1st Internal – Comparative Criminal Law

A Comparative Study of Criminal Prosecution Systems in India and France

Name: Ayush Chadha

The Criminal Justice System includes all the interdependent components of the court, various
stages of a trial procedure also. The Criminal Justice System is the process by which offenders
are arrested, followed by investigation to determine proof. After which charges are framed, a
defense is raised, trials conducted and sentencing rendered if found guilty or acquitted if he is
found innocent. The trial is a judicial examination of the issues between the parties, whether they
are of law or facts, presented in court before a jury or judge. In order to determine guilt in the
criminal proceedings, pieces of evidence are examined by the judge. Judge takes into
consideration the law of the land, the facts presented before him, or the law put in the case for
the purpose of determining the outcome.

The term prosecution as per Black’s Dictionary connotes “a proceeding instituted and carried on
by due course of law before competent tribunal for the purpose of determining the guilt or
innocence of an accused of a person charged with a crime”. Investigative function implies
procedure to determine the suspect of crime and to collect relevant evidences for producing in
the law courts. Forensic investigation function implies production of evidences before the law
courts. These two different functions of the Prosecutors are different from Nation to Nation.
Either both these powers are in the hands of the Prosecutors. Or these powers are categorically
divided amongst other ancillary institutions. These functions depend upon the specific system
and cultural heritage. The presiding officer of the court decides on the basis of material placed
and the Statements made, whether a particular person is guilty or innocent.

The Rule of Law and Prosecutorial functions are interconnected. The Rule of Law expects
efficient Prosecutorial functions which deal with investigation and prosecution process in an
impartial and independent manner. At the National and International level, the role of a
Prosecutor is a subject of debate. The United Nations Organization, The Council of Europe, The
United Nations Congress on Prevention of Crime, etc. have contributed in suggesting reforms in
the position of Prosecutors1.

1
K. I. Jiashankar, Role and Functions of Prosecutors: A Comparative Perspectives, Cochin University Law Review,
June 2010 P. No. 108
Types of Criminal Justice Systems

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

1. Adversary system - According to Black’s Law Dictionary2, “Adversary system is the court
system where a judge decides on a case argued by a prosecutor who is suing the plaintiff and the
defense attorney who defends their plaintiff. A jury has also been used to decide such cases.’’

2. Inquisitorial system - According to Black’s Law Dictionary3, the inquisitorial system is,
“proof taking used in civil law, whereby the judge conducts the trial, determines what questions
to ask, and defines the scope and extent of the inquiry’’.

A general analysis of the two Criminal Justice Systems shows some of the significant differences
in their functioning. Precedents and case laws are dealt with differently within these 2 distinct
systems of procedure, in the adversarial system, the earlier decisions by the higher courts are
considered to have a binding effect, but in the inquisitorial system, the precedents are not given
that much importance. The judges or jury give judgment independently using the relevant
statutes, so much importance is given to the code of law.

In the adversarial system, the parties e.g. police and defense have a responsibility of bringing
evidence, whereas in the inquisitorial system the government officials collect the pieces of
evidence, they themselves can conduct the investigation or they may request the police to do so.
The officials can instruct the police about the priorities. In some inquisitorial systems, a judge
may conduct the investigation. Oppositely in adversarial system judges do not play any role in
the investigation. With regards to investigation there is nothing like an independent examination

2
Black's Law Dictionary 435 (9th ed. 2009)
3
Black's Law Dictionary 486 (9th ed. 2009)
in adversarial system chief and cross-examination is the part of trial only. In inquisitorial systems
interrogation of witnesses and collection of evidence is done by examining judge.

In the adversarial system there is a strong categorization of admissible and inadmissible evidence
and hearsay evidence is more readily allowed if it is reliable. Rules relating to admissibility are
more lenient in the inquisitorial system. If the judge decides particular evidence as relevant, that
is admitted. In many inquisitorial systems, there is no hearsay rule at all.

Role of Prosecutors in India

The decision to prosecute or not to prosecute is one of the most important steps in the
administration of criminal justice. At the time of deciding the same, enough care is taken by the
decision making authorities. The balance of interest of the society at large, the victim and the
accused needs to be taken in this process. Any wrong decisions to prosecute can adversely affect
the faith the common public puts in the justice system. In some Nations, the Prosecutors are not
the controller of investigation process. Many times the Prosecutors face dilemma. The
Prosecutors receive many cases from the police, where the guilt is still doubtful or there is
shortage of evidences on record to prove the guilt.

When prosecution system balances interest of the victim and interest of the society it becomes
efficient. The Prosecutors should not function with only the goal of getting a conviction in court
but should effectively be performing it’s duties to ensure justice prevails. In State v. V. C.
Shukla4, it was held that it is the duty on the part of the Prosecutors to prove guilt of accused
beyond reasonable doubt.

If the Prosecutors fail to prove guilt, then accused gets benefit of doubt. As to the duties of
Prosecutors, in Prabhu Dayal Gupta v State5, it was held that the Prosecutor is bound to be fair in
the presentation of a prosecution case before the courts. He must not hold back or keep away any
evidence from the court. The evidence may be relevant for determining the guilt or innocence of
the accused. The prosecutor must be fair to both the accused and the victim. Also, the

4
1980Cr.L.J.965
5
CR.L.J.1986, Criminal Appeal No. 171 of 1984
prosecution should be away from the inefficient victims, and negligent and biased Investigation
agencies.

In State of Bihar V. Ram Naresh Pandey6 it was held that Public Prosecutor is officer of the
court. He is under a duty to assist Judge in justice delivery. The basis of current criminal justice
system is crime committed against individual is not only against an individual but also against
the society. The criminals are prosecuted and punished by the State.

In Jaipal Song Naresh V State of Uttar Pradesh7, it was pointed out by the Allahabad High Court
that the intention of parliament to keep separate prosecution from the police is to investigate the
offence and identify the guilt of accused. The Prosecutor is not under duty to represent police but
has a duty to represent Crown. He should perform his duty without favor or fear. Hence, it was
held that the prosecution should not be a part of investigation directly or indirectly.

Role of Prosecutors in France

The Code of Criminal Procedure in France has no clear decretory powers to the Prosecutors to
initiate proceedings. Prosecutors are an unavoidable organ in the French Criminal Justice system
which is basically inquisitorial or continental criminal justice model. The Code of Criminal
Procedure, 1958 is known as Code d’ Instruction Criminelle in the French language.

As per Article 31 of the Code of Criminal Procedure of France 1958, the Public Prosecutors
exercise a Public duty and request the law to be enforced. The Public Prosecutors are in all the
matters and in all the cases authorized to interpret and uphold the law and individual liberties of
citizens. Hence, in criminal cases, the French law grants Prosecutors not only the right to initiate
criminal proceedings but also to exclusively carry out the Prosecution in law courts 8.

However, as per Article 40, as soon as the Prosecutor receives complaints of the commission of
offence, the Prosecutor decides whether to put the case before the court or to dismiss the same.
In case the Prosecutor does not want to prepare charges, he can set aside the case file and can

6
A.I.R 1957,S.C.389
7
96 1976, Cr. L. J. 32 72
8
Rijksuniversiteit Groningen , Unity and Diversity of Prosecution Services in Europe, A Study of Czech, Czech, Dutch
,French and Polish System
resume that file at any time. The Code is silent on the mode of use of the discretionary powers.
The French Prosecutors initiate for prompt dismissal of weak cases. They can also initiate
restitution of the victim and availability of non criminal sanctions. French Prosecutors are
authorized to conditionally dismiss certain charges.

The Public Prosecutors and the Judges are the members of the same professional department and
they are supervised by the High Council of Judiciary. Hence, in the Constitution of France, the
Judges and the Prosecutors are duty bound to discharge their effective functions for the High
Council of Judiciary and The High Council of Judiciary assists the President for independence of
Judiciary9.

Unlike the Indian Criminal Justice System where there is a deliberate gap between the prosecutor
and the investigating officer, the prosecutors in the French criminal justice system have the
power to instruct the investigating officers to look in to the matters forthwith or inform the
investigating magistrates about the case if the matter is complicated and vague. In France, the
Investigation is a combined target of the Prosecutors and the investigating magistrates. The
Prosecutors and the investigating Magistrates can instruct police officers about the investigation.
The Prosecutors play main role in the investigation process in a pre-trial phase. In practice it is
the Prosecutor who gets the investigation done by the police instead of doing actual investigation
on the field. However, they are fully empowered to interrogate witnesses and upon suspicious
circumstances, the Prosecutor conducts searches and seizures of the case. Hence the Prosecutors
yield control over the police during pretrial proceedings.

9
The Role of Prosecutor in French Trial by Robert Vouin, The American Journal of Comparative Law, Vol. 18, No. 3 ,
Summer 1970. Pp 483-497, Published by American Society of Comparative Law
Conclusion

The Judiciary in India has periodically tried to shape the Prosecutors. Since Indian Criminal
Justice is not much older there is a need of more authenticity and comprehensiveness in the laws
governing Prosecutors in India. India follows an Adversarial Model of justice. Fair trial is the
goal and the Prosecutors need to prove the case beyond reasonable doubts. Failure of the
Prosecutors to prove the cases beyond reasonable doubt, leads to the benefit of doubt to the
accused. It leads to acquittals. The role of Prosecutors in India is very significant since more
acquittals can encourage criminal activities in future and may lead to rise in crime rate.

In French Criminal Justice System, Prosecutors play a dominant role in the investigation of
crimes as well as presenting the case before courts. The Prosecutors posts are constitutional posts
and they are responsible for discharging their functions along with the Judges under Ministry of
Justice. Their status and functions is as good as the Judges. The Prosecutors collect the most
relevant and admissible evidence through periodical guidance to the police. They are authorized
to decide the extent of custody. They are also empowered to withdraw the prosecution if there is
no point in continuing the case. Due to synchronization between police and prosecution at
pretrial phase, the Prosecutors can prove the guilt of an accused in the law courts effectively.

The overview of Prosecutorial discretion shows that the statutory rules and principles have great
impact on the faring of the Prosecution’s case. The wide ambit of powers granted to the
prosecutors in France allow them to control various aspects of the trial, which are completely
inaccessible to the Prosecution in India, allowing them to ensure the standards of justice are
maintained without any unnecessary obstacles which may hinder the process of a trial.