The Criminal Justice System is the process by which offenders are arrested,
followed by Stages of investigation to determine proof. After which charges are
framed, a defense is raised, trials conducted and sentencing rendered if found
guilty or acquitted if he is found innocent.
Criminal offenses are usually investigated by researching the facts and or
incidents, situations, scenarios, to prove the guilt of the individual. A
thorough investigation is carried out systematically, keeping time to time
details, analyzing and scrutinizing information to arrive at a conclusion to
prosecute the individual committing the criminal offense. The charges framed
against the individual are determined by the collected pieces of evidence, and
defense is made to oppose or object the prosecution of the criminal offense.
The trial is a judicial examination of the issues between the parties, whether
they are of law or facts, presented in court before a jury or judge. In order to
determine guilt in the criminal proceedings, pieces of evidence are examined by
the judge. Judge takes into consideration the law of the land, the facts
presented before him, or the law put in the case for the purpose of determining
Types of Criminal justice system:
Across the world, there are many different types of the criminal justice system
to keep and maintain order and peace within their area of jurisdiction creating
a social code of conduct, the law. Punishments differ from being a punitive one
or a rehabilitative nature.
There are two main justice systems:
According to Black's Law Dictionary,
- Adversary system or Accusatory system
- Inquisitorial system
Adversary system is the court system where a judge decides on a case argued by a
prosecutor who is suing the plaintiff and the defense attorney who defends their
plaintiff. A jury has also been used to decide such cases.
According to Black's Law Dictionary, the inquisitorial system is:
proof taking used in civil law, whereby the judge conducts the trial, determines
what questions to ask, and defines the scope and extent of the inquiry.
- Adversary system:
In the ADVERSARY SYSTEM, two or more opposing parties
gather evidence and present the evidence, and their arguments, to a judge or
jury. The judge or jury knows nothing of the litigation until the parties
present their cases to the decision maker. The defendant in a criminal trial
is not required to testify. The adversarial system seeks the truth by
pitting the parties against each other in the hope that competition will
- Inquisitorial system:
In the inquisitorial system, the presiding judge
is not a passive recipient of information. Rather, the presiding judge is
primarily responsible for supervising the gathering of the evidence
necessary to resolve the case. He or she actively steers the search for
evidence and questions the witnesses, including the respondent or defendant.
Attorneys play a more passive role, suggesting routes of inquiry for the
presiding judge and following the judge's questioning with questioning of
their own. Attorney questioning is often brief because the judge tries to
ask all relevant questions. The inquisitorial system places the rights of
the accused secondary to the search for truth.
Process of Criminal Trial in England:
The inquisitorial system was first developed by the Catholic Church during the
medieval period. The ecclesiastical courts in thirteenth-century England adopted
the method of adjudication by requiring witnesses and defendants to take an
inquisitorial oath administered by the judge, who then questioned the witnesses.
In an inquisitorial oath, the witness swore to truthfully answer all questions
asked of him or her.
The system flourished in England into the sixteenth
century, when it became infamous for its use in the Court of the STAR CHAMBER, a
court reserved for complex, contested cases. Under the reign of King Henry VIII,
the power of the Star Chamber was expanded, and the court used torture to compel
the taking of the inquisitorial oath. The Star Chamber was eventually eliminated
as repugnant to basic liberty, and England gradually moved toward an adversarial
After the French Revolution, a more refined version of the inquisitorial system
developed in France and Germany. From there it spread to the rest of continental
Europe and to many African, South American, and Asian countries. The
inquisitorial system is now more widely used than the adversarial system.
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.
Process of Criminal Trial in India:
India has a well-established statutory, administrative and judicial framework
for criminal trials.
Indian Penal laws are primarily governed by 3 Acts:
- The Code of Criminal Procedure, 1973 (Cr.P.C.);
- The Indian Penal Code, 1960 (IPC);
- The Indian Evidence Act, 1872 (IEA).
The common features of the trials in all three of the aforementioned procedures
may be broken into the following stages:
- Framing of charge or giving of notice:
It's the beginning stage of the trial, when a case comes in the court, court
discloses grave suspicion against the accused that has not been properly
explained, and the court frames the charge and proceeds with the trial.
- Recording of prosecution evidence:
when the framing of the charges is done, statements of witnesses are taken
then they are examined. This is called examination-in-chief and
- Statement of accused:
the accused is given a reasonable opportunity to explain incriminating facts
and circumstances in the case.
- Defense evidence:
If the accused want he can produce and these will be cross examined by the
prosecution. There is no need of it because the burden of proof lies on the
- Final arguments:
This is the final stage of the trial. The prosecutor shall sum up the
prosecution case and the accused is entitled to reply.
After the conclusion of arguments by the prosecutor and
defense, the judge gives his judgment in the trial.
Process of Criminal Trial in France:
Main principles of criminal law in France are as follows:
- According to French law, the presumption of innocence is there, a person
accused of a crime is innocent until found guilty by a judge. As a result,
an accused can be deprived of liberty during legal proceedings only if
certain conditions are met. Generally, all suspects are released; detention
is done only in exceptional cases.
- In the trial, the guilt must be proved beyond reasonable doubt by the
Prosecuting Attorney. At this stage, any testimony you are asked to provide
may be crucial.
- Court proceedings usually take place in public. In certain cases
involving sexual offences, the judge may decide to proceed in absence of the
- The accused is not bound to testify in his or her own defense, or to
The various steps in criminal trial in France are as follows:
Arraignment: At the arraignment, the charges are read out to the defendant,
who pleads guilty or not guilty before the judge. If the accused pleads guilty,
the judge will either hand down a sentence in accordance with the rules
governing sentencing. If the accused pleads not guilty then the judges decide
the date for next stage e.g. The release hearing (also called bail hearing) or
disclosure or preliminary inquiry or trial.
Release (bail) hearing: The person who is in custody at the time of
arraignment must be released on some conditions until objected by the
prosecution attorney. And the object should be satisfied. If the accused fails
to comply with the conditions, new charges may be imposed.
Before Trial: Before trial, a preliminary investigation conducted by a
pre-trial judge is a routine part of the judicial process. It transfers the case
to the highly competent court on the basis of a reasonable estimation of what
the accused criminals may be convicted of in the future. The criminal procedure
in France requires early intervention by examining magistrate. Once the
investigation has begun, the magistrate is free to investigate any violations
related to the application and may proceed to further inquiry any person who may
be involved. If the pre-trial judge determines that the case should be
prosecuted, the judge will make an order for transfer.
Preliminary inquiry and trial: If the sufficient evidence to take the case to
the court is found then only the trial starts. First, determining whether there
is enough evidence to issue a trial and second, proving that the guilt beyond a
reasonable doubt, in both cases, the Prosecuting Attorney and the counsel for
the defense call and question witnesses, including the victim or victims, and
present evidence with arguments in support of their respective cases. If the
evidence is found to be insufficient at the preliminary inquiry, the charges
against the accused will be dropped, whereas if the evidence is found to be
insufficient at the trial, the accused will be acquitted. And the judge met is
Sentencing: If the accused is found guilty judges may award sentence or ask
for the pre-sentencing report. This report should be prepared by the parole
officer in which the conduct of the accused in the society will be dealt and the
victim may be concerned to know the nature and seriousness of the offence.
Criticism of Adversarial system:
- In this system, the lawyer has the duty to act zealously and faithfully
for his client. Zealous, faithful advocacy means the obligation to search
out all favourable evidence, to seek, neutralize or destroy all unfavourable evidence,
and to press the most favourable interpretation of the law for his client.
- Sometimes protection of individual rights and a presumption of innocence
and benefit of doubt leads to the release of a criminal.
- Evidences are presented by parties, sometimes parties intentionally take
a too long time to present them.
- The decision maker will hear only the evidences which the parties want
to present because evidence gathering and presentation is fully controlled
- Parties may bring fake witnesses to distort the truth.
- Rules require advocacy and client loyalty which undermines the search
- The police sometime may not be able to find sufficient evidence against
the accused. He cannot expect any help from the accused. This leads to
dropping-out of the case.
Criticism of inquisitorial system:
- Examining magistrate and judge both are having unchecked power to
investigate and adjudicate the case.
- When court participates in the interrogation it may lead to a biased
- Privacy of the accused is denied.
- Prosecutor and police exceed or misuse their power because both are
having separate law to deal with their conduct.
- Parties are not able to call own expert.
If the matter is only to decide a case in favor of either of the parties, it is
not a big deal at all but there is a proper procedure established step by step
to reach the common objective which is a punishment to the offender and relief
to the victim and ensure a fair trial. Both the systems have their own
procedure, advantages and disadvantages also. Adversarial and inquisitorial both
are criticized, the reliability of the judgments is challenged but still, it is
In adversarial system accused and state are the parties in a criminal case
whereas in the inquisitorial victim is also a party, I think this feature of the
adversarial system is good. Basic principles of adversary system like the
presumption of innocence and proof of guilt beyond reasonable doubt is good,
because when a person is accused of committing any offence, he is mere an
accused not an offender or criminal, he should have rights which are denied in
an inquisitorial system. Having own critics and features, both the systems have
the same objective.
Mahender Chawla vs Union Of India Ministry Of Home Affairs
In this case the SC criticized the prevalent criminal justice system in India
and put emphasis on the importance of importance of witnesses in the adversarial
system. The SC held that in an adversarial system, which is prevalent by India,
the court is supposed to decide the cases on the basis of evidence produced
before it. This evidence can be in the form of documents. It can be oral
evidence as well, i.e., the deposition of witnesses.
The witnesses, thus, play a
vital role in facilitating the court to arrive at correct findings on disputed
questions of facts and to find out where the truth lies. They are, therefore,
backbone in decision making process. Whenever, in a dispute, the two sides come
out with conflicting version, the witnesses become important tool to arrive at
right conclusions, thereby advancing justice in a matter.