Accusatorial System versus Inquisitorial System

Contents

Introduction.................................................................................................................................................4
Adversarial System:....................................................................................................................................5
History.........................................................................................................................................................5
Concept:......................................................................................................................................................6
Basic Tenets of Adversarial System............................................................................................................6
Adversarial System in India.......................................................................................................................10
The system followed in India....................................................................................................................12
Advantages of Adversarial System............................................................................................................13
Disadvantages of Adversarial System.......................................................................................................13
Comparison with Inquisitorial System.......................................................................................................14
Inquisitorial System:..................................................................................................................................16
History:......................................................................................................................................................16
Inquisitorial System...................................................................................................................................18
Basic Tenets of Inquisitorial System.........................................................................................................19
Advantages of Inquisitorial System:..........................................................................................................21
Disadvantages of Inquisitorial System:.....................................................................................................22
Inquisitorial System v. Adversarial System...............................................................................................22
Modern use in France & Germany............................................................................................................28
Criminal justice.........................................................................................................................................28
Administrative Justice:..............................................................................................................................30
Inquisitorial System in Comman Law Countries.......................................................................................30
Provisions reflecting the inquisitorial System in India..............................................................................31
Inherent Powers.........................................................................................................................................31
1
Court’s Power to secure Evidence.............................................................................................................31
Court’s Powers to Regulate the Investigation............................................................................................34
Malimath Committee Suggestion Regarding Inquisitorial System............................................................35
The Need for Reform.................................................................................................................................36
Views of Indian High Courts.....................................................................................................................36
Views of Some State Government.............................................................................................................37
World Scenario..........................................................................................................................................37
Comparative Table of Adversarial &Inquisitorial.......................................................................................38
Conclusion.................................................................................................................................................39
Bibliography...............................................................................................................................................40

2
 Adversarial V. Inquisitorial System

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

The terms ‘adversarial’ and ‘inquisitorial’ derive from the procedures used to
resolve crucially the issues which arise to be determined by litigation under the
criminal and civil laws of those countries. Very broadly speaking, in an
‘adversarial’ system, the parties choose what material is to be placed before the
court or tribunal. In an ‘inquisitorial’ system, the court or tribunal may itself play a
part in investigating the evidence upon which the matter is decided, or in
investigating the ultimate issue.2

‘Inquisitorial’ is also often used popularly in a narrower sense, as referring to a

perception of the role of the Investigating judge or magistrate in France or Italy.
1
Prof. Madhav Prasad Acharya, The Adversarial v. Inquisitorial Models of Justice,Kathmandu School of Law. Article
reprinted from KSL Journal (Vol. 1)

2
David Jackson, “Adversarial and Inquisitorial Systems”, Medico-Legal Society of NSW Inc., Scientific Meeting -
March 2009

3
Sometimes, however, the terms are used more broadly, to refer to the entire legal
system of a country. The two systems are frequently regarded as entirely disparate;
however the practical differences between the systems have diminished over time. It
is unlikely that ‘the twain shall meet’, but their operations today have many
similarities and, in the future, are likely to have more.3

Adversarial System:

History:

The adversary regime, a legacy of Anglo-American legal culture, is splendid in

principle in many respect and is a victory in practice for human rights, viewed
historically with star chamber memory, but is hostile to the actualization of court
justice unless operational innovations to conscientize, sensitize and radicalize
current judicial methodology be creatively and crusadingly undertaken. 4 But some
writers trace the adversarial process to the medieval mode of trial by combat, in
which some litigants, notably women, were allowed a champion to represent them.
The jury in the common law system seems to have fostered the adversarial system,
and there are many today who believe that it remains the best way of providing for
the determination of a disputed issue. On the other hand, the new British Civil
Justice reforms initiated by Lord Woolf (the Civil Procedure Rules or CPR) are
prefaced with a case management system.5

The adversarial system is generally adopted in common law countries. An

exception, for instance in the U.S., may be made for minor violations, such
as traffic offenses & in India the state of Goa and the union territory of Daman and
Diu follow a Civil Law based on Portuguese civil law. The rest of India follows

3
Ibid
4
“A Constitutional Miscellany”, V.R. Krishna Iyer, 2nd Edn. P. 194.
5
http://www.experiencefestival.com/adversarial_system_-_history_of_the_adversarial_process.
4
English common law.6 On the continent of Europe among some civil law systems
(i.e. those deriving from Roman law or the Napoleonic Code), the inquisitorial
system may be used for some types of cases.7

Concept: Adversary system is a legal system where two advocates represent their
parties' positions before an impartial person or group of people, usually
a jury or judge, who attempt to determine the truth of the case. As opposed to that,
the inquisitorial system has a judge (or a group of judges who work together)
whose task is to investigate the case.8

The adversarial system is the two-sided structure under which criminal trial courts
operate that pits the prosecution against the defense. Justice is done when the most
effective adversary is able to convince the judge or jury that his or her perspective
on the case is the correct one. This system relies on the skill of the different
advocates representing their party's positions and not on some neutral party,
usually the judge, trying to ascertain the truth of the case.9

Basic Tenets of Adversarial System:

As an accused is not compelled to give evidence in a criminal adversarial

proceeding, he may not be questioned by prosecutor or judge unless he chooses to
do so. However, should he decide to testify, he is subject to cross-examination and
could be found guilty of perjury. As the election to maintain an accused
person's right to silence prevents any examination or cross-examination of that
person's position, it follows that the decision of counsel as to what evidence will be
called is a crucial tactic in any case in the adversarial system and hence it might be
said that it is a lawyer's manipulation of the truth. Certainly, it requires the skills of
6
http://en.wikipedia.org/wiki/List_of_country_legal_systems
7
http://en.wikipedia.org/wiki/Adversarial_system
8
Ibid

9
Ibid
5
counsel on both sides to be fairly equally pitted and subjected to an impartial
judge.10

By contrast, while defendants in most civil law systems can be compelled to give a
statement, this statement is not subject to cross-examination by the prosecutor and
not given under oath. This allows the defendant to explain his side of the case
without being subject to cross-examination by a skilled opposition. However, this
is mainly because it is not the prosecutor but the judges who question the
defendant. The concept of "cross"-examination is entirely due to adversarial
structure of the common law.11

Judges in an adversarial system are impartial in ensuring the fair play of due
process, or fundamental justice. Such judges decide, often when called upon by
counsel rather than of their own motion, what evidence is to be admitted when
there is a dispute; though in some common law jurisdictions judges play more of a
role in deciding what evidence to admit into the record or reject. At worst,
abusing judicial discretion would actually pave the way to a biased decision
rendering obsolete the judicial process in question—rule of law being illicitly
subordinated by rule of man under such discriminating circumstances.12

The rules of evidence are also developed based upon the system of objections of
adversaries and on what basis it may tend to prejudice the trier of fact which may
be the judge or the jury. In a way the rules of evidence can function to give a judge
limited inquisitorial powers as the judge may exclude evidence he/she believes is
not trustworthy or irrelevant to the legal issue at hand.13

10
http://en.wikipedia.org/wiki/Adversarial_system#Basic_features
11
Ibid
12
Ibid
13
Ibid
6
As said by Judge Megan L.A Brown that “all evidence must be relevant and not
hearsay evidence.”14

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.15

The name "adversarial system" may be misleading in that it implies it is only

within this type of system in which there are opposing prosecution and defense.
This is not the case, and both modern adversarial and inquisitorial systems have the
powers of the state separated between a prosecutor and the judge and allow the
defendant the right to counsel. Indeed, the European Convention on Human Rights
and Fundamental Freedoms in Article 6 requires these features in the legal systems
of its signatory states.16

The right to counsel in criminal trials was initially not accepted in some adversarial
systems. It was believed that the facts should speak for themselves, and that
lawyers would just blur the matters. As a consequence, it was only in 1836 that
England allowed suspects of felonies the right to have legal counsel
(the Prisoners' Counsel Act 1836).17 In the United States, however, personally
retained counsel have had a right to appear in all federal criminal cases since the
adoption of the Constitution and in state cases at least since the end of the Civil
War, although nearly all provided this right in their state constitutions or laws
much earlier. Appointment of counsel for indigent defendants was nearly universal
in federal felony cases, though it varied considerably in state cases. It was not until
1963 that the U.S. Supreme Court declared that legal counsel must be provided at
14
Ibid
15
Ibid
16
Class notes,
17
See the Prisoners' Counsel Act 1836
7
the expense of the state for indigent felony defendants, under the federal Sixth
Amendment, in state courts.18

One of the most significant differences between the adversarial system and the
inquisitorial system occurs when a criminal defendant admits to the crime. In an
adversarial system, there is no more controversy and the case proceeds to
sentencing; though in many jurisdictions the defendant must have allocution of her
or his crime, a false confession will not be accepted even in common law courts.
By contrast, in an inquisitorial system, the fact that the defendant has confessed is
merely one more fact that is entered into evidence, and a confession by the
defendant does not remove the requirement that the prosecution present a full case.
This allows for plea bargaining in adversarial systems in a way that is difficult or
impossible in inquisitional system, and many felony cases in the United States are
handled without trial through such plea bargains.19

Another difference is in the rules of evidence. Because the adversarial system

assumes that the evidence is to be presented to laymen rather than to jurists, the
rules of evidence are considerably stricter. Rules on hearsay are much stricter in
most adversarial systems than in inquisitorial systems; though often lower tribunals
are allowed some flexibility in applying the strict rules of common law evidence
such as in Domestic or in small claims proceedings where the parties are often
unrepresented by lawyers and the judge functions as more of an inquisitor to
protect the interests of children than a neutral arbiter of justice. 20

In some adversarial legislative systems, the court is permitted to

make inferences on an accused's failure to face cross-examination or to answer a
particular question. This obviously limits the usefulness of silence as a tactic by the
18
See Gideon v. Wainwright, 372 U.S. 335 (1963)
19
Supra note 16
20
Supra note 10
8
defense. In England the Criminal Justice and Public Order Act 1994 allowed such
inferences to be made for the first time in England and Wales (it was already
possible in Scotland under the rule of criminative circumstances). This change was
disparaged by critics as an end to the 'right to silence', though in fact an accused
(Kelkar, 2008) (Iyer)still has the right to remain silent and cannot be compelled to
take the stand. In The United States, the Fifth Amendment has been interpreted
to prohibit a jury from drawing a negative inference based on the defendant's
invocation of his right not to testify, and the jury must be so instructed if the
defendant requests.21

Adversarial System in India:

Most modern states are constituted on democratic principles. To ensure that

democracy becomes a reality and liberties of individuals are preserved, they try to
ensure that the principle of separation of powers between the legislature, executive
and the judiciary is not violated. The constitution of India has also enjoined the
state to ensure that the judiciary be separated from the executive, in its directive
principles.22

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

21
Ibid
22
Supra note 1
9
as a protest, to bring about reforms, as done by Gandhi Ji during the freedom
movement.23

The well recognized fundamental principles of criminal jurisprudence

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

The primary responsibility of the State is to maintain law and orders that citizens
can enjoy peace and security. Life and personal liberty being very precious
rights, their protection is guaranteed to the citizens as a fundamental right
under Article 21 of our Constitution. This right is internationally recognized
as a Human Right. Right to property which once had the status of a fundamental
right in our Constitution is now relegated to a constitutional right under Article
300A of the Constitution. Many times deprivation of right to property leads to
invasion of personal liberty. The Stat discharges the obligation to protect
life, liberty and property of the citizens by taking suitable preventive and
punitive measures which also serve the object of preventing private
retribution so essential for maintenance of peace and law and order in the society.
Substantive penal laws are enacted prescribing punishment
for the invasion of the rights. When there is an invasion of these rights of the
citizens it becomes the duty of the State to apprehend the person guilty for such
invasion, subject him to fair trial and if found guilty to punish him. Substantive
penal laws can be effective only when the procedural laws for enforcing them
are efficient. This in essence is the function of the criminal justice system.

23
Malimath committee Report, 2003 ,p 23
10
The system followed in India:

For dispensation of criminal justice is the adversarial system of common law

inherited from the British Colonial Rulers. The accused is presumed to be
innocent and the burden is on the prosecution to prove beyond reasonable
doubt that he is guilty. The accused also enjoys the right to silence and cannot be
compelled to reply. The aim of the Criminal Justice System is to punish the
guilty and protect the innocent. In the adversarial system truth is supposed to
emerge from the respective versions of the facts presented by the prosecution and
the defense before a neutral judge. The judge acts like an umpire to see
whether the prosecution has been able to prove the case beyond reasonable doubt
and gives the benefit of doubt to the accused. It is the parties that determine the
scope of dispute and decide largely, autonomously and in a selective manner on
the evidence that they decide to present to the court. The trial is oral, continuous
and confrontational. The parties use cross-examination of witnesses to
undermine the opposing case and to discover information the other side has not
brought out. The judge in his anxiety to maintain his position of neutrality never
takes any initiative to discover truth. He does not correct the aberrations in the
investigation or in the matter of production of evidence before court. As the
adversarial system does not impose a positive duty on the judge to discover truth
he plays a passive role. The system is heavily loaded in favour of the accused
and is insensitive to the victims’ plight and rights. 24

Advantages of Adversarial System:

(a) It insists upon strict observance of procedural law. Due process of law is
regarded as the most appropriated method to attain justice. Violation of
procedure leads to exclusion of evidence in the court.
24
Ibid
11
(b) The position of the court is regarded as that of an umpire. Both parties
contest in the court. The court is to see whether the game being played before
it is fair and conducive to justice or not.

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

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

(e) Individual's right to privacy is best preserved under it.25

Disadvantages of Adversarial System:

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

(c) The judge in the court as an umpire is a misleading conception. It is

desirable to expect that the judge is there to do justice and that justice is
done by whatever means it is possible.

(d) Contest on technical error in the court is possible. The court is helpless to
correct it.
(e) The police sometime may not be able to find sufficient evidence against
the accused. He cannot expect any help from the accused. This leads to
dropping-out of the case.26

1. Comparison with Inquisitorial System:

25
Supra note 1
26
Ibid
12
In many jurisdictions the approaches of each system are often formal differences in
the way cases are reviewed. It is questionable that the results would be different if
cases were conducted under the differing approaches; in fact no statistics exist that
can show whether or not these systems would come to the same results. However,
these approaches are often a matter of national pride and there are opinions
amongst jurists about the merits of the differing approaches and their drawbacks as
well.

Proponents of the adversarial system often argue that the system is fairer and less
prone to abuse than the inquisitional approach, because it allows less room for the
state to be biased against the defendant. It also allows most private litigants to
settle their disputes in an amicable manner through discovery and pre-trial
settlements in which non-contested facts are agreed upon and not dealt with during
the trial process.27

In addition, adversarial procedure defenders argue that the inquisitorial court

systems are overly institutionalized and removed from the average citizen. The
common law trial lawyer has ample opportunity to uncover the truth in a laboratory
called the courtroom. Most cases that go to trial are carefully prepared through a
discovery process that aids in the review of evidence and testimony before it is
presented to judge or jury. The lawyers involved have a very good idea of the
scope of agreement and disagreement of the issues to present at trial which
develops much in the same way as the role of investigative judges. It has also been
argued that a trial by a jury of one's peers may be more impartial than any
government paid inquisitor and a panel of his peers. In the United States the right

27
Supra note 7
13
to a trial by a jury of one's peers who are common citizens is guaranteed by the
United States Constitution.28

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

The adversarial system has also been attacked for failing to accurately resolve
complex technical issues such as science, technology, or tax or accounting
regulation. In the adversarial system, juries encounter such complex technical
cases for the first time. This would lead to unjust outcomes for one or both of the
litigating parties due to the lack of understanding of the evidence presented. In the
inquisitorial system, the judge, though not an expert in each technical subject,
would have gone through similar tax, forensic, or accounting related issues
countless times, and is thus unlikely to be confused or manipulated. Moreover, the
verdict in an inquisitional case must include written justification by judges. For this
reason, when new evidence emerges, the defense and/or the prosecutor can make
an appeal on the basis that the verdict was incorrectly reasoned. On the other hand,

28
Ibid
14
in an adversarial system, neither defense nor prosecutor knows the actual
discussion which took place and the jury is sworn to secrecy. Therefore, the appeal
once conviction occurs must be made on the basis that contest between the defense
and the prosecutor was not fair, which from the perspective of an inquisitional
system, is not same as the matter of truth.29

Inquisitorial System:

History:

Until the Medieval inquisition in the 12th century, the legal systems used in
medieval Europe generally relied on the adversarial system to determine whether
someone should be tried and whether that person is guilty or innocent. Under this
system, unless people were caught in the act of committing crimes, they could not
be tried for them until they had been formally accused, either by the voluntary
accusations of a sufficient number of witnesses or by an inquest (an early form
of grand jury) convened specifically for that purpose. A weakness of this system
was that because it relied on the voluntary accusations of witnesses, and because
the penalties for making a false accusation were severe, would-be witnesses could
be hesitant to actually make their accusations to the court, for fear of implicating
themselves. Because of the difficulties in deciding cases, procedures such
as ordeal or combat were accepted, though it is now generally agreed that these
procedures are not acceptable ways of finding truth or settling a dispute.30

Beginning in 1198, Pope Innocent III issued a series of decretals that reformed the
ecclesiastical court system. Under the new processus per
inquisitionem (inquisitional procedure) an ecclesiastical magistrate no longer
29
Ibid
30
http://en.wikipedia.org/wiki/Inquisitorial_system
15
required a formal accusation to summon and try a defendant. Instead,
an ecclesiastical court could summon and interrogate witnesses of its own
initiative, and if the (possibly secret) testimony of those witnesses accused a person
of a crime, that person could then be summoned and tried. In 1215, the Fourth
Council of the Lateran affirmed the use of the inquisitional system. The council
also forbade clergy from conducting trials by ordeal or combat. As a result, in parts
of continental Europe, the ecclesiastical courts operating under the inquisitional
procedure became the dominant method by which disputes were adjudicated. In
France, the parliaments — lay courts — employed inquisitorial proceedings.

In England, however, King Henry II had established separate secular courts

during the 1160s. While the ecclesiastical courts of England, like those on the
continent, adopted the inquisitional system, the secular common courts continued
to operate under the adversarial system. The adversarial principle that a person
could not be tried until formally accused continued to apply for most criminal
cases. In 1215 this principle became enshrined as article 38 of the Magna Carta:
"No bailiff for the future shall, upon his own unsupported complaint, put anyone to
his law, without credible witnesses brought for this purposes."31

In the development of modern legal institutions which occurred in the 19th

century, for the most part, most jurisdictions did not only codify their private
law and criminal law, but the rules of civil Procedure were reviewed
and codified as well. It was through this movement that the role of an inquisitorial
system became enshrined in most European civilian legal systems. However, there
exist significant differences of operating methods and procedures between 18th
century ancien régime courts and 19th century courts; in particular, limits on the

31
Ibid
16
powers of investigators were typically added, as well as increased rights of the
defense.32

It would be too much of a generalization to state that the civil law is purely
inquisitorial and the common law adversarial. Indeed the ancient
Roman custom of arbitration has now been adapted in many common law
jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as
those in Scotland, Quebec and Louisiana, while the substantive law is civil in
nature and evolution, the procedural codes that have developed over the last
several hundred years are based upon the English adversarial system.33

Inquisitorial System:

The inquisitorial model of justice relates basically to Romano Germanic System of

Law, which is also known as civil law system or continental law system. It aims to
attain justice with the composite effort of the prosecutor, the police, the defense
lawyer and the court. If the purpose of justice is served minor error in the procedure
is ignored. The court can play active role in procuring evidence, in the investigation
of the case and the examination of the witness. The accused must help to the
prosecutor and the court to attain the justice. Since the court itself is active to secure
justice, legal representation from the side of accused is not regarded indispensable.
This system has the following advantages.34

An inquisitorial system is a legal system where the court or a part of the court is
actively involved in investigating the facts of the case, as opposed to an adversarial
system where the role of the court is primarily that of an impartial referee between
the prosecution and the defense. Inquisitorial systems are used in some countries
with civil legal systems as opposed to common law systems. Also countries using
32
Ibid
33
Ibid
34
Supra note 1
17
common law, including the United States, may use an inquisitorial system for
summary hearings in the case of misdemeanors such as minor traffic violations. In
fact, the distinction between an adversarial and inquisitorial system is theoretically
unrelated to the distinction between a civil legal and common law system. Some
legal scholars consider "inquisitorial" misleading, and prefer the word "no
adversarial”. The function is often vested in the office of public procurator, as in
many communist or ex-communist states such as Russia, China, and Ukraine, in
addition to non-communist jurisdictions such as Japan and Scotland.35

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

questions of substantive law; that is, it determines how criminal enquiries and trials
are conducted, not the kind of crimes for which one can be prosecuted, nor the
sentences that they carry. It is most readily used in some civil legal systems.
However, some jurists do not recognize this dichotomy and see procedure and
substantive legal relationships as being interconnected and part of a theory of
justice as applied differently in various legal cultures.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by
questioning witnesses even in adversarial proceedings. The rules of admissibility
of evidence may also allow the judge to act more like an inquisitor than an arbiter
of justice.36

Basic Tenets of Inquisitorial System:

 In the inquisitorial system, power to investigate offences rests primary with

the judicial police officers (Police/ Judiciare). They investigate and draw the
documents on the basis of their investigation. The Judicial police officer has
to notify in writing of every offence which he has taken notice of and

35
http://en.wikipedia.org/wiki/Inquisitorial_system
36
Ibid
18
 submit the dossier prepared after investigation, to the concerned prosecutor.
If the prosecutor finds that no case is made out, he can close the case. If,
however he feels that further investigation is called for, he can instruct the
judicial police to undertake further investigation. The judicial police are
required to gather evidence for and against the accused in a neutral and
objective manner as it is their duty to assist the investigation and the
prosecution in discovering truth. Exclusionary rules of
evidence hardly exist. Hearsay rules are unknown in this System. If
the prosecutor feels that the case involves serious offences or offences of
complex nature or politically sensitive matters, he can move the judge of
instructions to take over the responsibility of supervising the investigation of
such cases.37
 To enable the Judge of instructions to properly investigate the case, he is
empowered to issue warrants, direct search, arrest the accused and examine
witnesses. The accused has the right to be heard and to engage a counsel in
the investigation proceedings before the judge of instructions and to
make suggestions in regard to proper investigation of the case. It is the
duty of the judge of instructions to collect evidence for and against the
accused, prepare a dossier and then forward it to the trial judge. The
accused is presumed to be innocent and it is the responsibility of the
judge to discover the truth. The statements of witnesses recorded during
investigation by the judge of instructions are admissible and form the
basis for the prosecution case during final trial. Before the trial judge
the accused and the victim are entitled to participate in the hearing.
However the role of the parties is restricted to suggesting the questions
that may be put to the witnesses. It is the Judge who puts the
37
Supra note 23,p 25
19
 questions to the witnesses and there is no cross-examination as such.
Evidence regarding character and antecedents of the accused such as
previous conduct or convictions are relevant for proving the guilt or
innocence of the accused.
 The standard of proof required is the inner satisfaction or conviction of the
Judge and not proof beyond reasonable doubt as in the Adversarial System.
 Another important feature of the Inquisitorial System is that in respect of
serious and complex offences investigation is done under the supervision
of an independent judicial officer__ the Judge of Instructions__ who for
the purpose of discovering truth collects evidence for and against the
accused.
 Another importance features of Inquisitorial System is that in respect
of serious and complex offences investigation is done under the
supervision of an independent judicial officer__ the Judge of
Instructions__ who for the purpose of discovering truth collects
evidence for and against the accused.38

Advantages of Inquisitorial System:

a) The court plays substantive role in the trial to secure justice.

b) Minor error in the procedure is ignored, if the purpose of justice is
solved. Procedure is not held vital, ultimate justice is regarded as the
goal.
c) All the component of criminal justice system, i.e. the police, the
prosecutor, the defense lawyer, the court and the accused must help to
secure justice. So, the accused has no right to silence.

38
Ibid
20
 d) Any distortion of evidence, dubious practice followed by the accused
or by the lawyers can be easily detected with the effort of the court.39

Disadvantages of Inquisitorial System:

a) Participation of the court in the inquisition of the case may lead it to biased
attitude.
b) Right to privacy of the accused is denied and that the accused is
exposed to express everything which he need not express keeping in
view of the merit of the case.
c) The prosecutor or the police having separate law to deal with their
conduct may misuse their power and is likely to exceed their
authority, which they are not entitled to.
d) Supremacy of law and equal treatment of the law for all segments of the
society is not entertained.40

Inquisitorial System v. Adversarial System

 An inquisitorial judge is like a policeman with the task of catching a thief.
Because of the compulsions to perform by catching the thief at any cost, the
police may catch hold of some innocent passes-by, on the slightest suspicion
and brand him a thief, if only to get relief from the pressure to get results and
please his superiors. That is why the confessions before the police are not
admissible in evidence and not because the police are inherently bad and
judges are inherently good. That is why when a judge is appointed to head a
commission of inquiry he becomes an investigator. He can at the end only
submit a report of his enquiry and not pronounce judgment, though he may
39
Supra note 1
40
Supra note 1
21
 be a judge of the Supreme Court. Basing on the report prosecution is
launched before the magistrate or a session’s judge, who should adopt the
adversarial approach and ultimately pronounce judgment. If the magistrate
acts like an investigator by adopting inquisitorial approach, the purpose of
trial is defeated, as there would be two investigations, one by the Supreme
Court judge and another by the magistrate and not impartial trial. 41
 Judges with inquisitorial tendencies [unfortunately most judges are of this
type] have a strong tendency to reach a conclusion at an early stage and to
adhere to the conclusion in the face of conflicting considerations later
evolved. In the language of the committee of the American Bar Association,
"what generally occurs in practice is that at some early stage a familiar
pattern will seem to emerge from the evidence; an accustomed label is
waiting for the case and without awaiting further proofs this label is
promptly assigned to it. It is a mistake to suppose that this premature
cataloguing must necessarily result from impatience, prejudice or mental
sloth. Often it proceeds from a very understandable desire to bring the
hearing in to some order and coherence, for without some tentative theory of
the case there is no standard of relevance by which testimony maybe
measured. But what starts as a preliminary diagnosis designed to direct the
inquiry will quickly and imperceptibly, become a fixed conclusion, as all
that confirms the diagnosis makes a strong imprint on the mind, while all
that runs counter to it is received with diverted attention. An adversarial
presentation seems the only effective means for combating this natural
human tendency to judge too swiftly in terms of the familiar that which is
not yet fully known.42”

41
http://legal-articles.deysot.com
42
[Extracted from LAW -Voice of America lectures p. 102.]
22
  Inquisitorial judges are in general blissfully ignorant of the fact that truth is
relative to the Observer. They behave like bureaucrats in disguise. They
mistrust the caliber or honesty of advocates and unnecessarily study the
entire Records of the preceding, from the pleadings to evidence and all the
documents themselves. All this adds to the delay in disposal of cases. A
strictly adversarial judge should not read the record before hearing the
arguments. Even after the arguments are advanced, he should look into the
records only to verify the disputed facts and not the whole record, and
quickly pronounce judgment. Suppose a suit based on a promissory note is
being argued. The plaintiff’s advocate argues that his witnesses have
consistently spoken about the due execution of the promissory note. The
defendant's advocate does not contradict this or bring out the inconsistencies
or deficiencies of the plaintiff’s witnesses. The judge need not and I daresay,
should not read the entire evidence led, by the plaintiff. He can straight a
way pronounce judgment and write in his judgment that since the
defendant's counsel did not bring out the inconsistencies in the plaintiff's
evidence he has concluded that the execution of the promissory note is
proved. That is the reason why Order 20 Rule 1 of the Code of Civil
Procedure enjoins that judgment shall be pronounced at once, after the
arguments are concluded. If he commits a grave mistake there is the
mechanism of review provided under or. 47 and section 151 CPC.43
 A judge with inquisitorial mind develops fatigue very quickly due to over
work. This will have adverse effect upon his appreciation of the finer points
of law and fact put forth by the contestants. He should remember that it is
the duty of the advocates appearing in the matter to go through the entire

43
Civil Procedure Code, 1908.
23
 record, digest it and project their respective versions. Advocates have to deal
only with their respective briefs where as a judge has to deal with the
workload of the entire court. Just as a driver of a vehicle should guard
himself from being fatigued to avoid errors of judgment resulting in serious
accidents, judges also must keep their minds reasonably fresh to avoid
misjudgments and miscarriage of justice. If a particular advocate is
inefficient, the judge should not try to go to the rescue of the party by
stepping into the shoes of the deficient advocate. This will encourage or
compel litigants to engage only competent advocates.44
 Inquisitorial attitude of judges, when they preside over adversarial courts, is
not compatible with democratic ideals and dignity of the individual. An
inquisitorial Judge is apt to think "it is my responsibility to know the truth –
I will know it by my own effort and initiative. I will dole out justice to you
the litigant - you meekly take whatever I give “, whereas an adversarial
judge would be less egoistic. His approach would be "I am only a referee in
a match. The laws are already made by the legislature. You the citizens have
entered into deals as permitted by those laws. You have approached me to
enforce your rights. You are the first judges in the sense that you first decide
that you have been wronged and approach your lawyers to work out the
details of your case. Your lawyers are the boxers and I am only an umpire ".
Rule of law is described as a “leave to live without anyone’s leave”, which
includes the leave of the judges too. This is the only way to empower the
citizen instead of treating him as a humble recipient of benevolence by the
authorities, whether of the executive variety or the judicial clan. . In any
game, players can improve their standard if they are free to concentrate on
the game instead of being at the mercy of the referee
44
Supra note 41
24
  An inquisitorial judge is a glorified policeman. A policeman takes the
trouble of visiting the scene of occurrence and catches the suspected
criminal at considerable personal risk to find out the truth, whereas and
inquisitorial Judge attempts to play the policeman when comfortably seated
in his court.
 Inquisitorial judges take the litigating parties by surprise by coming forward
with their own hypothesis, which is not put forth by either of the parties. By
their propensity to take initiative, they encroach upon the jurisdiction of the
executive and thus violate the principle of separation of powers. On the other
hand, adversarial judges fairly reopen the arguments whenever a new point
of law or fact occurs in their minds, give opportunities to both the counsel to
argue on those points and then only give a decision. They never shock the
parties by surprising them. They never hit their ships with torpedoes of their
equities or notions of `dharma45`
 When Bill Clinton was asked to address the Russians and suggest tips to
develop their economy, he is reported to have said that apart from natural
resources and technical manpower, a country needs a legal system that
enforcers the laws consistently, so that entrepreneurs are sure that the
contracts they enter into can be enforced with certainty. Lawyers as social
engineers, play a vital role in such a system only when the courts are
consistent and predictable. According to Justice Oliver Wendell Holmes
"law is a prediction of what the courts will decide". Just as an electrical
engineer designs his circuits based on the predictable behavior of electrical
power and thereby ensures that the devices and equipment designed by him
give the expected result to the society, a lawyer, as a social engineer, designs
his plaints, complaints, petitions, written statements etc based on law which
45
Ibid
25
 is the predictable exercise of judicial power. According to Mr.Justice
Rajendra Babu of the Supreme Court, impartial, timely and predictable
judiciaries stimulate investment, efficiency and technological progress only
an adversarial system can ensure such predictability and consistency.
Otherwise, Mr. Palkhivala's lament that our courts of law are “casinos and
not cathedrals" rings true.46
 Even "judicial activism" is possible within the adversarial framework. All
the sensational judgments rendered by the Supreme Court during the recent
phase of judicial activism were made possible because of the innovative and
ingenious stands taken by their respective disputants within the
constitutional framework. The judges merely put their stamp of approval by
mustering enough courage, while the credit for such innovation must go to
the advocates whose arguments were accept.47

Modern use in France & Germany

Criminal justice

The main feature of the inquisitorial system in criminal justice in France and other
countries functioning along the same lines is the function of the examining or
investigating judge (juge d'instruction). The examining judge conducts
investigations into serious crimes or complex enquiries. As members of the
judiciary, they are independent and outside the province of the executive branch,
and therefore separate from the Office of Public Prosecutions which is supervised
by the Minister of Justice.
46
See THE HINDU DT.11-4-04 PAGE 17
47
Supra note 41
26
Despite high media attention and frequent TV portrayals, examining judges are
actually active in only a small minority of cases. In 2005, there were 1.1 million
criminal rulings in France, while only 33,000 new cases were investigated by
judges.The vast majority of cases are therefore investigated directly by law
enforcement agencies (police, gendarmerie) under the supervision of the Office of
Public Prosecutions (procureurs).

The judge questions witnesses, interrogates suspects, and orders searches for other
investigations. The examining judge's goal is not to prosecute the accused, but to
gather facts, and as such their duty is to look for any and all evidence (à charge et
à décharge), incriminating or exculpatory. Both the prosecution and
the defense may request the judge to act and may appeal the judge's decisions
before an appellate court. The scope of the inquiry is limited by the mandate given
by the prosecutor's office: the examining judge cannot open a criminal
investigation sua sponte.48

In the past the examining judge could order committal of the accused, this power
being subject to appeal. However, this is no longer the case, and other judges have
to approve a committal order.

If the examining judge decides there is a valid case against a certain suspect, the
accused is bound over for an adversarial trial by jury. The examining judge does
not sit on the trial court vested with trying the case and is in fact prohibited from
sitting for future cases involving the same defendant. The case is tried before the
court in a manner similar to that of adversarial courts: the prosecution (and on
occasion a plaintiff) move for the conviction of accused criminals, the defense
rebuts their claims, and the judge and jury draw their conclusions from the
evidence presented at trial.

48
Supra note 35
27
Examining judges are used only for severe crimes, e.g., murder and rape, as well as
for moderate crimes, such as embezzlement, misuse of public funds,
and corruption, when the case has a certain complexity.

As a result of judicial investigation and defendants being able to have judicial

proceedings dismissed on procedural grounds during the examining phase, cases
where the evidence is weak tend not to reach the trial phase. Conversely, the
guilty plea and plea bargaining were until recently unknown to French law, and
now it only applies to crimes for which the maximum sentence is one year
imprisonment. Therefore, most cases go to trial, including cases where the
prosecution is almost sure to win a conviction, whereas, in countries such as the
United States, these would be settled by plea bargain.49

Administrative Justice:

In administrative courts such as the Council of State, litigation proceedings are

markedly more inquisitorial. Most of the procedure is conducted in writing; the
plaintiff writes to the court, which asks explanations from the administration or
public service concerned; when answered, the court may then ask further detail
from the plaintiff, etc. When the case is sufficiently complete, the lawsuit opens in
court; however, the parties are not even required to attend the court appearance.
This method reflects the fact that administrative lawsuits are for the most part
about matters of formal procedure and technicalities.50

Inquisitorial System in Comman Law Countries:

Administrative proceedings in many common law jurisdictions may be similar to

their civil law counterparts and be conducted on a more inquisitorial model. A

49
Ibid
50
Supra note 35
28
good example are the many administrative boards such as the New York City
Traffic Violations Bureau, a minor tribunal that deals with traffic violations where
the adjudicator also functions as the prosecutor and questions the witnesses; he or
she also renders judgment and sets the fine to be paid. These types of tribunals or
boards can be found in most modern democracies. They function as an expedited
form of justice where the state agents conduct an initial investigation and the
adjudicator's job is to confirm these preliminary findings through a simplified form
of procedure that grants some basic amount of due process or fundamental
justice in which the accused party has an opportunity to place his or her objections
on the record.51

Provisions reflecting the inquisitorial System in India:

Inherent Powers:

The Code which speaks in Section 482 of the inherent power of the High Court says
that nothing in the Code shall be deemed to limit or affect the inherent powers of
the High Court to make such orders as may be necessary to give affect to any order
under the Code or to prevent the abuse of the process of
any Court or otherwise to secure the ends of justice. In essence it speaks of the
residuary power to do justice. As all the Criminal Courts are courts of justice there
is no good reason to limit the exercise of inherent powers to the High Court.
Limited conferring of inherent powers to the High Court has contributed
to unnecessary litigation and delay. The inherent powers in civil matters are
conferred by Section 151 of the Civil Procedure Code on all courts and are not
51
Ibid
29
limited to the High Court. Now that every criminal court is enjoined the duty to
seek truth there is no good reason why it should not be empowered
to exercise inherent powers for seeking truth or to prevent abuse of the process
of any court or otherwise to secure the ends of justice. Inherent powers can be
exercised in the interest of justice, in the absence of a statutory provision to meet
the situation. The lower courts can be trusted to exercise inherent powers in
accordance with settled principles.52

The Law Commission in its 14th report (Para’s 828 & 830) has also
recommended conferment of inherent power but on the sessions courts. There is
no good reason to deny inherent powers to other subordinate criminal courts.53

Court’s Power to secure Evidence:

 Section 165 of the Evidence Act, invests the Court with the power
to ask any question it pleases, in any form, at any time, of any witness, or the
parties about any fact, relevant or irrelevant, and also to order the production
of any document or thing. This power can be exercised by the Court, “in
order to discover or to obtain proper proof of relevant facts”. This Section
does not expressly confer a power on the Court to summon witnesses, to give
evidence. It can summon a witness only to produce any document or a thing.
 Wide power has been conferred on the court by Section 311 of the Code to
summon material witnesses or examine the persons present in the Court.
It reads:
 Any court may, at any stage of any inquiry, trial or other proceeding under
this Code, summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall and re-examine any
person already examined; and the court shall summon and examine or recall
52
Supra note 23,p 25
53
Law Commission in its 14th report
30
 and re-examine any such person if his evidence appears to it to be essential
to the just decision of the case.
 First part of Section 311 gives discretion to the court to summon
any person as a witness; the second part makes it obligatory to examine
witness if it is essential for the just decision of the case. It does not say that
the power should be exercised when it appears to the court that it is necessary
to discover truth. The requirement of “just decision of the case” occurring in
the latter part of the Section is not synonymous with the duty to discover
truth.54
 The provisions discussed above do not cast a positive duty on the court to
exercise the power to summon witnesses “in order to seek the truth” but only
for “proof of relevant facts” or for “just decision” in the case. In practice it is
seen that when the witnesses are examined the courts rarely ask any questions
to the witnesses, fearing that their neutrality may be doubted.
 Witnesses examined at the instance of the court are liable to be cross-
examined by the rival parties to the proceedings. Aggrieved parties
often challenge such intervention on grounds of bias and denial of fair
trial. The trend of judicial decisions is also that this power should be
exercised with utmost circumspection and not to supplement the
evidence for the prosecution or to fill up the gaps in the prosecution
case. Thus the power under Section 311 is virtually rendered nugatory.
 Furthermore, the other provisions in the Code also appear to curtail this power,
may be unintentional. So far as summons trial procedure is concerned
Section 255 entitles the court to take into account in addition to the
evidence produced by the prosecution, such further evidence as the court on
its own motion causes to be produced. But there is no similar provision in
54
Supra note 23, p 27
31
 respect of warrant (Section 238 to 250) and sessions (Section 225 to 232)
trials. The court can consider only the evidence produced by the prosecution
and not other evidence collected by invoking courts’ power under Section 311.
These restrictions should be removed and a provision similar to Section 255
should be made in respect of warrant and session’s trial procedure also.
 It is therefore to amend Section 311 imposing a duty on every court to suo
motu cause production of evidence for the purpose of discovering
truth and requiring every court to take into account the evidence so
collected in addition to the evidence produced by the Prosecution.55

Court’s Powers to Regulate the Investigation:

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

“Nothing in this section shall be deemed to preclude further investigation in

respect of an offence after a report under sub-section (2) has been forwarded to the
Magistrate and, where upon such investigation, the officer-in-charge of the police
station obtains further evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such evidence in the form
prescribed; and the provisions of sub-sections(2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in relation to a report
forwarded under sub-section(2).” 56
55
Supra note 54, p 27
56
Ibid
32
This provision was invoked by the Supreme Court In Kashmiri Devi vs. Delhi
Administration and others and the relevant observations are as follows57:

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

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

In Sakiri Basu V. State of U.P. & OthersSpeaking through Markandey Katju J.,
Sec.156(3) provides for a check by the Magistrate on the Police performing its duty

57
AIR 1988 SC 1323
33
under Chapter XII of Cr.P.C. in cases where the Magistrate finds the Police has not
done its duty of investigating at all, or has not done it satisfactorily, he can issue a
direction to the Police to do the investigation properly, and can monitor the same.58

Malimath Committee Suggestion Regarding Inquisitorial System:

Over the years taking advantage of several lacunae in the adversarial system large
number of criminals are escaping convictions. This has seriously eroded the
confidence of the people in the efficacy of the System. Therefore it is necessary to
examine how to plug the escape routes and to block the possible new ones.59
There are two major systems in the world. There are adversarial systems which
have borrowed from the inquisitorial system and vice versa. One school of thought is
that the Inquisitorial system followed in France, Germany, Italy and other
Continental countries is more efficient and therefore a better alternative to the
adversarial system. This takes us to the examination of the distinguishing
features of the inquisitorial system. 60

The Need for Reform:

The Adversarial System lacks dynamism because it has no lofty ideal to

inspire. It has not been entrusted with a positive duty to discover truth as in the
Inquisitorial System. When the investigation is perfunctory or ineffective,
Judges seldom take any initiative to remedy the situation. During the trial, the
Judges do not bother if relevant evidence is not produced and plays a passive
role as he has no duty to search for truth. As the prosecution has to prove the
case beyond reasonable doubt, the system appears to be skewed in favour of the

58
(2008) 2 SCC 409
59
Supra note 23, p 27
60
Ibid
34
accused. It is therefore necessary to strengthen the Adversarial System by
adopting with suitable modifications some of the good and useful features of
the Inquisitorial System.61

Views of Indian High Courts:

The High Courts of Gauhati, Gujarat, Jammu & Kashmir, Karnataka, Patna,
Rajasthan and Sikkim have not expressed any views. The High Courts of
Allahabad, Andhra Pradesh, Kerala, and Punjab & Haryana have said that the
present system is satisfactory. The High Courts of Jharkhand and Uttaranchal
have opined that the Adversarial System has failed. The High Courts of
Bombay, Chhattisgarh, Delhi, Himachal Pradesh, Kolkata, Madras, Madhya
Pradesh and Orissa have expressed that the present system is not satisfactory.
Some of them say that there is scope for improving the Adversarial System by
adopting some of the useful features of the Inquisitorial System.

Views of Some State Government:

Governments of Arunachal Pradesh, Karnataka, Kerala, Madhya

Pradesh, Haryana, Himachal Pradesh and Jammu & Kashmir are in favour of
continuing the Adversarial System followed in India. Other Governments have
not responded. 62

World Scenario:
So far as world scenario is concerned it is enough to quote Prof. Abraham S.
Goldstein:

61
Supra note, p 28
62
ibid
35
 “It is becoming increasingly apparent to criminal justice scholars that single
theory models of criminal procedure whether termed inquisitorial or
adversarial - are being stretched beyond their capacity by the phenomena they
are designed to control. Virtually everywhere, formal systems of charge and
adjudication cannot possibly be enforced in accordance with the premises
underlying them. There are simply too many offenses, too many offenders and
too few resources to deal with them all. One result has been a steady movement
towards a convergence of legal systems - towards borrowing from others those
institutions and practices that offer some home of relief”. 63

Comparative Table of Adversarial &Inquisitorial

Features Adversary System Inquisitorial System
 Independent third party  Takes a more active role in the case
 Decides questions of law and  Determines which evidence and
Role of the Judge procedure witnesses are to be examined
 Only asks questions for  Questions witnesses
clarification

 Represents parties interests  Not as much need for legal

 Prepare and presents the representation
Role of Legal parties case  May ask questions
Representation  Examination of witnesses after the
judge has
completed his/her
questioning.
 All evidence, except witness  All evidence and statements are
Collection of statements, are collected by the collected
evidence parties and kept by the examining judge

Witnesses  Witnesses must answer the  Witnesses are

questions put to them by the allowed to give their
legal representative version of what

63
Israel Law Review, Vol.41-1997, Prof. Abraham S. Goldstein

36
 happened without
interruption
Prior criminal  Inadmissible  Admissible
record
 Strict rules apply  No strict rules
Rules of Evidence  Mainly relies on oral evidence  Relies heavily on
written statements
 Responsible for the  Parties respond to the direction of
preparation and presentation the court in the presentations of their
for their case. case.
Role of parties
 Determine the issue that are
disputed and which witnesses
are to be called.

Conclusion:
In evaluating the two systems we should not forget the basic requirement of
fairness of trial. In the inquisitorial system the Judge of instructions combines to
some extent the roles of the investigator and the Judge. Defense lacks adequate
opportunity to test the evidence of the prosecution by cross-examination. The
defense has only a limited right of suggesting questions to the Judge. It is left to the
discretion of the Judge whether to accept the suggestions or not. Thus, the accused
does not get a fair opportunity of testing the evidence tendered against him which
is one of the essential requirements of fair trial.
In the Inquisitorial System followed in France the positions of
Magistrates and Prosecutors are inter- changeable. A person appointed as a
Magistrate for one term may be appointed as a Prosecutor for the next
term. It is by common selection that Prosecutors and Magistrates are selected
and are subjected to a common training programme. It is one of the cardinal
principles of justice that justice should not only be done but should appear to be
done. The Judge who had functioned earlier as a prosecutor is likely to carry

37
unconsciously a bias in favour of the prosecution. At any rate it is likely to
cause an apprehension in the mind of the accused that he may not get a fair trial at
the hands of such a Judge. In the Adversarial System, fairness of trial is adequately
assured by the Judge maintaining a position of neutrality and the parties
getting full opportunity of adducing evidence and cross-examining the witnesses.
Thus it is seen that fairness of trial is better assured in the Adversarial System.

38
Bibliography
Iyer, V. K. (n.d.). Constitutional Miscellany. Eastern Book Company.

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

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

39
40