JAMIA MILLIA ISLAMIA

COMPARITIVE CONSTITUTION
PROJECT WORK ON

FEDERALISM

SUBMITTED TO: SUBMITTED BY:

MR. OWAIS FAROOQUI SHAMA PRAVEEN

FACULTY OF LAW LLM-1st YEAR

JAMIA MILLIA ISLAMIA STUDENT ID-20176012

1
 Contents
chapters page no.

(I). table of cases.3

1. introduction4-5

2.adversarial system..6-16

Concept..6
History7
Basic tenets of adversarial system..7-10
Adversarial system in India..10-13
Advantages of adversarial system14
Disadvantages of adversarial system.14
Comparison with inquisitorial system..15-16

3. inquisitorial system17-26

Concept..17-18
History.18-19
INQUISITORIAL SYSTEM IN COMMON LAW COUNTRIES.20
Basic tenets of inquisitorial system20-21
Advantages of inquisitorial system.22
Disadvantages of inquisitorial system..22
Comparison with adversarial system..23-26

4. PROVISION REFLECTING INQUISITORIAL SYSTEM IN INDIA..27-31

5. THE NEED FOR REFORM..32-33

6. COMPARATIVE TABLE OF ADVERSARIAL SYSTEM & INQUISITORIAL SYSTEM..34

2
7. CONCLUSION.35

8. BIBLIOGRAPHY..36

TABLE OF CASES
1. Kashmiri Devi vs. Delhi Administration & ors. (AIR 1983 scc 1323)

2. Sakiri Basu vs. State of U.P & others

3. V.k Thampi vs. Collector of Central Excise (1996)

4. V. Purushottam vs. Union of India ( 2001 SCC 353)

5. . State vs. Sunil (AIR 2004, SC 253)

6. Mohd. Hussain @ julfikar Ali vs. State (2012)

3
 CHAPTER 1

Introduction:
The purpose of any criminal justice system is to punish the offender and protect the innocent.
Offenders are the threat to the society. State machinery is operative to prevent the crime and
penalize the offender. But it is a matter of concern for all that innocent must not suffer in the name
of justice. There seem two models in general, which provides different measures to deal with the
offender to bring him to justice. They may be broadly termed as inquisitorial model and
adversary model of justice. Both justice systems insist upon right adjudication of the accused
and protection of the innocent. But there are basic differences as to rules of procedures in each of
these systems. Each system has been developed in its own historical setting. Each system has its
own advantages and disadvantage. Each system can serve the purpose of justice if it is aware of
the disadvantages relating to it and has taken measures to minimize it.1

The two prevalent legal system in the world are the: ADVERSARIAL SYSTEM ( Accusatorial or
the Common law system) & and INQUISITORIAL SYSTEM (Continental or the Civil Law
System.)

The terms adversarial and inquisitorial derive from the procedures used to resolve crucially the
issues which arise to be determined by litigation under the criminal and civil laws of those
countries. Very broadly speaking, in an adversarial system, the parties choose what material is to
be placed before the court or tribunal. In an inquisitorial system, the court or tribunal may itself

1
Prof. Madhav Prasad Acharya, The Adversarial v. Inquisitorial Models of Justice,Kathmandu School of Law. Article
reprinted from KSL Journal (Vol. 1)

4
play a part in investigating the evidence upon which the matter is decided, or in investigating the
ultimate issue.2

Inquisitorial is also often used popularly in a narrower sense, as referring to a perception of the
role of the Investigating judge or magistrate in France or Italy. Sometimes, however, the terms
are used more broadly, to refer to the entire legal system of a country. The two systems are
frequently regarded as entirely disparate; however the practical differences between the systems
have diminished over time. It is unlikely that the twain shall meet, but their operations today
have many similarities and, in the future, are likely to have more.3

David Jackson, Adversarial and Inquisitorial Systems, Medico-Legal Society of NSW Inc., Scientific Meeting -
2

March 2009
3
Ibid
5
 CHAPTER 2

Adversarial System:
2.1Concept:
According to Advanced Law Lexicon 4,adversarial procedure means, A procedural system,
such as the American Legal system, involving active & unhindered parties contesting with
each other to put forth a case before an independent decision maker. Also termed as adversary
procedure and in criminal cases accusatorial system or accusatory procedure

In a common law system, an adversarial approach is used to investigate & adjudicate guilt or
innocence. The adversary system assumes that truth is most likely to result from the open
competition between the prosecution and the defense. Primary responsibility for the presentation
of evidence and legal arguments lies with the opposing parties, not with the judge. Each side,
acting in its self-interest, is expected to present facts and interpretations of the law in a way most
favorable to its interest. The approach presumes that the accused is innocent, and the burden of
proving guilt rests with the prosecution. Through counterargument and cross-examination, each
side is expected to test the truthfulness, relevancy and sufficiency of the opponents evidence and
arguments.5

Adversary systemis a legal system where two advocates represent their parties' positions before
an impartial person or group of people, usually a jury or judge, who attempt to determine the

4
P.Ramnath Aiyar,Advanced law lexicon, Book 13th edition, 2005 p.152
5
http/www.judiciary.gov.bt/html/court/trial.php
6
truth of the case. As opposed to that, the inquisitorial system has a judge (or a group of judges
who work together) whose task is to investigate the case.6

The adversarial system is the two-sided structure under which criminal trial courts operate that
pits the prosecution against the defense. Justice is done when the most effective adversary is able
to convince the judge or jury that his or her perspective on the case is the correct one. This
system relies on the skill of the different advocates representing their party's positions and not on
some neutral party, usually the judge, trying to ascertain the truth of the case.7

2.2. History:
The adversary regime, a legacy of Anglo-American legal culture, is splendid in principle in many
respect and is a victory in practice for human rights, viewed historically with star chamber
memory, but is hostile to the actualization of court justice unless operational innovations to
conscientize, sensitize and radicalize current judicial methodology be creatively and crusadingly
undertaken.8But some writers trace the adversarial process to the medieval mode of trial by
combat, in which some litigants, notably women, were allowed a champion to represent them.
The jury in the common law system seems to have fostered the adversarial system, and there are
many today who believe that it remains the best way of providing for the determination of a
disputed issue. On the other hand, the new British Civil Justice reforms initiated by Lord Woolf
(the Civil Procedure Rules or CPR) are prefaced with a case management system. 9

The adversarial system is generally adopted in common law countries. An exception, for instance
in the U.S., may be made for minor violations, such as traffic offenses& in India the state
of Goa and the union territory of Daman and Diu follow a Civil Law based on Portuguese civil
law. The rest of India follows English common law.10On the continent of Europe among some
civil law systems (i.e. those deriving from Roman law or the Napoleonic Code), the inquisitorial
system may be used for some types of cases.11

6
Ibid
7
Ibid
8
A Constitutional Miscellany, V.R. Krishna Iyer, 2nd Edn. P. 194.
9
http://www.experiencefestival.com/adversarial_system_-_history_of_the_adversarial_process.
10
http://en.wikipedia.org/wiki/List_of_country_legal_systems
11
http://en.wikipedia.org/wiki/Adversarial_system
7
2.3. Basic Tenets of Adversarial
System:
As an accused is not compelled to give evidence in a criminal adversarial proceeding, he may not
be questioned by prosecutor or judge unless he chooses to do so. However, should he decide to
testify, he is 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.12

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.13

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.14

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

12
http://en.wikipedia.org/wiki/Adversarial_system#Basic_features
13
Ibid
14
Ibid
8
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.15

As said by Judge Megan L.A Brown that all evidence must be relevant and not hearsay
evidence.16

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.17

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.18

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 allowed suspects of felonies the
right to have legal counsel (the Prisoners' Counsel Act 1836).19 In the United States, however,
personally retained counsel have 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.20

15
Ibid
16
Ibid
17
Ibid
18
Class notes,
19
See the Prisoners' Counsel Act 1836
20
See Gideon v. Wainwright, 372 U.S. 335 (1963)
9
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, a 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.21

Another difference is in the rules of evidence. Because the adversarial system assumes that the
evidence is to be presented to laymen rather than to jurists, the rules of evidence are considerably
stricter. Rules on hearsay are much stricter in most adversarial systems than in inquisitorial
systems; though often lower tribunals are allowed some flexibility in applying the strict rules of
common law evidence such as in Domestic or in small claims proceedings where the parties are
often unrepresented by lawyers and the judge functions as more of an inquisitor to protect the
interests of children than a neutral arbiter of justice.22

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 (Kelkar,
2008)(Iyer)still has the right to remain silent and cannot be compelled to take the stand. 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.23

21
Supra note 16
22
Supra note 10
23
Ibid
10
2.4. Adversarial System in India:
Most modern states are constituted on democratic principles. To ensure that democracy becomes
a reality and liberties of individuals are preserved, they try to ensure that the principle of
separation of powers between the legislature, executive and the judiciary is not violated. In India
all the powers being exercised by the state derives from the Constitution. The constitution of
India has also enjoined the state to ensure that the judiciary be separated from the executive, in
its directive principles.24

ARTICLE 14OF the Indian Constitution states that The State shall not deny to any person
equality before law and equal protection of law within the territory of India.

The constitution of India places emphasis on the assurance of the dignity of the individual. There
are pre-declared laws which can be known by every citizen by personal study or through the
agency of a lawyer, he can enter into contracts and quasi contracts as per those pre- declared
laws, which crystallize into rights which can be enforced through the law courts whenever there
is a violation. The citizen can avoid flouting pre- declared laws defining crimes precisely and
avoid the pre- announced penalties. A citizen can violate the laws and boldly suffer the penalties
as a protest, to bring about reforms, as done by Gandhi Ji during the freedom movement.25

The well recognized fundamental principles of criminal jurisprudence

are presumption of innocence and right to silence of the accused, burden of
proof on the Prosecution and the right to fair trial.

The primary responsibility of the State is to maintain law and orders that citizens can enjoy peace
and security. Life and personal liberty being very precious rights, their protection is
guaranteed to the citizens as a fundamental right under Article 21 of our Constitution.
This right is internationally recognized as a Human Right. Right to property which once had the
status of a fundamental right in our Constitution is now relegated to a constitutional right under
Article 300A of the Constitution. Many times deprivation of right to property leads to
invasion of personal liberty. The Stat discharges the obligation to protect life, liberty

24
Supra note 1
25
Malimath committee Report, 2003 ,p 23
11
and property of the citizens by taking suitable preventive and punitive measures
which also serve the object of preventing private retribution so essential for maintenance
of peace and law and order in the society. Substantive penal laws are enacted prescribing
punishment for the invasion of the rights. When there is an invasion of these rights of the
citizens it becomes the duty of the State to apprehend the person guilty for such
invasion, subject him to fair trial and if found guilty to punish him. Substantive penal laws can
be effective only when the procedural laws for enforcing them
are efficient. This in essence is the function of the criminal justice system.

V.K. Thampi Vs. Collector Of Central Excise (1996) THE Supreme court has said that : The
postulate of adversary system of dispensation of justice presumes hearing the party seeking redress
in the context. This hearing, if considered in terms of fairness and reasonableness enunciates basic
and fundamental principle that as far as possible, depending on the facts and circumstances of the
case under consideration, there has to be an end of solution on a context and this basic approach
requires safeguarding of this aspect of hearing also in terms of fairness and reasonableness. The
adversary system has also made it necessary to appreciate and understand participation of the
members of the profession of law as representatives of the person seeking redress in the context.

In V.Purushottam Rao vs. union of India26 (2001) the Supreme court said that: the principles of
S.11 as well as Order 2 Rule 2 of the civil procedure code undoubtedly contemplate an adversarial
system of litigation, where the court adjudicates the rights of the parties and determines the issues
arising in the given case. The public interest litigation or a petition filed by a public cannot be held
to be an adversarial system of adjudication and the petitioner of the case, merely brings to the
notice of the court, as to how and in what manner the public interest is being jeopardized by
arbitrary and caprious actions of the authorities.

In state vs. sunil @ jony (2009)27it was observed by the supreme court that India has adopted the
adversarial system od common law for the dispensation of criminal justice. In the adversarial
system every person accused of the offence is presumed to be innocent so that burden lies on the

26
2001 (10)SCC 305
27
AIR 2004 sc 1253
12
prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which
the accused is charged are made out. The accused enjoys the right to silence & cannot be
compelled to reply. The judges act like a neutral umpire to see whether the prosecution has been
able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused.

Inanother case the supreme court explained the importance of Adversarial system: in the case of
Mohd. Hussain@ Julfikar Ali vs. The State (gov. of NCT)28(2012)the supreme court has held
that: Not only those precedents but also reason and reflection require us to recognize that in our
adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer
cannot be assured fair trial unless counsel is provided for him. In our adversary system of criminal
justice, any person facing trial can be assured a fair trial only when the counsel is provided to him.
Its roots are many and find places in manifold ways.

2.5 The system followed in India:

For dispensation of criminal justice inthe 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 reasonable doubt that he is guilty. The accused also enjoys
the right to silence and cannot be compelled to reply. The aim of the Criminal Justice System is
to punish the guilty and protect theinnocent. In the adversarial system truth is supposed to
emerge from the respective versions of the facts presented by the prosecution and the defense
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 and gives the benefit of doubt to the
accused. It is the parties that determine the scope of dispute and decide largely, autonomously
and in a selective manner on the evidence that they decide to present to the court. The trial is oral,
continuous and confrontational. The parties use cross-examination of witnesses to
undermine the opposing case and to discover information the other side has not brought out.
The judge in his anxiety to maintain his position of neutrality never takes any initiative to
28
2012 CR. APPEAL NO. 1091
13
discover truth. He does not correct the aberrations in the investigation or in the matter of
production of evidence before court. As the adversarial system does not impose a positive duty on
the judge to discover truth he plays a passive role. The system is heavily loaded in favour of
the accused and is insensitive to the victims plight and rights. 29

2.6Advantages of Adversarial
System:
(a) It insists upon strict observance of procedural law. Due process of law is regarded as
the most appropriated method to attain justice. Violation of procedure leads to exclusion
of evidence in the court.

(b) The position of the court is regarded as that of an umpire. Both parties contest in the
court. The court is to see whether the game being played before it is fair and conducive to
justice or not.

(c) The representation of lawyer from both sides is indispensable.

(d) The accused has right to silence. He need not give evidence from his side.
Prosecution must prove the guilt beyond reasonable doubt. The accused may claim
benefit of doubt.

(e) Individual's right to privacy is best preserved under it.30

2.7Disadvantages of Adversarial
System:
(a) The accused does not help the police. The police must work on his own strength against the
accused.
(b) Too much insistence upon procedure some time may lead to acquittal of the
accused and impunity on the offence.

29
Ibid
30
Supra note 1
14
(c) The judge in the court as an umpire is a misleading conception. It is desirable to
expect that the judge is there to do justice and that justice isdone by whatever means it is
possible.

(d) Contest on technical error in the court is possible. The court is helpless to correct it.
(e) The police sometime may not be able to find sufficient evidence against the accused.
He cannot expect any help from the accused. This leads todropping-out of the case.31

2.8Comparison with Inquisitorial

System:
In many jurisdictions the approaches of each system are often formal differences in the way
cases are reviewed. It is questionable that the results would be different if cases were conducted
under the differing approaches; in fact no statistics exist that can show whether or not these
systems would come to the same results. However, these approaches are often a matter of
national pride and there are opinions amongst jurists about the merits of the differing approaches
and their drawbacks as well.

Proponents of the adversarial system often argue that the system is fairer and less prone to abuse
than the inquisitional approach, because it allows less room for the state to be biased against the
defendant. It also allows most private litigants to settle their disputes in an amicable manner
through discovery and pre-trial settlements in which non-contested facts are agreed upon and not
dealt with during the trial process.32

In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly
institutionalized and removed from the average citizen. The common law trial lawyer has ample
opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial
are carefully prepared through a discovery process that aids in the review of evidence and
testimony before it is presented to judge or jury. The lawyers involved have a very good idea of
the scope of agreement and disagreement of the issues to present at trial which develops much in

31
Ibid
32
Supra note 7
15
the same way as the role of investigative judges. It has also been argued that a trial by a jury of
one's peers may be more impartial than any government paid inquisitor and a panel of his peers.
In the United States the rightto a trial by a jury of one's peers who are common citizens is
guaranteed by the United States Constitution.33

Proponents of inquisitorial justice dispute these points. They point out that most cases in
adversarial systems are actually resolved by plea bargain and settlement. Plea bargain as a
system does not exist in an inquisitorial system. Most legal cases in adversarial systems do not
go to trial; this can lead to great injustice when the defendant has an unskilled or overworked
attorney, which is likely to be the case when the defendant is poor. In addition, proponents of
inquisitorial systems argue that the plea bargain system causes the participants within the system
to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is
warranted and defendants to plead guilty even when they believe that they are not. Furthermore,
proponents of inquisitorial systems also argue that the power of the judge is limited by the use of
lay assessors and that a panel of judges may not necessarily be more biased than a jury.

The adversarial system has also been attacked for failing to accurately resolve complex technical
issues such as science, technology, or tax or accounting regulation. In the adversarial system,
juries encounter such complex technical cases for the first time. This would lead to unjust
outcomes for one or both of the litigating parties due to the lack of understanding of the evidence
presented. In the inquisitorial system, the judge, though not an expert in each technical subject,
would have gone through similar tax, forensic, or accounting related issues countless times, and
is thus unlikely to be confused or manipulated. Moreover, the verdict in an inquisitional case
must include written justification by judges. For this reason, when new evidence emerges, the
defense and/or the prosecutor can make an appeal on the basis that the verdict was incorrectly
reasoned. On the other hand, in an adversarial system, neither defense nor prosecutor knows the
actual discussion w

33
Ibid
16
hich took place and the jury is sworn to secrecy. Therefore, the appeal once conviction occurs
must be made on the basis that contest between the defense and the prosecutor was not fair,
which from the perspective of an inquisitional system, is not same as the matter of truth.34

CHAPTER 3

InquisitorialSystem
3.1CONCEPT:
Advanced Law Lexicon35defines inquisitorial procedure as, A court procedure commonly
practiced in Continental Europe whereby the trial judge conducts inquiry into the facts, rather
then the parties. The judge will lead the investigations, examine the evidences and interrogate
the witness.

The inquisitorial model of justice relates basically 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. If the purpose of
justice is served minor error in the procedure is ignored. The court can play active role in
procuring evidence, in the investigation of the case and the examination of the witness. The
accused must help to the prosecutor and the court to attain the justice. Since the court itself is
active to secure justice, legal representation from the side of accused is not regarded
indispensable. This system has the following advantages.36

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 in some countries with civil legal systems as opposed to common
law systems. Also countries using common law, including the United States, may use an

34
Ibid
35
P.Ramnath Aiyar, Advanced law lexicon, Book 13th edition 2005, p.152
36
Supra note 1
17
inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic
violations. In fact, 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 "no adversarial. The function is often
vested in the office of public procurator, as in many communist or ex-communist states such as
Russia, China, and Ukraine, in addition to non-communist jurisdictions such as Japan and
Scotland.37

The inquisitorial system applies to questions of criminal procedure as opposed to questions

of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the
kind of crimes for which one can be prosecuted, nor 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.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning
witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow
the judge to act more like an inquisitor than an arbiter of justice.38

3.2History:
Until 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 that person is guilty or innocent. Under this system, unless people
were caught in the act of committing crimes, they could not be tried for them until they had been
formally accused, either by 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, 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 ordeal or combat were accepted, though it is

37
http://en.wikipedia.org/wiki/Inquisitorial_system
38
Ibid
18
now generally agreed that these procedures are not acceptable ways of finding truth or settling a
dispute.39

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 parliaments lay courts 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 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."40

In the development of modern legal institutions which occurred in the 19th century, for the most
part, most 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.41

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
39
http://en.wikipedia.org/wiki/Inquisitorial_system
40
Ibid
41
Ibid
19
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.42

3.3Inquisitorial System in CommOn Law

Countries:
Administrative proceedings in many common law jurisdictions may be similar to their civil law
counterparts and be conducted on a more inquisitorial model. A good example are the many
administrative boards such as the New York City Traffic Violations Bureau, a minor tribunal that
deals with traffic violations where the adjudicator also functions as the prosecutor and questions
the witnesses; he or she also renders judgment and sets the fine to be paid. These types of
tribunals or boards can be found in most modern democracies. They 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.43

3.4Basic Tenets of Inquisitorial System:

In the inquisitorial system, power to investigate offences rests primary 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

42
Ibid
43
Ibid
20
 manner as it is their duty to assist the investigation and the prosecution in discovering
truth. Exclusionary rules of evidence hardly exist. Hearsay rules are unknown in
this System. If the prosecutor feels that the case involves serious offences or offences
of complex nature or politically sensitive matters, he can move the judge of instructions
to take over the responsibility of supervising the investigation of such cases.44

To enable the Judge of instructions to properly investigate the case, he is empowered to

issue warrants, direct search, arrest the accused and examine witnesses. The accused has
the right to be heard and to engage a counsel in the investigation proceedings before
the judge of instructions and to make suggestions in regard to proper investigation
of the case. It is the duty of the judge of instructions to collect evidence for and against
the accused, prepare a dossier and then forward it to the trial judge. The accused is
presumed to be innocent and it is the responsibility of the judge to discover the truth.
The statements of witnesses recorded duringinvestigation by the judge of instructions
are admissible and form the basis for the prosecution case during final trial. Before
the trial 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. Evidence regarding character and antecedents of
the accused such as previous conduct or convictions are relevant for proving the guilt or
innocence of the accused.

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.

Another important feature of the Inquisitorial System is that in respect of serious and
complex offences investigation is done under the supervision of an independent
judicial officer__ the Judge of Instructions__ who for the purpose of discovering truth
collects evidence for and against the accused.

Another importance features of Inquisitorial System is that in respect of serious

and complex offences investigation is done under the supervision of an independent

44
Supra note 23,p 25
21
 judicial officer__ the Judge of Instructions__ who for the purpose of discovering
truth collectsevidence for and against the accused.45

3.5Advantagesof Inquisitorial
System:
a) The court plays substantive role in the trial to secure justice.
b) Minor error in the procedure is ignored, if the purpose of justice is solved.
Procedure is not held vital, ultimate justice is regarded as the goal.
c) All the component of criminal justice system, i.e. the police, the prosecutor, the
defense lawyer, the court and the accused must help to secure justice. So, the
accused has no right to silence.
d) Any distortion of evidence, dubious practice followed by the accused or by the
lawyers can be easily detected with the effort of the court.

3.6 Disadvantages of Inquisitorial

System:
a) Participation of the court in the inquisition of the case may lead it to biased attitude.
b) Right to privacy of the accused is denied and that the accused is exposed to
express everything which he need not express keeping in view of the merit of the
case.
c) The prosecutor or the police having separate law to deal with their conduct may
misuse their power and is likely to exceed their authority, which they are not
entitled to.
d) Supremacy of law and equal treatment of the law for all segments of thesociety is not
entertained.46

45
Ibid
46
Supra note 1
22
3.7Inquisitorial System v.
AdversarialSystem
An inquisitorial judge is like a policeman with the task of catching a thief. Because of the
compulsions to perform by catching the thief at any cost, the police may catch hold of
some innocent passes-by, on the slightest suspicion and brand him a thief, if only to get
relief from the pressure to get results and please his superiors. That is why the
confessions before the police are not admissible in evidence and not because the police
are inherently bad and judges are inherently good. That is why when a judge is appointed
to head a commission of inquiry he becomes an investigator. He can at the end only
submit a report of his enquiry and not pronounce judgment, though he may be a judge of
the Supreme Court. Basing on the report prosecution is launched before the magistrate or
a sessions judge, who should adopt the adversarial approach and ultimately pronounce
judgment. If the magistrate acts like an investigator by adopting inquisitorial approach,
the purpose of trial is defeated, as there would be two investigations, one by the Supreme
Court judge and another by the magistrate and not impartial trial.47

Judges with inquisitorial tendencies [unfortunately most judges are of this type] have a
strong tendency to reach a conclusion at an early stage and to adhere to the conclusion in
the face of conflicting considerations later evolved. In the language of the committee of
the American Bar Association, "what generally occurs in practice is that at some early
stage a familiar pattern will seem to emerge from the evidence; an accustomed label is
waiting for the case and without awaiting further proofs this label is promptly assigned to
it. It is a mistake to suppose that this premature cataloguing must necessarily result from
impatience, prejudice or mental sloth. Often it proceeds from a very understandable
desire to bring the hearing in to some order and coherence, for without some tentative
theory of the case there is no standard of relevance by which testimony maybe measured.
But what starts as a preliminary diagnosis designed to direct the inquiry will quickly and
imperceptibly, become a fixed conclusion, as all that confirms the diagnosis makes a

47
http://legal-articles.deysot.com
23
 strong imprint on the mind, while all that runs counter to it is received with diverted
attention. An adversarial presentation seems the only effective means for combating this
natural human tendency to judge too swiftly in terms of the familiar that which is not yet
fully known.48

Inquisitorial judges are in general blissfully ignorant of the fact that truth is relative to the
Observer. They behave like bureaucrats in disguise. They mistrust the caliber or honesty
of advocates and unnecessarily study the entire Records of the preceding, from the
pleadings to evidence and all the documents themselves. All this adds to the delay in
disposal of cases. A strictly adversarial judge should not read the record before hearing
the arguments. Even after the arguments are advanced, he should look into the records
only to verify the disputed facts and not the whole record, and quickly pronounce
judgment. Suppose a suit based on a promissory note is being argued. The plaintiffs
advocate argues that his witnesses have consistently spoken about the due execution of
the promissory note. The defendant's advocate does not contradict this or bring out the
inconsistencies or deficiencies of the plaintiffs witnesses. The judge need not and I
daresay, should not read the entire evidence led, by the plaintiff. He can straight a way
pronounce judgment and write in his judgment that since the defendant's counsel did not
bring out the inconsistencies in the plaintiff's evidence he has concluded that the
execution of the promissory note is proved. That is the reason why Order 20 Rule 1 of the
Code of Civil Procedure enjoins that judgment shall be pronounced at once, after the
arguments are concluded. If he commits a grave mistake there is the mechanism of
review provided under or. 47 and section 151 CPC.49

A judge with inquisitorial mind develops fatigue very quickly due to over work. This will
have adverse effect upon his appreciation of the finer points of law and fact put forth by
the contestants. He should remember that it is the duty of the advocates appearing in the
matter to go through the entire record, digest it and project their respective versions.
Advocates have to deal only with their respective briefs where as a judge has to deal with

48
[Extracted from LAW -Voice of America lectures p. 102.]

49
Civil Procedure Code, 1908.
24
 the workload of the entire court. Just as a driver of a vehicle should guard himself from
being fatigued to avoid errors of judgment resulting in serious accidents, judges also must
keep their minds reasonably fresh to avoid misjudgments and miscarriage of justice. If a
particular advocate is inefficient, the judge should not try to go to the rescue of the party
by stepping into the shoes of the deficient advocate. This will encourage or compel
litigants to engage only competent advocates.50

Inquisitorial attitude of judges, when they preside over adversarial courts, is not
compatible with democratic ideals and dignity of the individual. An inquisitorial Judge is
apt to think "it is my responsibility to know the truth I will know it by my own effort
and initiative. I will dole out justice to you the litigant - you meekly take whatever I give
, whereas an adversarial judge would be less egoistic. His approach would be "I am only
a referee in a match. The laws are already made by the legislature. You the citizens have
entered into deals as permitted by those laws. You have approached me to enforce your
rights. You are the first judges in the sense that you first decide that you have been
wronged and approach your lawyers to work out the details of your case. Your lawyers
are the boxers and I am only an umpire ". Rule of law is described as a leave to live
without anyones leave, which includes the leave of the judges too. This is the only way
to empower the citizen instead of treating him as a humble recipient of benevolence by
the authorities, whether of the executive variety or the judicial clan. . In any game,
players can improve their standard if they are free to concentrate on the game instead of
being at the mercy of the referee

An inquisitorial judge is a glorified policeman. A policeman takes the trouble of visiting

the scene of occurrence and catches the suspected criminal at considerable personal risk
to find out the truth, whereas and inquisitorial Judge attempts to play the policeman when
comfortably seated in his court.

Inquisitorial judges take the litigating parties by surprise by coming forward with their
own hypothesis, which is not put forth by either of the parties. By their propensity to take
initiative, they encroach upon the jurisdiction of the executive and thus violate the
principle of separation of powers. On the other hand, adversarial judges fairly reopen the
50
Supra note 41
25
 arguments whenever a new point of law or fact occurs in their minds, give opportunities
to both the counsel to argue on those points and then only give a decision. They never
shock the parties by surprising them. They never hit their ships with torpedoes of their
equities or notions of `dharma51`

When Bill Clinton was asked to address the Russians and suggest tips to develop their
economy, he is reported to have said that apart from natural resources and technical
manpower, a country needs a legal system that enforcers the laws consistently, so that
entrepreneurs are sure that the contracts they enter into can be enforced with certainty.
Lawyers as social engineers, play a vital role in such a system only when the courts are
consistent and predictable. According to Justice Oliver Wendell Holmes "law is a
prediction of what the courts will decide". Just as an electrical engineer designs his
circuits based on the predictable behavior of electrical power and thereby ensures that the
devices and equipment designed by him give the expected result to the society, a lawyer,
as a social engineer, designs his plaints, complaints, petitions, written statements etc
based on law which is the predictable exercise of judicial power. According to Mr.Justice
Rajendra Babu of the Supreme Court, impartial, timely and predictable judiciaries
stimulate investment, efficiency and technological progress only an adversarial system
can ensure such predictability and consistency. Otherwise, Mr. Palkhivala's lament that
our courts of law are casinos and not cathedrals" rings true.52

Even "judicial activism" is possible within the adversarial framework. All the sensational
judgments rendered by the Supreme Court during the recent phase of judicial activism
were made possible because of the innovative and ingenious stands taken by their
respective disputants within the constitutional framework. The judges merely put their
stamp of approval by mustering enough courage, while the credit for such innovation
must go to the advocates whose arguments were accept.53

51
Ibid
52
See THE HINDU DT.11-4-04 PAGE 17
53
Supra note 41
26
 Chapter 4

Provisions reflecting the inquisitorial

System in India:
4.1Inherent Powers:
The Code which speaks in Section 482 of the inherent power of the High Court says that nothing in
the Code shall be deemed to limit or affect the inherent powers of the High Court to make such
orders as may be necessary to give affect to any order under the Code or to prevent the abuse of the
process of
any Court or otherwise to secure the ends of justice. In essence it speaks of the residuary power to
do justice. As all the Criminal Courts are courts of justice there is no good reason to limit the
exercise of inherent powers to the High Court. Limited conferring of inherent powers to the
HighCourt has contributed to unnecessary litigation and delay.The inherent powers in civil
matters are conferred by Section 151 of the Civil Procedure Code on all courts and are not limited
to the High Court. Now that every criminal court is enjoined the duty to seek truth there is
no good reason why it should not be empowered to exercise inherent powers for
seeking truth or to prevent abuse of the process of any court or otherwise to secure the ends of
justice. Inherent powers can be exercised in the interest of justice, in the absence of a statutory
provision to meet the situation. The lower courts can be trusted to exercise inherent powers in
accordance with settled principles.54

The Law Commission in its 14th report (Paras 828 & 830) has also
recommended conferment of inherent power but on the session courts. There is no good reason
to deny inherent powers to other subordinate criminal courts.55

54
Supra note 23,p 25
55
Law Commission in its 14th report
27
4.2Courts Power to secure Evidence:
Section 165 of the Evidence Act, invests the Court with the power
to ask any question it pleases, in any form, at any time, of any witness, or the parties
about any fact, relevant or irrelevant, and also to order the production of any document or
thing. This power can be exercised by the Court, in order to discover or to obtain proper
proof of relevant facts. This Section does not expressly confer a power on the Court to
summon witnesses, to give evidence. It can summon a witness only to produce any
document or a thing.
Wide power has been conferred on the court by Section 311 of the Code to summon
material witnesses or examine the persons present in the Court. It reads:
Any court may, at any stage of any inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any person in attendance, though not
summoned as a witness, or recall and re-examine any person already examined; and the
court shall summon and examine or recall and re-examine any such person if his
evidence appears to it to be essential to the just decision of the case.
First part of Section 311 gives discretion to the court to summon
any person as a witness; the second part makes it obligatory to examine witness if it is
essential for the just decision of the case. It does not say that the power should be
exercised when it appears to the court that it is necessary to discover truth. The
requirement of just decision of the case occurring in the latter part of the Section is not
synonymous with the duty to discover truth.56
The provisions discussed above do not cast a positive duty on the court to exercise the
power to summon witnesses in order to seek the truth but only for proof of relevant facts
or for just decision in the case. In practice it is seen that when the witnesses are examined
the courts rarely ask any questions to the witnesses, fearing that their neutrality may be
doubted.
Witnesses examined at the instance of the court are liable to be cross-examined

56
Supra note 23, p 27
28
 by the rival parties to the proceedings. Aggrieved parties often challenge such
intervention on grounds of bias and denial of fair trial. The trend of judicial decisions
is also that this power should be exercised with utmost circumspection and not
to supplement the evidence for the prosecution or to fill up the gaps in the
prosecution case. Thus the power under Section 311 is virtually rendered nugatory.
Furthermore, the other provisions in the Code also appear to curtail this power, may be
unintentional. So far as summons trial procedure is concerned Section 255 entitles
the court to take into account in addition to the
evidence produced by the prosecution, such further evidence as the court on its own motion
causes to be produced. But there is no similar provision in respect of warrant (Section 238
to 250) and sessions (Section 225 to 232) trials. The court can consider only the evidence
produced by the prosecution and not other evidence collected by invoking courts power
under Section 311. These restrictions should be removed and a provision similar to Section
255 should be made in respect of warrant and sessions trial procedure also.
It is therefore to amend Section 311 imposing a duty on every court to suo motu cause
production of evidence for the purpose of discovering truth and requiring every court to
take into account the evidence so collected in addition to the evidence produced by the
Prosecution.57

4.3 Courts Powers to Regulate

theInvestigation:
Quite often the Judge acquits the accused after recording a finding that the prosecution
has miserably failed to prove its case against the accused attributing the failure to
defective, incompetent or dishonest investigation. The courts rarely direct further or proper
investigation by the same or other competent agency for discovering truth though they have
the power as can be seen from Section 173(8) of the code which reads:

Nothing in this section shall be deemed to preclude further investigation in respect of an

offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon
such investigation, the officer-in-charge of the police station obtains further evidence, oral or

57
Supra note 54, p 27
29
documentary, he shall forward to the Magistrate a further report or reports regarding such
evidence in the form prescribed; and the provisions of sub-sections(2) to (6) shall, as far as may
be, apply in relation to such report or reports as they apply in relation to a report
forwarded under sub-section(2). 58

This provision was invoked by the Supreme Court In Kashmiri Devi vs. Delhi Administration
and others and the relevant observations are as follows59:

After hearing learned counsel for the parties and on perusal of the record we are satisfied
that prima facie the police have not acted in a forthright manner in investigating the case,
registered on the complaint of Sudesh Kumar. The circumstances available on record prima
facie show that effort has been made to protect and shield the guilty officers of the police who are
alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing.
The appellant has been crying hoarse to get the investigation done by an independent authority but
none responded to her complaint. The Additional Sessions Judge while considering the bail
application of Jagmal Singh, Constable, considered the autopsy report and observed that
Doctor had postponed giving his opinion regarding the cause of death although the injuries were
ante mortem. The learned Sessions Judge referring to a number of circumstances observed that
the investigating officer had converted the case from S.302/IPC to S.304/IPC on flimsy
grounds within hours of the registration of the case even without waiting for the post-mortem
report. The learned Sessions Judge further observed that it was a prima facie case of deliberate
murder of an innocent illiterate poor citizen of Delhi in Police custody and investigation was
partisan.

Prima facie the police has acted in partisan manner to shield the real culprits and the investigation
of the case has not been done in a proper and objective manner. We are therefore of the opinion
that in the interest of justice it is necessary to get a (2008) 2 SCC 409known.

In Sakiri Basu V. State of U.P. & Others Speaking through Markandey Katju J., Sec.156(3)
provides for a check by the Magistrate on the Police performing its duty under Chapter XII of
Cr.P.C. in cases where the Magistrate finds the Police has not done its duty of investigating at all, or
has not done it satisfactorily, he can issue a direction to the Police to do the investigation

58
Ibid
59
AIR 1988 SC 1323
30
properly,and can monitor the same.60

4.4 Malimath Committee Suggestion

Regarding Inquisitorial System:
Malimath committee on judicial reforms heavily relied on the fact that in discovering truth, the
judges of all courts need to play and active role. The committee observed thus:

.In the adversarial system truth is supposed to emerge from the respective versions of the
facts presented by the proisecution and the defence before a neutral judge. The judge acts like
umpire to see whether the prosecution has been able to prove.the case beyond reasonable doubt.
It is the parties that determines the scope of dispute & decide largely, autonomously and in
selective manner on the evidence that they have to present to the court. The judge in his anxiety
to maintain his position of neutrality never takes any initiative to discover truth. He does not
correct the aberration in the investigation or in matter of production of evidence before the
court.

the Adversarial system lacks dynamism because it has no lofty ideal to inspire. It has not been
entrusted with a positive duty to discover truth as in inquisitorial system. When the investigation
is perfunctory or ineffective, judges seldom take any initiative to remedy the situation. During
the trial, the judges do not bother if relevant evidence is not produced and plays a passive role as
he has no duty for search the truth.

The malimath committee also observed that:

Truth is the very soul of justice. Therefore truth should become the ideal to inspire the corts to
pursue. This can be achieved by statutorily mandating the courts to become active seekers of
truth. It should become the paramount duty of everyone to assist the court in its quest for truth.

Over the years taking advantage of several lacunae in the adversarial system large number of
criminals are escaping convictions. This has seriously eroded the confidence of the people in
theefficacy of the System. Therefore it is necessaryto examine how to plug the escape routes and
to block the possible new ones.61
There are two major systems in the world. There are adversarial systems which have borrowed
from the inquisitorial system and vice versa. One school of thought is that the Inquisitorial system
followed in France, Germany, Italy and other Continental countries is more efficient and
therefore a better alternative to the adversarial system. This takes us to the examination of the

60
(2008) 2 SCC 409
61
Supra note 23, p 27
31
distinguishing features of the inquisitorial system. 62

Chapter 5

The Need for Reform:

The Adversarial System lacks dynamism because it has no lofty ideal to
inspire. It has not been entrusted with a positive duty to discover truth as in the
Inquisitorial System. When the investigation is perfunctory or ineffective,
Judges seldom take any initiative to remedy the situation. During the trial, the
Judges do not bother if relevant evidence is not produced and plays a passive
role as he has no duty to search for truth. As the prosecution has to prove the
case beyond reasonable doubt, the system appears to be skewed in favour of the
accused. It is therefore necessary to strengthen the Adversarial System by
adopting with suitable modifications some of the good and useful features of
the Inquisitorial System.63

5.1 Views of Indian High Courts:

The High Courts of Gauhati, Gujarat, Jammu & Kashmir, Karnataka, Patna,
Rajasthan and Sikkim have not expressed any views. 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
62
Ibid
63
Supra note, p 28
32
adopting some of the useful features of the Inquisitorial System.

5.2 Views of Some State Government:

Governments of Arunachal Pradesh, Karnataka, Kerala, Madhya
Pradesh, Haryana, Himachal Pradesh and Jammu & Kashmir are in favour of
continuing the Adversarial System followed in India. Other Governments have
not responded. 64

64
ibid
33
 Chapter 6

Comparative Table of Adversarial

&Inquisitorial
Features Adversary System Inquisitorial System
Independent third party Takes a more active role in the case
Decides questions of law and Determines which evidence and
Role of the Judge procedure witnesses are to be examined
Only asks questions for Questions witnesses
clarification
Not as much need for legal
Represents parties interests representation
Prepare and presents the May ask questions
Role of Legal parties case after the
Representation Examination of witnesses judge has
completed his/her
questioning.
All evidence, except witness All evidence and statements are
Collection of statements, are collected by the collected
evidence parties and kept by the examining judge

Witnesses must answer the Witnesses are

questions put to them by the allowed to give their
Witnesses legal representative version of what
happened without
interruption
Prior criminal Inadmissible Admissible
record
Strict rules apply No strict rules
Rules of Evidence Mainly relies on oral evidence Relies heavily on
written statements
Responsible for the Parties respond to the direction of
preparation and presentation the court in the presentations of their
for their case. case.
Role of parties
Determine the issue that are
disputed and which witnesses
are to be called.
34
 Chapter 7

Conclusion:
In evaluating the two systems we should not forget the basic requirement of
fairness of trial. In the inquisitorial system the Judge of instructions combines to
some extent the roles of the investigator and the Judge. Defense lacks adequate
opportunity to test the evidence of the prosecution by cross-examination. The
defense has only a limited right of suggesting questions to the Judge. It is left to the
discretion of the Judge whether to accept the suggestions or not. Thus, the accused
does not get a fair opportunity of testing the evidence tendered against him which
is one of the essential requirements of fair trial.
In the Inquisitorial System followed in France the positions of
Magistrates and Prosecutors are inter- changeable. A person appointed as a
Magistrate for one term may be appointed as a Prosecutor for the next
term. It is by common selection that Prosecutors and Magistrates are selected
and are subjected to a common training programme. It is one of the cardinal
principles of justice that justice should not only be done but should appear to be
done. The Judge who had functioned earlier as a prosecutor is likely to carry
unconsciously a bias in favour of the prosecution. At any rate it is likely to
cause an apprehension in the mind of the accused that he may not get a fair trial at
the hands of such a Judge. In the Adversarial System, fairness of trial is adequately
assured by the Judge maintaining a position of neutrality and the parties
getting full opportunity of adducing evidence and cross-examining the witnesses.
Thus it is seen that fairness of trial is better assured in the Adversarial System.

35
 Bibliography
BOOKS:

1.Iyer, V. K. (n.d.). Constitutional Miscellany. Eastern Book Company.

2. Kelkar, R. V. (2008). Criminal Procedure (5 ed.). Eastern Book Company.

3. Racenberg, J. (n.d.). The Search of Justice.

4. P.Ramanath Aiyar, Advanced Law Lexicon, Book 13th edition, 2005

INTERNET:

5. indiankanoon.com

6.http..//www.judiciary.gov.bt/html/court/trial

7. http.//en.wikipedia.org/

36
37