SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: BBA LLB (Hons)

Batch: 2016-21

Semester: IX

Course Name: COMPARATIVE CRIMINAL LAW

PRN: 16010126469

Name of the Student: AVIRATH PAREEK

INSTRUCTIONS

1. Mention your details only in the space provided above. If any other details
name, contact detail etc. are written anywhere else in the answer script it will
be treated as adoption of unfair means.
2. Use diagrams and sketches wherever required.
3. Examiner will conduct viva voce based on entire question paper set on the
subject.
4. Submission must be done by the student through google form link provided
by the examination department and all submissions must be in the word
format only(.doc/.docx). Submission of any other format will not accepted.
5. Submission will not be accepted beyond the deadline given by the
examination department in each subject. Student will be marked absent in
case of late submission.
6. Formatting guidelines: Font size & name: 12 & Times New Roman; Line
spacing 1.5; Justified; Page size: A4; No borders
7. Write your answer in your own language and do not copy paste from any
source. Read the question carefully and write your answer fulfilling the
requirements of the question.
8. If the students copy from each other’s assignment, it will be considered as
unfair means case and performance will be treated as null and void for the
entire examination.
9. Please read all the instructions given by the faculty in every subject in the
question paper.
Q. ‘A’ was the victim of Rape committed by ‘B’. A complained against B in the CO
1 police station and was made the stock of mockery due to her active involvement in NO
the complaint. Police started with investigation of the case but did not involve A 2
despite her willingness to participate in evidence collection. Criminal trial of B
began and evidences were presented to which A wanted to examine and
corroborate. However, A was not allowed by the judge to step into the case and
was confined to her own testimony in the case. B was acquitted due to insufficient
evidences and sexual history of A. A is aggrieved by her neglect in the trial and the
decision and seeks your legal advice for rights and remedies available under the
Indian law.
Substantiate your answer with the help of rights conferred upon the victim and the
level of participation in criminal trial in France, USA and Germany

In a criminal trial, the victim or the aggrieved party is the focal of the attention and to disperse
justice for their welfare is the primary aim of a judicial system. However, the victim is often-
times the most neglected party. Thus, the High Courts and Supreme Court through precedents
affirms and establishes the rights which must be safeguarded and afforded to such victim with
respect to a criminal trial.

Section 2(wa) of CrPC,1973, defines “victim” as a person who as suffered any loss or injury by
the act or omission of the accused person. The primary objective of criminal justice system is to
protect individual life, liberty and property but in the reformatory theory of punishment to punish
and reform the criminals, victims are often neglected. The Courts have in recent times, made
various attempts through judicial decisions to correct any such follies on their part.

Under Section 157 of CrPC, 1973 in an offence of rape, the recording of statements of victim
shall be conducted by a lady police officer at the residence of the victim. Furthermore, in Sakshi
v. UOI the Supreme Court reinforced the need for protection of the dignity of a victim of rape by
conducting the trial on-camera and affording the victim adequate privacy and comfort during the
process of criminal trial.

The following general rights of victim have emerged from the various decisions of both the High
Courts of the States as well as the Supreme Court which have been imbibed as part of the general
practice in criminal trials.
  The right to attend criminal justice proceedings. The family of the victim have also been
given the right to attend the proceedings of the trial.
 The victim is eligible for a limited compensation from the government program designed
to compensate the affected victims. This can be done by filing an application with the
prosecutor’s office. The Apex Court in Bodhisattwa Gautam v. Subhra Chakraborty
held that the judge hearing a rape offence is empowered to award compensation at the
final hearing of that offence or to award interim compensation, having satisfied the prima
facie culpability of the convicted accused.
 The victims must have the rights to be informed of the important events and proceedings
of criminal justice system.
 The witness or victim has the right to protection against intimidation which may include
specific protective measures such as the victim may be escorted by police to and from the
courthouse.
 The victim has the right to restitution. The victim must be reimbursed for the damage to
his property and must be restored for the harm caused by the convicted offender by order
of the court.
 The right to be heard. The victim must be heard during critical trial proceedings for his
own best interest and for positive direction of the trial.
 The right to speedy trial. The basic right provided to victim is of a speedy trial, hence
disposing of the case without any unreasonable delay.

France

France is signatory to EU’s Directive on victim’s rights and implemented policies to fulfill this.
In France, an inquiry and a trial constitutes criminal proceedings. There are two different types
of inquiry – judicial and police inquiry. Once the inquiry is concluded the case can referred back
to the court for its decision depending upon the evidence collected. If the investigation goes to
trial the victim has every right to participate in trial with help of a legal attorney. Once the prima
facie facts of the case has been brought before judge or police the victim is called in for an
interview. The responsibility of finding the accused guilty is one of the public prosecutor and not
of the victim or witness. The victim may provide certain evidence or details to provide the
complete truth before the court.
Following are some of the rights which are being conferred upon victim:

 To recuperate damages, French law looks usually to the offender of the crime, whenever
convicted, and to the victim's insurance, but also recognizes that these sources may not
always ensure compensation. A state fund has in this manner been established for victims
so that victims get more complete, adequate compensation.
 A victim is entitled to make statements at trial and present evidences in consonance with
the adversarial principle and the said can be forwarded to the defense and public
prosecutor before submission of such evidence.
 Whilst the trial, the victim is well informed of his rights to become a civil party through
the help of a legal attorney or legal aid or victim support association. A victim can obtain
copy of court files with prior authorization from public prosecutor or request a copy of
court files.
 The victim is notified of the date of trial and he can attend the proceedings. But he can
only attend closed hearing if he is a civil party or during his testimony only. The victim
will be assisted during the pendency of the trial by a victim support system.

USA

The US Code provides for the rights of crime victim in the following manner:

1. The right to complete restoration as provided in law.

2. The right to speedy trial without any unreasonable delay.
3. The right to protection from the accused.
4. The right to be informed of any public court proceeding, parole proceeding and the
decision of the court. This right includes the right to be timely informed of any deferred
prosecution or plea bargain.
5. The right to be informed of the abovementioned rights and certain services under the
Victim’s Rights and Restitution Act.

A motion can be filed by victim to reopen a plea or sentence if,

(a) his right to be heard has been denied during or before the trial in issue, or
(b) he has filed a petition before the court of appeals for a writ of mandamus within 10 days of
such plea or sentence, or

(c) he has not pleaded to the highest punishment for the offence charged which does not affect
his right to restitution.

Germany

The German criminal system is based on two principles:

(a) There is separation of powers between the accuser and the court which is absolute,

(b) The second principle is that the accuser or his representatives is not always the victim but the
states personifies with the assistance of prosecutor from the judiciary.

The main interest of a victim is to be protected as a witness. Apart from that the victims also
have an interest in actively participating in ongoing investigation of criminal act. The position of
victim has switched significantly since the past decade from one being called as witness to
discovery of truth and well informed about the case. It is within the rights of the victim to inspect
the prosecutors file and evidences attached thereto with help of an attorney. A victim can file a
specific statement of good cause to make his position as collateral prosecutor even stronger.
Thus, the victim stands in good position to influence the proceedings by his declaration of victim
to become collateral party when the prosecutor has filed official accusation.

In conclusion, it can be said that the importance to rights of crime victims has elevated greatly in
past decade. Many nations has implemented policies to protect the victim’s rights or it has been
developed through precedents, like in India. However, the right of victim to participate in trial is
only limited to his testimony and victim impact statement. Although, the other rights are
provided to victim including but not limited to right to speedy trial, right to attend proceedings,
right to compensation.

Q. Analyze the causes for abolition of Jury system in India and factors for its CO
2 prevalence in other major nations. NO 4
The jury system in India could be dated back to 1665 when the first case was decided by a jury
trial. The development was brought about by the East India Company. In a jury system, a group
of elected officials who help in finding the facts and decision in a trial.

The K.N Nanavati case in 1959 was a landmark judgment which spelled the end of jury trial and
the enactment of Criminal Procedure Code, 1973 finally abolished the archaic system. In India,
apart from matrimonial cases in Parsi Court the whole system of jury trial has been abolished

To understand the shift from the jury trial system, in India it is relevant to know the steps taken
towards the slow ejection of jury trial from India nearly a decade after independence. By the time
of trial in 1959 there were many discrepancies between the judiciary and the common jurors. The
members of jury were often considered easily corruptible and naïve and not well-versed with the
technicalities of law. The 14th Law Commission Report in its recommendation stated the need for
the abolishment of the jury system in India back in 1958.

In the Nanavati Case the jury erroneously and overwhelmingly voted 8-1 in the favour of the
accused to acquit him. The Presiding Judge held this decision to be perverse in nature and asked
for the same to be heard before the High Court of Bombay where the verdict was overturned.
The jury's inability to convict Nanavati, it is regularly contended, drove directly to the abolition
of jury trials all through the nation.

In the application of retrial before the Bombay High Court, it was contended that the jury had
been misled by the Presiding Judge on the accompanying critical points:

(a) the burden of proof of establishing that it was an accident and not planned homicide was on
Nanavati,

(b) That the judge wrongly told the jury that the provocation can also come from a third person,
and

(c) The jury was not instructed that Nanavati's defense must be demonstrated, to the degree that
there is no reasonable uncertainty in as per the reasonable persons test.

The court accepted the contentions, dismissed the jury's verdict and the case was freshly heard in
the High Court. It was guaranteed that jury had been impacted by media and was available to
being misled.
The jury system is still prevalent in countries like the USA, UK, Germany and Australia is
because of its acceptance by judiciary and society in general and its recognized communal
practice. Following are some of the reasons why jury system is still in practice in most of the
nations.

1. Removes bias from judicial system: The jury system eliminates the bias from the judicial
system as there is a gathering of large number of people to discuss the merit and facts of a
criminal case. Though it is not always certain that a person from jury with a bias against
the accused can influence the decision making process.
2. Jury consists of community members: A crime is not merely done against an individual
but against the society at large. It therefore makes sense to involve the whole community
to help foster better decision making keeping the needs of the society in mind.
3. The power of voir dire: Juries are groups of individuals sworn to deliver a verdict in
court based on the evidentiary facts presented to them. In the event that a court must
select a jury for a trial, at that point members of the community become potential jurors
from a list gathered from voter registrations, ID renewals, or driver's licenses. Judges and
lawyers have the occasion to question everyone to see in the event that they can be
reasonable and unbiased. On the off chance that the prosecution or defense does not
really accept that this to be possible for that individual, at that point they can dismiss
them from service. This process is called voir dire, which seeks to conduct a trial with an
unbiased jury.
4. Civic Duty: A civic duty is considered as an obligation to serve expecting in return some
specific rights or protection. It is a responsibility expected from each member of the
society. These duties maintain democratic values far and wide, however most civic duties
include covering taxes, obeying the law, or voting. The United States considers
registering with the Selective Service as a component of this commitment. Serving on a
jury is another approach to safeguard these rights.
5. Positive Correlation for the criminal judicial system: Juries have gained notoriety for
getting their verdicts right, regardless of whether the lawyers associated with the case
may disagree. Albeit some judges have the power to set aside such a decision, most
individuals will acknowledge the result because the jury is a representation of the whole
 community. For example, the conversion rate of verdict in America is as high as 99% and
the rate of imprisonment is relatively low from the exonerations.

Q.3 Explain the prosecution system prevailing in India and France with suitable CO
examples. NO 1

The two basic models of administration of criminal justice are followed in world. Of which India
follows the Adversarial or Accusatorial system wherein the role of judge, police, Prosecutor and
the modus operendi changes according to model of criminal justice system and the ultimate aim
is one of fair trial. On the other hand, in France and mostly in all European nations the
Inquisitorial Model is followed where the ultimate goal of a trial is to search for the truth. Where
the Judges, police and prosecutor works together in the pre-trial procedure to strengthen the case
of prosecution by actively participating in the investigation.

India

The criminal justice system in India as we know it today traces its origin to the Colonial era.
Prior to the establishment of the courts in Calcutta, Madras and Bombay under the Regulating
Act of 1773, there was no defined system of prosecution. The parties had to represent themselves
before the King or the Emperor. However, under the British rule, a more formal system was
established.

Soon enough, the Indian Penal Code was enacted to bring further uniformity by defining the
crimes in British India. Following which, a need arose to bridge the gap between definition and
procedural implementation of the letter of law. Thus, the Criminal Procedure Code in the year
1861 was introduced to govern the procedure of criminal law in India. The Code was amended
in 1898 and then in 1973. Its primary aim was to provide for efficient machinery for the
disbursal of justice for crimes as defined under the IPC. Under Section 4 of the Cr.P.C, “all
offences under the Code shall be investigated, tried and otherwise dealt with in accordance to the
provisions of this Code.” The Code in essence attempts to ensure the principles of fair trial and
natural justice are observed right from the investigation and up until the prosecution and
conviction.
  A person against whom criminal proceedings are instituted is vested with right to be
defended by a pleader of his choice. Where a person accused with an offence is unable to
appoint a pleader by reasons of insufficient means, the court can then assign a pleader to
defend the case of accused at the expense of the state.
 Where the investigation is not concluded within 24 hours of the arrest than police cannot
hold any accused in police custody more than 15 days during the period of investigation
without the prior consent of the court.
 As soon as the report of police officer is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance of the offence on a
police report, a report in the form prescribed by the State Government.
 Every person who is arrest has right to consult a legal practitioner of his choice.

A person accused of an offence remains innocent until his guilt is proven in the criminal court.
The burden of proof is upon the accused to prove his innocence. The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustration: Ram sues Shyam for land of which Shyam is in possession, and which, as Ram
asserts, was left to Ram by the will of Ravi, Shyam’s father. If no evidence were given on either
side, Shyam would be entitled to retain his possession. Therefore the burden of proof is on Ram.
The evidence which are being taken in course of court trial or proceedings shall be collected in
the presence of the accused or his pleader.

In India, the prosecutor is independent of investigative and judicial functions. They do not
participate in the investigative phase. Thus, the prosecutor has no role to play in the pre-trial
stage. Prior to 1973 when both the police and prosecutors reported to the police department,
Prosecutors enjoyed a major role during the pre- trial phase. Today, however, prosecutors are
prohibited from investigation.

In India, the wheels criminal law investigation is set into motion with the filing of a First
Information Report (FIR) which suggests commission of a cognizable offence to the police
department.

During pre-trial stage, the Prosecution:-

1. Appears before the court to obtain the arrest warrant against the accused.
 2. Obtains search warrants from the court for searching specific premises for the collection
of evidence.
3. Obtain the custody of the accused.
4. If the accused cannot be traced, the prosecution will initiate proceedings in the court to
declare him a proclaimed offender and for the confiscation of his assets, both movable
and immovable.

France

The history of the criminal justice system in France is akin to that of the system in India. Prior to
the year 1958, the State delegated their judicial functions and powers to the employees working
with the courts. They were tasked with the investigation, collection of evidence, and the
execution of sentences among other things. Often-times, these State employees did not have the
requisite legal expertise as it was not a necessary qualification. As a result, there arose a need for
the appointment of legally sound and capable officers to represent on behalf of the State. Thus,
the post of the prosecutor, otherwise known as the Procureur was created in France.

The criminal justice system in France features a distinct separation of powers between the
prosecutorial, investigative and adjudicative functions. The French Judiciary also known as the
Magistrature his divided into two branches: the first is the standing judiciary which consists of
the public prosecutor known as the ministère public or procureur de la.

French criminal law accommodates three classes of crimes including felony, misdemeanor and
petty offense. The criminal procedure in France is viewed as fundamentally inquisitorial. What's
more, the operational cycle of French criminal justice is separated into three phases: pre-trial,
trial and post-trial. The primary procedure during the time spent prosecuting a criminal for most
crimes is an investigation by a pre-trial judge. Various procedures are accommodated the
indictment of each category of offense.

In French Criminal procedure, the prosecutor is ought to consider the involvement of the accused
in the crime with sufficient reasons to investigate the crime and link the accused to magnify his
criminal liability. In the French procedural law three major steps that needs to be followed in that
order – police investigation and the prosecution, judicial investigation and lastly, the trial. Any
person who undergoes the rigors of the procedure is endowed with the confidentiality, which is
provided significantly in the code and also there is punishment provided upon its breach.

The system of prosecution in France differs from the Indian model as it is inquisitorial rather
than adversarial. It is the duty of the procureur to assist the Court in this quest to find the truth of
the case. In India, the prosecutor is in-charge of framing the charges which are then approved by
the judge. However, in France, the procureur is in-charge of framing the charges without seeking
any such approval from a judge.

At the time of the trial when an offence is ought to be proved by the procureur, he enjoys the
right to examine and question both the accused as well as the witnesses. Similar to the Indian
Prosecution System, there is a presumption of innocence and the burden of proof rests with the
procureur who must adhere to the standard of “beyond reasonable doubt” for criminal
conviction.

The common goal of the prosecution frameworks of both the nations is to guarantee regulation of
justice and guarantee that the guilty must be exposed to the orders of law and not wander freely,
which is without a doubt one of the exceptionally essential regarding why law is made in any
case.

Q. Describe the difference in the process of criminal trial in adversarial and CO

4 inquisitorial system with the help of legal provisions and examples from NO 3
different countries.

THE ADVERSARIAL SYSTEM

The adversarial system of justice was adopted from the colonial masters, the British where the
burden of proof the guilt of the accused beyond reasonable doubt. Until then the accused is
presumed to be innocent. The main objective of the Criminal Judicial System is one of fair trial
and to punish the guilty and protect the innocent. The trial takes before a neutral judge who finds
out the true facts of the case and come to a decision regarding the guilt of the accused from the
statements presented by the prosecution and the defence. The role of the judge is develop an
opinion on whether the prosecution has proved his side of the case beyond reasonable doubt. 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 one of the most
influential right vested with the accused is that of silence and thus he cannot be compelled to
reply to any accusations of the complainant. The prosecutor and the defence can cross-examine
the evidence and witnesses to strengthen their side of the case and discover key relative
information which has not been brought up by the opposition.

Fair Trial in India

A trial is a judicial process by which a judge decides on the innocence or guilt of a person
accused of a criminal offence. The state provides for a bundle of rights with the accused and one
of which is fair trial which is not a mere favor afforded to seeker of law. All criminal trials are
based on the principle that the accused is innocent till proved guilty. The basic right of the
accused is presumption of his innocence until his guilt is proven which form the basic structure
of Indian Legal System. This presumption is the basic principle which is present throughout the
procedure of criminal justice system from the very moment of suspicion of crime through
investigation and until the final decision of the court. The entire Criminal Justice Structure
revolves around the principle of innocent until proven guilty and it is designed to protect the
rights of the parties connected. At the point when it is said that a defendant to a criminal offence
is assumed to be innocent, what is truly implied is that the burden of proving his guilt and
breaking the presumption lies on the prosecution. In P.N. Krishna Lal v. Kerala the Supreme
Court stated that the principle of presumption of innocence is long established in the Constitution
of India. India is signatory to the Universal Declaration of Human Rights and the Civil and
Political Rights Convention, guarantees fundamental freedom and liberty to an accused person.
The procedure established for criminal justice must pass the test of the rights guaranteed by those
fundamental human rights.

Statement and Examination

According to section 161(2) of Criminal Procedure Code a person is bound to answer all
questions truly relating to a case of criminal offence by a police officer. He may not be required
to answer questions which may expose him to a criminal charge or a criminal penalty. The
Criminal Procedure Code further protects the accused by providing the right to silence. The
accused cannot be rendered punishment for likelihood of refusing to answer or for providing
false answer to a judge. The accused can be arraigned as a witness for defence in a criminal trial
but he cannot be compelled to furnish evidence at the prosecution request. Thus, the accused has
a right to silence both during investigation and at trial and the court will always be under
presumption against guilt and in favor of his innocence until the final decision of the court.

Therefore in any adversary system, the opposing sides present evidence, examine witnesses, and
lead cross-examinations, each with an end goal to deliver data gainful to its side of the case.
Competent questioning can frequently deliver testimony that can be made to take on various
meanings. What seemed absolute in direct testimony can raise doubts under cross-assessment.
The basic right of the accused is presumption of his innocence until his guilt is proven which
form the basic structure of Indian Legal System. This presumption is the basic principle which is
present throughout the procedure of criminal justice system from the very moment of suspicion
of crime through investigation and until the final decision of the court.

INQUISITORIAL SYSTEM

In the inquisitorial system of justice, the judicial police officers are vested with power to
investigate criminal offences. The investigation is carried out and the documents are drawn on
basis of the conclusion of their investigation. A notice in writing has to be given by judicial
police officer of each offence which he persuade and submit his report after completion of
investigation to the concerned prosecutor. After considering the report of the judicial police
officer, if the prosecutor is of the opinion that no case is made out, the case can be closed and if
not, then he can instruct the judicial police officer to further conduct the investigation. The
investigation is conducted in a neutral and objective manner to gather the evidence in favor or
against the accused and help the prosecutor to discover the truth. 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.

The Judge is empowered to issue warrants, arrest the accused, direct searches and examine
witness for proper investigation of the case at hand. 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. The person accused of criminal offence
has right to be heard and participate in the investigation proceedings through a legal practitioner.
The responsibility is on the judge to ascertain the truth and till then the accused is presumed to be
innocent. The witnesses in the trial can attest their statement in the investigation by the judge
which are admissible and form the basis for the prosecution case during final trial. In the trial the
accused and the victim are entitled to make statement in the hearing before the judge. Though the
parties only play role in suggesting the questions that may be put to the witnesses. The concept
of cross-examination of witness’ statement during hearing is nonexistent and it is the judge who
puts the questions before the witness. Character and antecedents evidence of the accused such as
previous conduct or convictions are considered relevant for proving the guilt or innocence of the
accused person.

An independent judicial officer is appointed, for the purpose of discovering truth collects
evidence for and against the accused, to supervise the investigation for serious and complex
offences. For example, in France the Judge of Instructions personally makes sure that the
investigation for heinous offences like rape, murder is conducted under his supervision. In the
inquisitorial system the Judge of instructions performs functions of the investigator and the
Judge to collect evidence and investigate for and against the accused to discover the truth. The
only a limited right of the defence is that of suggesting questions to the Judge of Instructions.
The acceptance of such questions is with the Judge of Instructions therefore, an improper and
biased evaluation of the evidence is restricted through the judicial judge’s discretion.

Distinction between Adversarial System and Inquisitorial System

1. The binding power of case laws: In the adversarial system, the previous decisions by the
higher courts are considered to have a binding impact, however in the inquisitorial
system, the precedents are not given that much significance. The judges or jury give
judgment independently using the applicable legislation, so much significance is given to
the code of law.
2. In the adversarial system, the parties for example police and defense have a responsibility
of bringing evidence, whereas in the inquisitorial system the government officials (PP)
collects the pieces of evidence, they, at the end of the day, can direct the investigation or
they may request the police to do as such. PPs can instruct the police about the priorities.
 In some inquisitorial systems, a judge may lead the investigation. Oppositely in
adversarial system judges don't assume any part in the investigation.
3. There is nothing similar to an independent examination in adversarial system boss and
cross-examination is the piece of trial as it were. In inquisitorial systems cross
examination of witnesses and collection of evidence is also conduction under the
supervision of examining judge.
4. As the adversarial system is by and large established in common law nations, courts have
general jurisdiction to adjudicate and as the inquisitorial system is followed in civil law
countries, there are special courts to adjudicate constitutional law, criminal law,
administrative law, commercial law, and civil or private law.
5. In the adversarial system there is a strong order of admissible and inadmissible evidence
and hearsay evidence is all the more promptly permitted in the event that it is reliable.
Rules identifying with admissibility are more tolerant in the inquisitorial system. On the
off chance that the judge decides specific evidence as pertinent, that is conceded. In
numerous inquisitorial systems, there is no hearsay rule by any stretch of the imagination.

Q. Elucidate upon the measures adopted by India, USA and Germany for witness CO
5 protection along with legal provisions and examples. NO 2

The witnesses play a crucial role in the criminal justice system of any jurisdiction— common
law or civil law. The foundation of a criminal case lays on the construction of evidence,
particularly which is permissible by codes of law as was elucidated by Justice Wadhwa. A
witness therefore, is as crucial to the trial as the plaintiff and the defendant.

The witness performs an important public duty of assisting the court in deciding on the guilt or
otherwise of the accused. He submits himself to cross examination and cannot refuse to answer
questions on the ground that the answer will incriminate him.

Section 190 of the IPC specifies the punishment for those witnesses who fail to provide the court
correct information. Furthermore, Section 190-195 of the Indian Penal Code spell out the
penalties for the same.
Competency denotes legal capacity to give evidence as mentioned under Section 118 of the
Evidence Act. If a witness is deemed incompetent to give evidence then the judge is bound as a
matter of law to reject his testimony.

A witness may be competent but still may not be compelled to depose before the court. Again,
witness who is competent may be compelled by court but law may not force him to answer
certain questions. For instance, magistrates, lawyers, spouses etc. have right to be protected from
answering certain questions when they are being examined as witness. The value of witnesses
can‘t be denied, keeping in view the dependency of the criminal proceedings on the testimonies
and cooperation of witnesses in all the stages of the proceedings, especially in those cases where
the prosecution has to establish the guilt with absolute certainty via oral cross examination of
witnesses in hearings open to world at large. In such cases, the testimony of a witness, even if
not as an eye witness, may prove to be crucial in determining the circumstances in which the
crime might have been committed.

GERMANY

German criminal procedure law obliges the criminal prosecution authorities to prosecute all
suspects provided there are sufficient factual indications of a criminal offence which may be
prosecuted. Witnesses in Germany are on principle obliged to appear before the public
prosecution office and in court in response to a summons, to testify truthfully and to swear an
oath on their testimony if requested to do so.

These are civil duties which are not established by the Code of Criminal Procedure, but are
imposed as a condition. The State has the possibility to enforce this obligation through coercive
procedural measures. On the basis of this obligation which has been imposed by the law, a
particular obligation is incumbent on the State to protect the witness’ legal interests, above all of
life, limb and certain assets, if these are placed at risk as a result of the testimony. Witness
protection programs have been in place in Germany since the mid-1980s. They were first used in
Hamburg in connection with crimes related to motorcycle gangs. In the following years, they
were systematically implemented by other German States and the Federal Criminal Police
Office. In 1998, the Witness Protection Act was promulgated.
The Act included provisions that regulated criminal proceedings. In the year 1998, the Criminal
Police Task Force developed a witness protection concept outlining for the first time the
objectives and measures to be implemented by agencies involved in witness protection.

This led to the issuance of general guidelines for the protection of at-risk witnesses by the federal
and state ministries of the interior and justice. The Act to Harmonise Witness Protection in 2001,
was created as the statutory basis for specific witness protection measures, and hence for greater
legal security in this field. The Legislature opted not to limit the area of application to the fields
of crime organized crime and terrorism. The Act to Harmonise Witness Protection contains a
special proportionality clause according to which witness protection measures in accordance
with the Act to Harmonise Witness Protection are ultimately only considered in cases of serious
crime. The 2001 Act was introduced to harmonize legal conditions and criteria for witness
protection at the federal and state levels. In May 2003, the guidelines were aligned with the legal
provisions of that Act and now serve as the implementing provisions of the Act for all witness
protection offices in Germany.

USA

In 1970, the Organized Crime Control Act empowered the United States Attorney General to
provide for the security of witnesses who had agreed to testify truthfully in cases involving
organized crime and other forms of serious crime. Under the Attorney General’s authority, the
Witness Security (WITSEC) Program of the United States ensures the physical security of at-risk
witnesses predominantly through their resettlement to a new, undisclosed place of residence
under a changed name and new identity details. In 1984, after more than a decade of operations,
a number of shortcomings that the WITSEC Program had experienced were addressed by the
Witness Security Reform Act. The issues dealt with under the Act are still considered to lie at the
heart of all witness protection programmes, namely:

(a) Strict admission criteria, including an assessment of the risks that relocated former criminals
may pose to the public;

(b) Creation of a fund to compensate victims of crimes committed by participants after their
admission to the programme;
(c) Signature of a memorandum of understanding outlining the witness’s obligations upon
admission to the programme;

(d) Development of procedures to be followed in case the memorandum is breached by the

participant;

(e) Establishment of procedures for the disclosure of information regarding programme

participants and penalties for the unauthorized disclosure of such information;

(f) Protection of the rights of third parties, especially the honouring of the witness’s debts and
any non-relocated parent’s custody or visitation rights.

For a witness to qualify for the WITSEC Program, the case in question must be extremely
significant, the witness’s testimony must be crucial to the success of the prosecution and there
must be no alternative way of securing the witness’s physical safety. There are also other
conditions, such as the witness’s psychological profile and ability to abide by the rules and
restrictions imposed by the programme. Over the years, eligibility for coverage under the
WITSEC Program has been extended from witnesses to Mafia-style crimes to include witnesses
to other types of organized crime, such as those perpetrated by drug cartels, motorcycle gangs,
prison gangs and violent street gangs.

Q. Short notes: (write Any two) CO

6 a) Plea Bargaining in India and USA NO
d) Judgment under Criminal Trial in India and Germany 2&3

A. PLEA BARGAINING IN INDIA AND USA

Plea Bargaining or also known as plea agreement, plea deal is a form of agreement between the
defence and prosecution wherein the defendant consent to plead guilty to a specific criminal
offence in return for some concession in sentence from prosecutor.

A pre-trial procedure where an agreement is accepted between the accused of an offence and the
prosecutor of the state where the trial judge takes an active participation. Another familiar terms
is Charge Bargaining, where the defendant agrees to plead guilty to a less serious offence, or one
of the several offences, in return for dismissal of other charges.
United States of America

The model of plea bargaining applicable in United States of America is available for all sorts of
crimes. There are no well-developed rules governing the contract of plea bargaining either in
individual states of America or even at the federal level. In other words, there is as such no limit
on any kind of case in which the plea bargain agreement entered into. A plea can be bargained
for the petty offences of minimum violation or offence up to the most serious crimes, including
those for which maximum punishment is death penalty. A guilty plea must be entered into with
the voluntary consent of the accused, the defendant must be aware of the fact that: he is agreeing
to enter a plea bargain, he has agreed to accept the plea agreement the acceptance, the acceptance
is voluntary and with due coercion from prosecution or third party. A plea deal shall be
considered void if the prosecutor promises a deal to the defence and then changing the terms of
the deal after the acceptance by the defendant.

When a guilty plea is to be admitted in court there are some rules specifying the process of
entering the plea and which rights a defendant must waive in order to enter a plea bargain. For
example, the defence must state clearly on the record that they forgo their right to a trial. The
negotiation of plea are conducted on the basis of ethical code of conduct which do not directly
address matter of plea bargaining. Thus prosecutors hold enormous power in the process of plea
bargaining which can lead to dismissal of the whole case, dismissal of a particular charge,
alternate sentence or which may include substantial period of time doing community service.

India

The 2005 amendment of the Criminal Procedure Code introduced provision in Code in regards to
plea deal. Section 265A to 265L were inserted which prescribes the procedure to be followed in
plea bargain and basic provision from application to the offer of plea deal. The activity to move
the legal hardware for arranged pleas is to be taken by the accused person for just those offenses
for which the most extreme punishment does not surpass seven years. The application for request
dealing is to be documented in the court in which such offense is pending for trial. This is the
place where the Indian scheme differs from the American scheme where the application is made
by the public prosecutor and the accused after negotiations between them are finished. An appeal
cannot be filed of the judgment where an application for plea deal has be filed.
  In India, a plea bargain is only available to accused for offences in which punishment is
not exceeding seven years of imprisonment. For serious offences in which punishment is
exceeding seven years of imprisonment or life imprisonment or death penalty plea
bargain is not available. From time to time Central Government can notify the offences
for plea bargain.
 The accused can file an application of plea bargain in court stating the brief facts of the
concerned case including the offence which shall be accompanied by an affidavit
swearing his voluntary steps and that he understands the nature of the plea deal.
 The court will then issue a notice to the investigating officer, public prosecutor, witnesses
of the case and the victim regarding the date for hearing of such application.
 The court is vested with all the powers of bail, trial of offence and other matters relating
to disposal of case which entertaining a plea deal.

The cautious methodology of the legislation has been exposed. Various riders connected to the
model of plea bargaining in India have made it exclusively accessible to the criminals
perpetrating the crime, punishable with imprisonment not surpassing seven years and provided
that the accused should not be adolescent and the crime carried out by him shouldn't be socio
monetary in nature. However, demonstrated compelling idea in the west it has completely
neglected to charm the Indian crowds that can be gathered from the response of judiciary
discussed beneath.

D. JUDGMENT UNDER CRIMINAL TRIAL IN INDIA AND GERMANY

The final decision passed by a court after hearing both the parties is known as judgment. Taking
judgments is critical and for that appropriate authority should be assigned. They form the core
principles of a judicial system and increase the confidence of the public in Judiciary and
litigation. Citizens demand fair and quality judgments in disbursal of cases and thus, an elegantly
composed judgment with the right facts, laws and analysis helps in furtherance of those
demands.

Judgment under CrPC

Section 353 of CrPC defines judgment as a written legal document which helps to resolve the
dispute in a suit and finalizing the rights and liabilities of the individual. Judgment is a final
order, verdict or decision given by the judge or magistrate on the ground of decree. A decree is
an essential piece of the judgment which is given by the judge. It should be precise and clear
containing names of the parties, amount of money, deadline and so on. Judgment is given in each
trial in Criminal Court falling under its jurisdiction. It should be articulated in the open court by
the Presiding authority just after the end of the trial procedure and notice should be served to
each party and to its assigned counsel.

The presiding officer of the court shall take the whole judgment down in short-hand when the
judgment is being delivered, sign the transcript and every page of it as soon as it is made ready in
the Open Court. When the operative part of the judgment or the whole judgment is read out the
presiding officer shall date and sign every age of that judgment in Open Court. Where the
operative part of the judgment is pronounced in the manner specified under the Section then
whole judgment or a copy of it shall be immediately made available to the parties, or to their
pleaders free of cost.

No judgment conveyed by any Criminal Court shall be considered invalid by reason just in the
absence of any party or his pleader on the day or from the spot notified for the delivery of it, or
of any omission to serve, or any deformity in serving the parties or their pleaders, or any of them,
the notice of that day and spot.

Judgment in Germany

The German judiciary does not work under the principle of stare decisis, and the majority of
decisions issued by German courts are just binding on the parties to the proceedings. The solitary
legal decisions that are legally binding on lower courts are those issued by the Federal
Constitutional Court. Decisions issued by the Constitutional Court and the Court of Justice are
the easiest to find. Print reporters are the best sources for more established decisions issued
before the last part of the 1990s. Later decisions might be downloaded from free online case law
databases accessed through the courts' respective websites. Decisions issued by these courts are
also the most liable to be translated into English.
The Federal Court of Justice, also known as the Federal High Court, is the final court of allure on
every single criminal issue. Conventionally, its decisions are not subject to any further audit,
unless they raise issues of constitutional law. The trial will include the examination of evidence,
testimony from experts and witnesses as well as cross-examinations of the various parties. A
case will finish up with closing statements from both the public prosecutor and the defense. The
defendant will be asked to offer a final expression after their counsel has provided their closing
statement. At the conclusion of the trial the judges will set up their judgments which will be
perused out to the court once finished. The judgment will remember the facts of the case as well
as the law in the region and will be the ruling of the court. In the result of the case the judgments
will be written down, signed by the present judges and kept on public record.