A comparative study of the Power of police to

investigate under inquisitorial and adversarial system of

law

SUBJECT: COMPARATIVE CRIMINAL PROCEDURE

SUBMITTED TO: SUBMITTED BY:

Dr. ASAD MALIK TABISH QAMAR

FACULTY OF LAW ROLL NO. 20MLW127

JAMIA MILLIA ISLAMIA LLM SEM 1(SF)

JAMIA MILLIA ISLAMIA

ACKNOWLEDGEMENT

1|Page
I would like to express my special thanks of gratitude to my teacher Dr. Asad

Malik who gave me the golden opportunity to prepare this wonderful

Assignment on the topic: A comparative study of the Power of police to

investigate under inquisitorial and adversarial system of law, which also

helped me in doing a lot of research and I came to know about so many new

things.

Secondly, I would also like to thank my friends and family who have always

been the source of my inspiration and motivation without which I would have

never been able to prepare this Assignment.

Tabish Qamar

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 INDEX

S.No. Topic Page no.

CHAPTER I
i. Cases Referred 4
ii. Synopsis 5
iii. Statement of Problem 5
iv. Literature Review 5
v. Scope of Study and Limitations 5
vi. Outcome to be brought 6
vii. Hypothesis 6
viii. Research Methodology 6
ix. Footnoting Style 6
CHAPTER II
1 Introduction 7
1.1 Adversarial System 7
1.2 Inquisitorial System 8
2 Origin of Police in India 8
3 Investigation in general 9
CHAPTER III
4. Investigation in Adversarial System 10
5. Arbitrary Police Power in Adversarial System 13
6. Safeguards against Police Power in Adversarial System 15
7. Need for Reforms 18
8. Adversarial System in England 19
CHAPTER IV
9. Investigation in Inquisitorial System 20
10. Inquisitorial System in France 20
CHAPTER V
11. Conclusion & Suggestions 22
12. Bibliography 22

CHAPTER I
i. CASES REFERRED

Rudal Sah v. State of Bihar

Bhim Singh v. State of J&K
P.U.D.R. v. State of Bihar
Nilabati Behera v. State of Orissa
D.K.Basu v. State of West Bengal
Prakash kadam v. Ramprasad Vishwanath Gupta

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 Mehboob batcha v. State
Bhim Singh v. Union of India
Purna Chandra Mohapatra v. State of Odisha
Hussainara Khatoon (No.4) v. Secretary, State of Bihar
Maneka Gandhi v. Union of India
Sheela Barse v. State of Maharashtra
State of Gujarat v. Kishanbhai
Kuldeep Singh v. State
Estes v. Texos
Sasi Thomas v. State
Vishnu Kumar Tiwari v. State of Uttar Pradesh
Khatri v. State of Bihar
Miranda v. Arizona
Nandini Satpathy v. P.L. Dani
Siddharam Satlingappa Mhetre v. State of Maharashtra
Brown v. Mississippi
Joginder Kumar v. State of U.P.
Arnesh Kumar v. State of Bihar
Prakash singh v. Union of India
Yashwant v. State of Maharashtra
In re: to issue certain guidelines regarding inadequacies and deficiencies in criminal trial

ii. SYNOPSIS

The role of agencies in the criminal justice system may differ depending on the kind of legal
system adopted in a particular country. Police is the first and foremost component of the
criminal legal system and it is said that generally it is through the information to the police
that the criminal law is set into motion. The role, duty, power of police varies in different
legal systems. Two types of legal systems dominate the nature of investigation and
adjudication around the world: adversarial and inquisitorial legal systems. This research
paper focuses on a comparative study of power of police to investigate in both the systems. It
also critically analyses the abuse and arbitrary exercise of power by the police and safeguards

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available against it. The role of Magistrate during investigation is also looked into and the
author highlights the need to have a balance between independence of police and supervision
of the Magistrate which is possible only in a mix of both types of legal systems.

iii. STATEMENT OF PROBLEM

Whether the difference in the power of police to investigate under adversarial and
inquisitorial system of law has any major impact on society and individuals? If yes, then
which system is better?

iv. LITERATURE REVIEW

The available sources indicate that though there has been research in the field of comparing
the role of police in adversarial and inquisitorial system of law, it has been largely focused on
the differences between the two systems. The research on changing police role in the light of
various progressive judgments of the court is required. The role of police has been researched
a lot but there is hardly any research to harmonise the two systems with respect to role of
police. Most of the articles referred choose either of the two systems in totality.

v. SCOPE OF STUDY & LIMITATIONS

This research paper is based purely on doctrinal research and thus the scope is limited to
published and unpublished articles, books and websites. Any survey etc is out of the scope of
this study.

vi. OUTCOME TO BE BROUGHT

This research paper tries to bring clarity regarding:

i. The power of police to investigate in adversarial and inquisitorial system of law and
which system is better.

ii. The extent to which Magistrate can interfere with the police investigation and whether he
can control the investigation

iii. The checks imposed upon the police power to prevent police atrocities.

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iv. The need for reforming the police system in India.

vii. HYPOTHESIS

The unbridled power of police to investigate leads to violation of fundamental human rights
of the accused. In adversarial system, the police having absolute power acts in arbitrary
manner which leads to gross violation of basic human rights while in Inquisitorial system the
police is more accountable. Thus, inquisitorial system is a better option.

viii. RESEARCH METHODOOLGY

This research paper is based on ‘Doctrinal Legal Research’.

It can be defined as research into legal doctrines through analysis of statutory provisions and
cases by the application of reasoning. The emphasis is upon analysis of legal rules, principles
or doctrines.

ix. FOOTNOTING STYLE

ILI rules of footnoting have been uniformly followed throughout this research paper.

CHAPTER II
1. INTRODUCTION

The criminal justice system addresses the consequences of criminal behaviour in society and
has the objective of protecting peoples' right to safety and the enjoyment of human rights.
The role of agencies in the criminal justice system may differ depending on the kind of legal
system adopted in a particular country. The criminal justice system consists of 5 main
components:

i. Police

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 ii. Judge/Magistrate

iii. Prosecution

iv. Defence counsel

v. Prison authorities

Police is the first and foremost component of the criminal legal system and it is said that
generally it is through the information to the police that the criminal law is set into
motion. The role, duty, power of police varies in different legal systems. Two types of
legal systems dominate the nature of investigation and adjudication around the world:
adversarial and inquisitorial legal systems.

1.1 Adversarial system

Generally, common law countries use an adversarial system to determine facts in the trial
process. The prosecution and defence compete against each other, and the judge serves as a
referee to ensure fairness to the accused, and that the legal rules criminal procedure followed.

Adversarial system is a feature of fair trial. According to Black’s law dictionary, “Adversarial
system is a legal structure where a judge rules on a lawsuit initiated by a lawyer who sues the
complainant and the defence counsel who protects the complainant. The jury is often required
to assess these proceedings.”1 The Judge has to play an impartial role and he should act as a
referee. This is also in line with Article 10 of UDHR. 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. This shows that the role
of Judge in adversarial system of law has to be passive.

1.2 Inquisitorial System

The inquisitorial system is associated with civil law legal systems, and it has existed for many
centuries. It is characterized by extensive pre-trial investigation and interrogations with the
objective to avoid bringing an innocent person to trial. 2 The inquisitorial process can be
described as an official inquiry to ascertain the truth, whereas the adversarial system uses a
competitive process between prosecution and defence to determine the facts. In criminal

1
Blacks Law Dictionary.
2
Brand, Paul and Joshua Getzler, eds. (2015). Judges and Judging in the History of the Common Law and Civil
Law: From Antiquity to Modern Times. Cambridge University Press.

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procedure based on inquisitorial system the initial investigation is carried out by the judicial
police, i.e., the police is under the control of Magistrate.

Both these systems have variations around the world, as different countries have modified
their criminal procedure in various ways over the years in balancing the interests of the State
in apprehending and adjudicating offenders with the interests of individual citizens who may
be caught up in the legal process.

2. ORIGIN OF POLICE IN INDIA

It was in the backdrop of revolt of 1857 that the Police Act 1861 was passed. After the revolt
of 1857, the British realized the threat of losing power and were determined to ensure
complete suzerainty and suppression of all challenges to their power. Thus, a Police
Commission was appointed in 1860, to make police an efficient instrument for the prevention
and detection of crime. However, the system so designed was sharply opposite to that of the
Britishers, celebrated in the whole world as a symbol of democratic policing. The primary
objective was to meet the exigencies of trade and company profit and to ensure that the trade
route was safe, exploitation of resources continued unhindered. The system of policing
instituted by the Act is still in force and brought uniformity in administration. However, the
general conditions of crime control remained unsatisfactory probably due to poverty, famine,
and other adverse conditions like shortage of force. The second All India Police Commission
was formed in 1902 to conduct a comprehensive inquiry and recommend improvement in
various aspects of the organization. But nothing concrete was done according to the
recommendations to improve the forces till independence. After independence, India adopted
the 1861 system unaltered in any basic respect.3

Influence of past police system on the present

The Indian Police system and structure as presently organized are essentially based on an Act
131 years old, the Police Act of 1861. The working of the police has been analysed twice at
an All India level within a period of 90 years. First was the Indian Commission of 1902-03
during the British regime and second was in 1977 by the National Police Commission. They
found police far from efficient, defective in training and organization, lacking in public
relations, welfare measures, machinery for redressal of grievances, etc. and that it was
3
https://www.humanrightsinitiative.org/blog/the-police-we-have-and-where-it-came-from-an-analysis (Visited
on 17th March 2021).

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generally regarded as corrupt and oppressive.4 Even after independence, we were devoid of a
better police administration system. There is still a requirement for a reorientation of attitude
and approach on the part of the police.

3. INVESTIGATION IN GENERAL

Every criminal case begins with investigation. An investigation, shorn of legal niceties, is a
systematic enquiry into facts constituting an alleged offence, in order to unearth its true
perpetrators. It is an attempt to recreate the unknown from the known, by collection and
presentation of pieces of evidence, with a view to aid the court in arriving at a just
conclusion. Every investigation is followed by at-least some form of judicial scrutiny (often
termed ‘inquiry’) which acts as the safety valve, wherein cases which are groundless on the
face of it are sifted and filtered out at the very threshold, and only those cases where there are
sufficient grounds to presume the commission of the offence - graduate to the next stage i.e.,
Trial. A trial, as the term connotes, is a test. Test of truth and falsehood which is examined in
proceedings where the evidences collected during investigation and conclusions reached by
the investigators are allowed to be proved or disproved and a finding as the guilt or innocence
of the accused is arrived at.

CHAPTER III
4. INVESTIGATION IN ADVERSARIAL SYSTEM

In an Adversarial model (as opposed to an Inquisitorial system), the job of investigation is in

the domain of the executive, acting through the police. Inquiry and Trial are entrusted to the
judges. This broad separation of powers5 is with a view to ensure that a judge does not get
directly involved in the process of collection of evidence, which might prejudice or taint his
conclusions. This is in view of a very real fear that he might make an opinion on the case
prematurely and facilitate the collection of only those pieces of evidence which reinforce his
initial opinion and neglect the rest. Being the investigator himself, he would have difficulties

4
https://www.prsindia.org/policy/discussion-papers/police-reforms-india (Visited on 17th March 2021).

5
Section 2(h) of CrPC reads: “investigation” includes all the proceedings under this Code for the 3 collection of
evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf.

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disassociating himself from the result of his investigation, or rather its eventual success. The
principle of investigation by the police also pays due homage to the traditional principle of
separation of powers, wherein each organ acts in its respective area of functioning and
assumption of powers of one organ by the other is frowned upon as undue interference &
adventurism. The job of a judge, therefore, in a traditional adversarial model is supposed to
be minimalist and he is not supposed to don the mantle of an investigator. Formalistic
adherence to Adversarial legalism and minimalism is not just the norm, but also the bane of
our system, as this paper would attempt to demonstrate.

Passive role of Judge

The adversarial system envisages the judge as an impartial arbiter: who decides which way
does the truth lie, after a clash of adversaries, who are assumed to be equal in strength and out
of the dialectical contest between whom - the truth is supposed to emerge. These parties fight
on the question of the probative worth of the evidence and the inference that ought to be
drawn from the material collected by the investigating agencies and the office of the judge is
to preside over this contest and to ensure parties play by the rules. The parties are expected to
play by the rules fairly and reasonably and begin from equal starting points. However, the
reality is less simple, and mostly never this straight. If men were such angels, external
controls would be unnecessary. It is now widely accepted that only seldom is the playing
field - level. The executive is often prone to abuse of power for ulterior ends, and owing to
lack of police reforms - the quality of investigation is mostly appalling, either due to
incompetence (innocent) or plain extraneous considerations (blameworthy). Many of these
investigating lapses often result in the real perpetrator escaping the clutches of law or the
innocent being falsely implicated. or in some cases - both. Flaws in the investigation often
deal the court with a practical fait accompli as the court becomes seized of the matter only
after vital evidence is obliterated, lost or fabricated. The large number of acquittals relative to
total prosecutions is a cause of huge concern and demonstrates major systemic failures. Non-
examination of vital witnesses, non-application of forensic methods, inept handling of
forensic evidence at the crime scene, non-protection of witnesses has been the ruination of
many prosecutions. Pained by such lapses leading to the eventual acquittal of a man accused
of raping and murdering six-year-old, the Supreme Court directed that a post-acquittal
analysis be made in every case of acquittal, as to the reasons for the acquittal and mandatory
departmental proceedings be initiated against investigating officers and prosecutors found

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guilty of misconduct in relation to investigation and trial. 6 The need for an effective &
impartial investigation, therefore, can hardly be overemphasised : to check not only
unmerited acquittals, but also unjust prosecutions.

No interference by the Court: Fair Investigation

It is the statutory power of the police to investigate a cognizable case and Court has no power
to interfere with such investigation. Court’s function begins with the filing of the charge-
sheet. As observed by the Law Commission,7 a Magistrate is kept in the picture at all the
stages of the police investigation, but he is not authorized to interfere with the actual
investigation or to direct the police how that investigation is to be conducted. 8 In the case of
King-Emperor v. Khwaja Nazir Ahmad 9 the Privy Council observed, “The functions of the
judiciary and the police are complementary, not overlapping, and the combination of
individual liberty with due observance of law and order is only to be obtained by leaving each
to exercise its own function.” Fair trial includes fair investigation and most fundamental of all
freedoms is fair trial.10 In Nirmal Singh Kahlon v. State of Punjab11 it was held that the
concept of fair trial and fair investigation are the concomitant to preservation of fundamental
rights of the accused under Article 21 of the Constitution of India. The concept of judicious
and fair investigation as the right to fair defence emerges from this concept itself. Proper and
fair investigation on part of the investigating officer is the backbone of rule of law.12

In the case of Babubhai v. State of Gujarat13 the Supreme Court observed: Not only fair trial
but fair investigation is also part of constitutional rights guaranteed under Art. 20 and 21 of
the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it
is the minimum requirement of law. The investigating agency cannot be permitted to conduct
an investigation in a tainted and biased manner. Where non-interference of the Court would
ultimately result in failure of justice, the Court must interfere. In such a situation, it may be in
the interest of justice that an independent agency chosen by the High Court makes a fresh
investigation.

Magisterial vigil during investigation

6
State of Gujarat v. Kishanbhai (2014) 5 SCC 108
7
41st Law Commission Report.
8
Kuldeep Singh v. State 1994 CriLJ 250.
9
AIR 1945 PC 18
10
Estes v. Texos (US) 1965.
11
Civil Appeal Nos. 6198-6199 of 2008, decided on 22nd October 2008.
12
Sasi Thomas v. State (2006) 12 SCC 421.
13
(2011) 1 SCC 336

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In chronological order, the role of magistrate in investigation can be understood in terms of
these five stages:

Stage – I – Soon after the registration of FIR

Stage – II – In cases where the arrest is effected by the Investigating officer, on his
production before the court and while deciding the question of the validity of arrest and need
for further custody - Judicial or Police.

Stage – III- Magisterial interventions while deciding applications for recording of

statement(s) u/s 164 of the Cr.P.C, test identification parades, applications seeking conduct of
narco-analysis, taking of handwriting/signature specimen, etc.

Stage – IV – Monitoring of investigation.

Stage – V – Further investigation, post-filing of police report u/s 173 of the Cr.P.C

In Sakiri Vasu v. State of Uttar Pradesh14 it has been held that the power to direct
investigation u/s 156(3) of the CrPC is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation. Therefore, in appropriate
cases, the victim, complainant or a witness can approach the court seeking necessary
directions to the police and supervision of investigation.

This reflects a definitive shift in the perception of a magistrate and recognition of his social
function. The fact that he ought not to remain a mute spectator to the distortions and
inadequacies of investigations, but make meaningful interventions. At the same time, the
magistrate ought to desist from investigating himself, as in the system we have adopted in
India, the same magistrate often conducts the trial. However, the magistrate is empowered to
monitor the investigation, with a view to ensure that it is free and fair. The exact import of
word 'monitoring of investigation’ is too circumstantial to be put in a straitjacket

Magisterial vigil does not terminate on the filing of the police report on the conclusion of the
investigation and the court is not bound to accept the results of an investigation conducted by
the police.15 In the case the police concludes that no case is made out against the accused, the
Magistrate has to issue a notice to the informed/victim and hear him out. After hearing the
informant, the court can, notwithstanding the closure report, choose to proceed with the
matter, as a case based on police report or even a prior complaint. The third option available

14
(2008) 2 SCC 409.
15
Vishnu Kumar Tiwari v. State of Uttar Pradesh (SC), decided on 9 July, 2019.

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is ordering further investigation. Section 173(8) of the CrPC expressly lays down such a
course of action.

The Malimath Committee had recommended that a provision on the following lines be added
immediately below Section 311 of the CrPC : Power to issue directions regarding
investigation “Any court shall, at any stage of inquiry or trial under this Code, shall have such
power to issue directions to the investigating officer to make further investigation or to direct
the Supervisory Officer to take appropriate action for proper or adequate investigation so as
to assist the Court in search for truth.”16

5. ARBITRARY POLICE POWER IN ADVERSARIAL SYSTEM

The role of police initially was to supress agitation and to further the agenda of Britishers by
keeping Indians in check. But as we move from police state to welfare state the role of police
became to prevent crime and maintain peace in the society but for this purpose the police
cannot act arbitrarily. The police have to be humane. It has to abide by the constitutional
norms. However, even after independence we keep witnessing brutality of police.

The Bhagalpur Blinding case17 related to the blinding of prisoners in Bhagalpur by its prison
officials. This inhuman act was treated as violation of the fundamental right to life guaranteed
under Article 21 of the Constitution. Conceding the state liability, the court directed the state
of Bihar to provide them the best treatment at state cost.

Then came the case of Rudul Sah v. State of Bihar18, in which the petitioner had already
completed his sentence and the prison officials did not take care to release him. He was kept
in illegal incarceration for many years and the hon'ble Supreme Court awarded Rs.35,000/- as
compensation to the poor victim.

It is generally seen that the police officials violate the protections available to arrested
persons under the Constitution and the Criminal Procedure Code. In Bhim Singh v. State of
J&K19 the Supreme Court felt shocked when it learnt that a member of the legislative
assembly of Jammu and Kashmir was wrongfully arrested with the sole object of stopping

16
Justice Malimath Committee Report.
17
Khatri v. State of Bihar, 1981 SCR (2) 408.
18
(1983) 4 SCC 141.
19
AIR 1986 SC 494.

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him to attend the session. The apex court treated it as a gross violation of fundamental rights
under Articles 21 and 22 and awarded him Rs. 50,000/- as compensation.

In P.U.D.R. v. State of Bihar20, twenty-one persons died as a result of police firing at a

peaceful meeting and the court awarded Rs. 20,000/- for each death without prejudice to any
just claim of compensation which could be filed by their legal representatives.

Nilabati Behera v. State of Orissa21 is yet another case of police atrocity, where the deceased
was caught by police and kept in custody for a day and next day his dead body was found on
the railway track with multiple injuries. The police tried to make a story that he ran away
from the prison and committed suicide. The court did not believe on the police enquiry and
invoking its judicial activism, the apex court observed that it could evolve new tools and
provide remedy in cases of the violation of the fundamental right. Since the state could not
prove its innocence a compensation of Rs, 1,50,000/- was awarded.

In D.K.Basu vs. State of West Bengal22 the Court gave guidelines for arrest and held that:

“Torture of a human being by another human being is essentially an instrument to

impose the will of the ’strong’ over the ‘weak’ by suffering. Custodial violence,
including torture and death in the lock ups, strikes a blow at the Rule of Law, which
demands that the powers of the executive should not only be derived from law but also
that the same should be limited by law. Custodial torture is a naked violation of human
dignity and degradation with destroys, to a very large extent, the individual personality
and is a calculated assault on human dignity.”

In Prakash kadam v. Ramprasad Vishwanath Gupta23 the SC while denying bail to police
officers accused of contract killing by way of fake encounter observed that in cases where a
fake encounter is proved against policemen in a trial, they must be given death sentence,
treating it as the rarest of rare cases. Fake encounters are nothing but cold blooded, brutal
murder by persons who are supposed to uphold the law. Similarly, in Mehboob batcha v.
State24 it was held that custodial violence in police custody is a violation of Article 21 of the
Constitution and must be protected.  In case of custodial death, the policemen responsible
must be given death sentence, treating it in the category of ‘rarest of rare’ cases.

20
1987 AIR SC 355.
21
1993 SCR (2) 581.
22
AIR 1997 SC 610. 
23
(2011) 6 SCC 189.
24
(2011) 7 SCC 45.

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It is worrying that recently the number of police encounters have increased in India but more
worrying is the fact that they are getting support of public at large. For example, the
Hyderabad encounter and Vikas Dubey encounter in Uttar Pradesh have received support of a
lot of people even though they had been covered with doubts of cloud.

In Bhim Singh v. Union of India25 the Court held that police usually do not register FIR as
stated by the FIR and that it acts as per its comfort. Recently in Purna Chandra Mohapatra v.
State of Odisha26, the Orissa High Court directed the State pay compensation of Rs five lakhs
to the family of deceased for the avoidable death of a person due to negligence in police
custody.

6. SAFEGUARDS AGAINST POLICE POWER IN ADVERSARIAL SYSTEM

Human rights are traditionally known as 'natural rights' and can be said to have their origin
from the divine law of nature. The right to life and liberty has been held to be a basic human
right. Through its various pronouncements, the Supreme Court of India has been successful
in creating human rights jurisprudence and helping the poor people of our country. After the
interpretation of Article 21 in Maneka Gandhi v. Union of India27, the procedure for
deprivation of life and liberty has to be just, fair and reasonable procedure.

Presence of lawyer during interrogation of the accused

In Miranda v. Arizona28 the US Supreme Court held that adversarial system demands that
government seeking to punish a person has to do it by its own labour and not by involuntary
confession compelling from mouth of the accused. The court gave guidelines which came to
be known as Miranda Warnings. Prior to any questioning the accused should be warned that:

i) he has a right to remain silent;

ii) any statement that he makes can be used against him in the evidence;

iii) he has right to presence of attorney either retained or appointed.

25
2014 SC.
26
Decided on 27th January, 2021.
27
AIR 1978 SC 597.
28
384 US 436.

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The right to presence of defence lawyer during investigation was made a constitutional right
by 6th Amendment of US Constitution. In the case of Nandini Satpathy v. P.L. Dani29 the
Supreme Court of India favoured the presence of layer during interrogation of the accused as
a fundamental right under Articles 20(3) and 22(1). By the Criminal Procedure
(Amendment) Act, 2008 Section 41-D has been inserted in the Code which provides for the
right of the arrestee to meet his advocate even at the stage of interrogation. In England also
the accused has a right to have Duty Solicitor during investigation and these protections are
available to the accused there also.

Protection against self-incrimination

Section-161(2) of CrPC provides a protection to the person to be interrogated that the

questions the answer to which would have a tendency to expose him to a criminal charge or
to a penalty or forfeiture need not to be answered. This provision is in consonance with the
constitutional mandate provided under Article 20(3) which provides the protection against the
self-incrimination. The protection given under Article-20(3) is applicable at all the stages of
criminal justice system, while the protection given under Section 161(2) only with respect to
interrogation made at the stage of investigation. In the case of Nandini Satpathy v. P.L. Dani30
it was held by the Supreme Court that the accused person cannot be forced to answer
questions merely because the answer thereto are not implicative when viewed in isolation and
confined to that particular case. He is entitled to keep his mouth shut if the answer sought has
a reasonable prospect of exposing him to guilt in some other accusation actual or imminent,
even though the investigation under way is not with reference to that. Amendment 5 of US
Constitution provides that no person shall be compelled in any criminal case to be a witness
against himself. In the case of Ajmal Amir Kasab v. State of Maharashtra 31, the Court held
that the right to be represented by a lawyer and the right against self- incrimination would
remain incomplete and unsatisfied unless those rights are read out to the accused.

Confession to Police officer

Sections 25 and 26 of the Indian Evidence Act expressly provide that confession given by
accused to police officer of when in custody of police officer cannot be proved against him in
the court. This protection is given to the accused keeping in view the working of police in
general as the police is known to use third degree torture to extract information. In Brown v.
29
AIR 1978 SC 1025.
30
AIR 1978 SC 1025.
31
(2012) 9 SCC 1.

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Mississippi32, the US Supreme Court held that a confession obtained by police using force
and torture cannot form basis of conviction as it violates Amendments 4 and 5 of US
Constitution.

Power of arrest

Since the time of Magna Carta, it has been an established principle in English law that a
person accused of any crime must get a fair trial in which he can put up his defence. In the
case of Joginder Kumar v. State of U.P.33 the Supreme Court held:

“No arrest can be made because it is lawful for the police officer to do so. The
existence of the power is one thing. The justification for the exercise of it is quite
another. No arrest should be made without a reasonable satisfaction reached after some
investigation about the genuineness and bona fides of a complaint and a reasonable
belief both as to the person’s complicity and even so as to the need to effect arrest.
Denying a person his liberty is a serious matter.”

The Supreme Court in Arnesh Kumar v. State of Bihar34 ruled that decision to detain &
remand is not a mechanical act and a remand order has to be a reasoned order and should
reflect due application of mind. The magistrate is also under an obligation to peruse the
Arrest Memo/Medical examination report of the accused (to rule out cases of police torture)
as well as the victim (to preserve crucial medical evidence). 35 According to the Supreme
Court, the arrested accused person must be informed by the magistrate about his right to be
medically examined in terms of Section 54.36

Procedure when the investigation cannot be completed within 24 hours

When a person is arrested without warrant, he is required to be produced within 24 hours

before the nearest Judicial Magistrate according to the provisions of Section 57 of CrPC.
Article 22(2) provides that no person can be detained beyond the period of 24 hour without
producing him before the nearest Magistrate. Section 167 of CrPC fulfils this constitutional
mandate. It provides the procedure when the detention of a person is required beyond the
period of 24 hour.

32
1936 US.
33
(1994) 4 SCC 260, Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312.
34
(2014) 8 SCC 273.
35
Section 53/53A/164A of the CrPC
36
Sheela Barse v. State of Maharashtra, 1983 SCC (Cri J) 353.

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 7. NEED FOR REFORMS

As we move towards a welfare state, various changes are needed in the way police works in
India. Article 5 of UDHR states that No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. Article 9 of UDHR states that No one shall be
subjected to arbitrary arrest, detention or exile which is also supported by Article 22 of Indian
Constitution.

In Prakash singh v. Union of India37 the Supreme Court of India instructed the Central and
State Governments to comply with a set of directives laying down practical mechanisms to
kick-start police reform. The Court directives seek to achieve two main objectives: functional
autonomy for the police through security of tenure, streamlined appointment and transfer
processes, and the creation of a buffer body between the police and the Government and
enhanced police accountability, both for organisational performance and individual
misconduct.

In Yashwant v. State of Maharashtra38 while upholding the conviction of some police officers
involved in a custodial death of a man, the Apex Court underscored on the need to develop
and recognize the concept of democratic policing wherein crime control is not the only end,
but the means to achieve this order is also equally important. There has to be zero tolerance
for custodial torture and custodial killings. Only and only then can we call ourselves a truly
democratic and developed country.

Separate police department for investigation and law and order maintenance

The faculties of the mind which must be brought into play at the time of the investigation are
different from those which are to be exercised when dealing with an urgent situation of
breach of public order. The Law Commission has also highlighted the following benefits
rising from separation of the two functions: (i) reduction of executive control over police
investigation as the latter would enjoy protection of the judiciary, (ii) better investigation
owing to scrutiny of courts which will lead to successful prosecutions, (iii) reduction in the
possibility of unjustified and unwarranted prosecutions, (iv) speedy investigation leading to
speedy disposal of cases, (v) enhancement of expertise of investigating police, and (vi)
increased public cooperation and confidence.39

37
(2006) 8 SCC 1.
38
Criminal Appeal No(s). 385-386 of 2008, decided on 4th September, 2018.
39
154th Report of Law Commission of India.

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Separate Magistrate cadre to monitor investigation

On 24th February 2021, during the hearing of In re: to issue certain guidelines regarding
inadequacies and deficiencies in criminal trial40 the Supreme Court orally make a remark that
it is thinking about creating a separating Magistrate cadre to monitor evidence collection by
police. However, the Court also made it clear that these Magistrate will not try the case. This
clearly shows that we are rapidly moving towards inquisitorial system of law. Thus, no model
is absolute these days.

8. ADVERSARIAL SYSTEM IN ENGLAND

When we speak of England as applying an adversarial procedure, we mean this in the sense
of a procedural model. Just as countries like France and the Netherlands do not use pure
inquisitorial processes of justice, so too England use, in theory, a mixed system. However,
this does not mean that the adversarial label is redundant. In England, cases are no longer
fought out between the victim and the accused. The role of accusation is passed first to the
police and then to the public prosecution service, the Crown Prosecution Service (CPS).
Given the police monopoly on carrying out the investigation that will form the prosecution's
case it is broadly adversarial procedure.

The Police and Criminal Evidence Act 1984 (PACE) sought to provide a more uniform and
clearly defined legal framework, while also increasing the authority of the police in the
process. Defense rights were also strengthened in order to somewhat counterbalance this
increase in police power. The statutory right to custodial legal advice was perhaps the most
important reform in this respect. Under PACE section 58, suspects arrested and held in police
custody are afforded the right to consult with a lawyer in private at any time.

CHAPTER IV
9. INVESTIGATION IN INQUISITORIAL SYSTEM

According to Black’s law dictionary, the inquisitorial procedure is “Evidence of the

application of criminal law under which the judge performs specific functions in the court

40
https://www.livelaw.in/top-stories/supreme-court-separate-magistrates-cadre-monitor-evidence-collection-
police-170343 (Visited on 27th March 2021).

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like, deciding what questions to pose and establishing the purpose and nature of the
inquiry.”41 In criminal procedure based on inquisitorial system the initial investigation is
carried out by the judicial police, i.e., the police is under the control of Magistrate. The
accused has the duty to reveal the truth and any means can be used to extract information
from him.

Active role of Judge in Investigation

The judge plays an active role and is involved in all the proceedings. The inquisitorial process
grants more power to the judge who oversees the process, whereas the judge in the
adversarial system serves more as an arbiter between claims of the prosecution and defence. 42
That is why conviction rate is higher in inquisitorial system.

10. INQUISITORIAL SYSTEM IN FRANCE

Under the French System - Investigation in respect of serious and complex offences is done
under the supervision of an independent judicial officer, who for the purpose of discovering
truth collects evidence for and against the accused and then decides whether the accused
ought to be tried or not. In case of there being adequate material, the matter is forwarded for
an adversarial trial by jury. The juge d’instruction (Judge of inquiry) commences
investigation on either a referral by the prosecutor or on a private complaint.

To assist fact finding, the judge has a wide range of powers available. He may issue search
warrants and order seizure of property. He also may issue warrants requiring attendance of
other witnesses; he may even require experts to testify. In fact, if there is a conflicting
testimony, witnesses are confronted with each other and often with the accused. This exercise
is not done, in an adversarial system, till the recording and appreciation of evidence. The
evidence collected and the testimony of witnesses recorded - make up what is known as a
‘dossier of a case’, which serves as a guide for the judge in the preliminary hearing in the
court. It is on the strength of this file that the juge d’instruction bases his decision as to
whether to commit a case to trial. The trial is conducted by another judge or the jury, which
allows a fresh set of eyes to evaluate the evidence collected. The judges are known for being
impartial and objective and their services are invoked in the most complicated of all cases.

41
Blacks Law Dictionary.
42
Dammer, Harry and Jay Albanese (2014). Comparative Criminal Justice Systems, 5th ed. Wadsworth.

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Disadvantages of Inquisitorial Investigation

It will be naive to suggest that the institution of examining magistrates is devoid of

imperfections. An inquisitorial system is not at all infallible. Investigating magistrates have a
right to keep suspects in detention for extended periods of time without trial. It is also argued
that the ‘examining magistrate’ system is also less effective in ordinary crimes. It is slower
and sometimes chokes the system; it is relatively more opaque and the concentration of
power in one magistrate sometimes leads to arbitrariness in exercise thereof.

Advantages of Inquisitorial Investigation

The Inquisitorial system has certain undeniable advantages. It can be used to avoiding
misunderstandings at an earlier stage in the case. In addition to this, in an inquisitorial system
- ‘truth seeking’ is the fundamental value, and the very ‘end’ of the system. This is contrast to
the Adversarial system, where by competing to prove one’s case to the judge - parties are
encouraged to win, not uncover the truth. It is said that the move towards a more pro-active
and participative magistracy, on the lines of the examining magistrate is the need of the hour.

CHAPTER V
11. CONCLUSION & SUGGESTIONS

The criminal justice system addresses the consequences of criminal behaviour in society and
has the objective of protecting peoples' right to safety and the enjoyment of human rights.
Strengthening the rule of law relies on the prevention of crime and the promotion of fair,
humane and accountable criminal justice systems. Thus, the role of police becomes very
important in administration of justice. At some level both Inquisitorial and Adversarial
criminal justice systems are designed to uncover the truth and it is only the manner which is
different. Part of hypothesis is true that unbridled power of police under adversarial system
leads to gross violation of human rights. However, it is concluded that no system is full proof
and the need of the hour is to adopt adversarial system with features of inquisitorial system
wherever required. In India, ample powers are vested in the magistrate to check arbitrary
arrests, police excesses & to facilitate a more incisive probe into the discovery of truth, at
various stages of an investigation, and even after filing of the police report. It is just that the

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Magistrates need to become more vigilant and they need to exercise their powers more
frequently to keep a check upon police powers. However, it is equally important to mention
that the level of investigation by police in India is very downgraded and there is a need for
enormous police reforms.

12. BIBLIOGRAPHY

Primary Sources

Statutes

1. The Constitution of India

2. The Code of Criminal Procedure, 1973

3. The Constitution of United States of America

4. The Indian Evidence Act, 1872

5. The Police and Criminal Evidence Act 1984

6. The Police Act, 1861

7. The Universal Declaration of Human Rights, 1948

Reports

1. 154th Report of Law Commission of India

2. 41st Report of Law Commission of India

3. Justice Malimath Committee Report

Secondary Sources

Books

1. R V Kelkar, Criminal Procedure, 6th edn., 2017.

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2. Dammer, Harry and Jay Albanese (2014). Comparative Criminal Justice Systems, 5th ed.
Wadsworth

3. Brand, Paul and Joshua Getzler, eds. (2015). Judges and Judging in the History of the
Common Law and Civil Law: From Antiquity to Modern Times. Cambridge University Press.

4. Black’s Law Dictionary

Articles

1. Bostjan M. Zupancic, Truth and Impartiality in Criminal Process, 7 J. CONTEMP. L. 39,

133 (1982)

2. Ralph J. Temple, In Defense of the Adversary System, 2(2) A.B.A. LITIG. 43, 47 (Winter
1976).

3. Bruno Deffains and Dominique Demougin, The Inquisitorial and the Adversarial
Procedure in a Criminal Court Setting, Journal of Institutional and Theoretical Economics
(JITE) Vol. 164, 2008.

Websites

1. Livelaw.in

2. Supremecourtcases.com

3. Wikipedia.org

4. https://www.humanrightsinitiative.org/blog/the-police-we-have-and-where-it-came-from-
an-analysis

5. https://www.prsindia.org/policy/discussion-papers/police-reforms-india

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