DRIFT OR SHIFT? FROM ADVERSARIAL TO INQUISITORIAL SYSTEM OF CRIMINAL JUSTICE IN INDIA (By- Charu Atri)
DRIFT OR SHIFT? FROM ADVERSARIAL TO INQUISITORIAL
SYSTEM OF CRIMINAL JUSTICE IN INDIA
Authored
By- Charu Atri
Introduction
“In
the adversary system of trial, the judges unfortunately assume the role of
referee or umpire, and allow the trial to develop in a contest between the
prosecution and the defence with the inevitable distortions flowing from
combative and comparative elements entering in the trial procedure. The judge
must cease to be a spectator and mere recording machine if a criminal court is
meant to be dispensing justice. The judge must become a participator in the
trial by putting questions to the witnesses to ascertain the truth”.
The
above remarks were made by the Supreme Court of India in the case of Ram Chander
v. State of Haryana[1].
In number of cases the role of a judge being more than a mere spectator has
been highlighted. The ultimate goal of any country’s criminal justice system is
to protect the life and property of its citizen and punish those who invade
these rights through a fair procedure. The methods to obtain this goal could be
different in different countries. Primarily there are two models of criminal
justice system one is the Adversarial criminal justice system and the other is
the Inquisitorial criminal justice system.
Difference
Between Adversarial And Inquisitorial Criminal Justice System
The
differences in these two models can be found with respect to every functionary
of a criminal justice system. From police, courts, judges to counsels, victim
and accused. In an Inquisitorial criminal justice system the court and the
public prosecutor has a full control over the investigation and presentation of
the case in a trial. The court plays an active role in procurement of the
evidences, investigation of the case and examination of the witnesses. The
judge himself investigates the complaint. Accused is presumed to be innocent
according to a maxim “in dubio pro reo” i.e. all doubts are resolved in favor
of the accused and it is the duty of the judge to discover the truth. The
exclusionary rules do not exist in this justice system and nor the hearsay
rule. Even the statements of the witnesses made during the investigation
process are admissible in the trial. One more distinguishing feature of
inquisitorial justice system is that here the questions are asked from the
witnesses by the judge. Also, there is no formal cross examination. Here the
court plays an affirmative role and is not like an umpire or mere spectator.
And therefore it is the satisfaction of the judge plays a very important role
though the standard of proof is beyond reasonable doubt here also just like in
the adversarial system. The victim also plays a vital role in this system. He
helps the court in finding the truth by suggesting the questions that might be
asked from the witnesses by the court he is also permitted to ask the questions.
And this therefore shows that victim is a full party. The judge has a vast power to obtain and
access the evidences. This system is also known as Romano Germanic System of
Law and is common in European countries like France, Italy and Germany.
On
the other hand, in Adversarial criminal justice system both the parties i.e.
defence and prosecution have to present their evidences before a neutral judge,
and the facts that are culled out from those evidences establish the truth. One
could say that the structure is so to just reach at a settlement between the
two contesting parties and not to investigate into the truth. The role of the judge is that of a referee
only, unlike the inquisitorial system, here the judge is passive who leaves the
entire duty of presenting the case on the prosecution. The court is heavily
dependent on the evidences produced in the trial by the parties. Also, as the
offence is deemed to be taken place against the society as a whole therefore
the contest is also between the accused and the State and therefore the victim
is sort of excluded unlike in the inquisitorial system. The parties cross
examine each other to impeach the credibility of the evidence produced by them
(whether oral or documentary). Also, the police have a lot of power in this
system unlike the inquisitorial system where the police work under the
prosecution as their agents.
The
difference in the approaches of these two systems is mainly due to the very
fact that in adversarial system, the truth is supposed to be emerged by the two
contesting sides having equal rights and resources. Here the justice is
“procedural justice” i.e. where the procedure is laid down for justice through
a fair procedure where both parties are on equal platform competing before a
neutral judge/umpire. But in the inquisitorial criminal justice system more
emphasis is on the truth finding by the judge. So, one can say that where
adversarial system is party oriented the inquisitorial system is judge
oriented.
Indian
Criminal Justice System: Primarily Adversarial System
Indian
criminal system is mainly based on the adversarial system which was taken from
the British model. The Criminal Procedure Code, 1973 (hereinafter referred to
as Code) had adopted the adversary system based on the accusatorial method. If
we see the provisions of the Code, the judge has majorly a non interventionist
role in the trial. The judge has to just ensure by being a mere spectator
whether the evidences that have been produced are relevant for the case in hand
or not and if they are relevant whether they are admissible or not and whether
the guilt of the accused is established beyond any reasonable doubt by the
prosecution or not. The judge has less freedom as he has to abide by the
provisions of the Indian Evidence Act, 1872 and the Criminal Procedure Code,
1973 during the whole trial. The relevancy of a fact depends from the section 6
to 55 of the Evidence Act, whereas the facts that are relevant are only
admissible (except few exemptions as under section 65B and 155 of the Act)
under section 5 of the Evidence Act. Also the mode of proof is also provided in
the Evidence Act, which leaves almost no choice with the judges. But this is
not the complete picture. As discussed through the following cases and
legislative provisions.
The
Malimath Committee[2],
had showed its concern over the pendency of criminal cases and the low
conviction rate due to the flaws in Indian criminal justice system which is
time taking and is full of unnecessary procedures. The committee had observed that
as the judges play a neutral role in the trial, the whole system inevitably
inclines towards the accused. The Supreme Court has also on multiple occasions
exhibited its concern over this problem. While making a remark about the criminal justice
system of India and the right to fair trial, the Supreme Court in the case of
Zahira Habibulla H. Sheikh v. State of Gujarat[3], had said that “the main
purpose of the judicial system is the “discovery, vindication and establishment
of truth. Since, the object of a criminal trial is to mete out justice, convict
the guilty and protect the innocent the trial should be a ‘search for truth’
and not worry about over technicalities”.
In
the case of Meera Devi v. Jitender[4],
the Supreme Court had emphasized upon the Malimath Committees’ suggestion for a
judicial reform and iterated the findings of the committee that “the judge in
his anxiety to demonstrate his neutrality, opt to remain passive and truth
often becomes a casualty”.
In the case of Shivani Sharma
v. Ram Chander[5], the court said that “the
judge is not a mere umpire at a wit-combat between the lawyers for the parties
whose only duty is to enforce the rules of the game and declare at the end of
the combat who has won and who has lost. He is expected, and indeed it is his
duty, to explore all avenues open to him in order to discover the truth and to
that end, question witnesses on points which the lawyers for the parties have
either overlooked or left obscure or willfully avoided. A Judge, who at the
trial merely sits and records evidence without caring so to conduct the
examination of the witnesses that every point is brought out, is not fulfilling
his duty”. Further in the case of Raj v. Ajay Kumar (SC 2011), the court had
remarked that “not just the judges but all presiding members of the bar have a
duty towards the litigant to seek justice”. In the case of Mohd Iqbal v.
Uttarakhand[6] (Uttarakhand HC 2012) the
court had reiterated that “any trial without the pursuit for justice makes no
sense”. In the case of Ram Chander v.
State of Haryana[7] (SC 1981) also the Apex
Court had advocated for the role of judge being more than a spectator for
effective dispensation of justice.
Inquisitorial Features In Indian Criminal Justice
System
If we closely look at the provisions of the Criminal
Procedure Code and the Indian Evidence Act, we will notice that there are some
provisions that do not adhere to the adversarial system strictly. Like section
311 of the Criminal Procedure Code, where the court has the power to summon or
re summon any witness at any stage of the proceeding. Where under this section
the court could only call the witnesses, under section 165 of the Evidence Act,
the court can even ask for the production of any document or a thing. As per
the section 165 of the Act, the judge has the power to ask any question to the
parties or to the witnesses at any stage of the proceeding. The ultimate
purpose of these inquisitorial proceedings is to do the complete justice by
finding out the real truth of the matter. These two sections are complementary
to each other in a sense that under section 311 of the Code, the court can
summon the witness and once the witness is before the judge he can examine him
under section 165 of the Evidence Act. The opposite party gets the right to
cross examine that witness only on the discretion of the court.
The
court under section 165 of the Evidence Act, could even ask irrelevant
questions or questions on hearsay from the witnesses or the parties. But
according to the proviso of this section the judgment has to be based only on
relevant facts duly proved. But there are three some restrictions on this power
of the court, that the court cannot ask the questions that fall under
privileged communication, or are improper under section 148 and 149 and cannot
allow secondary evidences of document unless allowed under section 65 of the
Act. In the case of Raghunandan v. State of UP, it was held by the Apex court
that even the bar of section 162 of the Code Criminal Procedure does not apply
on the section 165 of the Act and the court could ask even the questions on
statements made to the police in the course of the investigation.
In the case of Nepal Chandra Roy v Netai Chandra Das[8]
(SC 1977), the court had remarked that in order to do complete justice the
court has to be active and it has the power to interfere at any point of time
and ask questions to the witnesses or to the parties. However, the judge should
not be over zealous. He should not unnecessarily interfere at the early stages
of the examination and should wait till the examination of the parties has got
over. Further in the case of Himanshu Singh Sabharwal v. State of MP[9]
(SC 2008), the apex court observed that if fair trial is not imparted to the
parties and court has the reason to believe that the prosecutor is not acting
in a proper manner the court can exercise the power under section 311 of the
Code and 165 of the Evidence Act to call the evidences for the sake of justice.
Further under section 313 of the Criminal Procedure
Code, the court has the power to examine the accused. The court can at any
stage of the trial question the accused, the purpose behind this provision is
to enable the court to interact personally with the accused without the
interference of the lawyer. Here also the court tries to cull out the truth,
but the oath is not administered to the accused under this provision. And
therefore the opposite party cannot cross examine him, and therefore is not
considered as substantial piece of evidence in the case. The accused is free to speak whatever he
wants to speak as he won’t held liable if he refuses to give answer to a
question asked by the court or if he gives a false answer.
Further, it was held in the case of Sakiri Vasu v.
State of UP[10],
that section 156 (3) of the Criminal Procedure Code includes all such powers
that are required for a proper investigation to ensure fair trial. This means
that the judicial magistrate could supervise the investigation done by the
police. As per the section 169 of the Code the magistrate is not bound by the
closure report of the police and can proceed with the case if he feels so.
Again, under section 173(8) of the Code the court
can order the police for further investigation after the charge sheet is filed
by the police if the court is of the view that the investigation was not
conducted properly.
One cannot ignore the very fact that the role of the
magistrate starts from the very point when the FIR is lodged, as an occurrence
report has to filed with the magistrate under section 157 of the Code, and then
further the accused has to be produced before the magistrate within 24 hours of
arrest and then after every 15 days under sections 57 and 167 of the Code. And
therefore the court acts as a check at every step of the investigation and
trial of the criminal case. Therefore it would be wrong to assume that in India
the judge only sits as a mere spectator. Rather the judges are pro active and
responsive in Indian criminal justice system.
Conclusion
Though,
in the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 more
emphasis is laid on the “proof” rather than on the “truth” as our criminal
justice system is based on the principle that it is better that nine criminal
escape than convicting one innocent person. And therefore the judge acts as a
check post for the evidences that are laid before him at various stages. But as
the protectors of the rights of the people the Indian judges have ensured fair
investigation and fair trial by making a shift especially in the last few years
from passive adversarial system to the participative inquisitorial system.
Inquisitorial
system has undoubtedly some benefits it is a truth seeking system unlike the
adversarial system where in a competition to win the case truth is left
uncovered. And therefore it becomes the duty of the Indian judges to unveil the
truth by employing the appropriate tools they have under the legislative
provisions. As the pursuit of truth should only be the guiding star of the
Justice system.