparison-trial-procedure-
indian-courts-franch-courts/
2. https://www.lawteacher.net/free-law-essays/constitutional-
law/inquisitorial-and-adversarial-system-of-law-constitutional-law-
essay.php
3. https://www.ashfords.co.uk/article/differences-between-an-adversarial-
and-an-inquisitorial-legal-system
4. http://shodhganga.inflibnet.ac.in/bitstream/10603/89957/12/13_chaptger
%20-v.pdf