The accusatory system of trial and the inquisitorial system in india
Answers
Answered by
1
accusatory system:
Criminal process consists of two important steps, namely the investigation
and the judicial process. Someone is to make an investigation in order to formulate a
charge and someone is to exercise the judicial function in deciding whether the charge issubstantiated. There IS this division of function and the judicial process IS called
accusatorial. 8
The system has essentially two leading features. Firstly, there is a sham fight
between two combatants and it contains the primitive idea of penal action. The parties
come before the court on an equal footing. The court gives help to neither. The one
party formulates his grievance while the other party denies it. Secondly, the judge ends
the contest by deciding against one or other of the parties. The system is a mixture of
two proceedings, civil and criminal. The mode of trial is some type of ordeal.9
The Crown is the prosecutor in all cases and this means that the case against
the accused is presented by one party, called the prosecutor or prosecution, and met by
the other party called the accused. The task of investigation, preparation and
presentation of the case is upon the prosecutor and not upon the judge or the magistrate.
A tribunal simply tries the issue between the two contesting parties. And the defence is
no more than a demonstration that the prosecution has failed to prove its case beyond a
reasonable doubt.
The adversary principle that it is for the prosecution to bring a case to court
and prove guilt is an important characteristic of an accusatory system. IO The trial is
essentially a party process. It involves a two sided contest, between prosecution and
defendant, in a judicial arena. The parties are in an equal position. The judge does not
have any initiative either in taking jurisdiction or in collecting evidence and obtaining
proof. The judge acts as an impartial moderator evaluating the evidence produced by the
parties, ensuring that the proceedings are conducted with procedural propriety, andannouncing a decision at the conclusion of the case. 11 The collection of evidence is
exclusively in the hands of the parties, chiefly with the prosecution. The judge is bound
by the evidence, which survived the exclusionary rules. Furthermore, if the parties
choose not to call a certain witness, then however relevant that person's evidence might
have been, there is nothing the court can do about it. 12 The proceedings are oral, open to
the public and the evidence is mainly tendered by direct examination of witnesses with a
right of cross examination by the opposite party. Historically the accusatory system was
tied to the popular juries which gave unreasoned verdicts. 13
The adversary model recognises a more significant role for the accused and
the defence in criminal justice administration, for this system is based on an adversary
ideology. Its rationale is that if two parties assume contrary and opposite positions on
the issues (prosecution and defence) and carry on competitive debate, complemented by
the introduction of supporting evidence, the court as an impartial third party is thereby
placed in a better position to analyse and evaluate the respective contentions and arrive
at a correct finding about the issue in dispute. It prefers means to result and emphasizes
process over goals. 14
The accusatorial system is more sensitive to the liberty of the citizen.
inquisitorial system:
There are two basic features to an inquisitorial system. The judge in an
inquisitorial system is both judge and prosecutor. Thus several functions concentrate in
the judge. Secondly, collection of evidence is in the control of the judge. 19 It places
more emphasis on ensuring the punishment of a guilty party. It does not have much
concern or considerations for basic and fundamental rights of the citizens. It is clear that
a zealous pursuit of the inquisitorial approach would erode the freedom of the citizen. 2o
In an Inquisitorial system, the dominant role in conducting a criminal inquiry
is played, at least in theory, by the court, a dossier is prepared to enable the judge taking
the case to master its details. The judge then makes decisions about which witnesses to
call and examines them in person, with the prosecution and defence lawyers consigned to
a subsidiary role. In some inquisitorial systems the dossier is prepared (in serious cases)by an examining magistrate (juge d' instruction) with wide investigative powers, but
more frequently this preparatory task is carried out by the prosecutor and police. 21
The judge initiates investigation and collects all of the evidence. The
investigation is thus a part of judicial proceeding. The judge has full control all over the
proceedings.
Criminal process consists of two important steps, namely the investigation
and the judicial process. Someone is to make an investigation in order to formulate a
charge and someone is to exercise the judicial function in deciding whether the charge issubstantiated. There IS this division of function and the judicial process IS called
accusatorial. 8
The system has essentially two leading features. Firstly, there is a sham fight
between two combatants and it contains the primitive idea of penal action. The parties
come before the court on an equal footing. The court gives help to neither. The one
party formulates his grievance while the other party denies it. Secondly, the judge ends
the contest by deciding against one or other of the parties. The system is a mixture of
two proceedings, civil and criminal. The mode of trial is some type of ordeal.9
The Crown is the prosecutor in all cases and this means that the case against
the accused is presented by one party, called the prosecutor or prosecution, and met by
the other party called the accused. The task of investigation, preparation and
presentation of the case is upon the prosecutor and not upon the judge or the magistrate.
A tribunal simply tries the issue between the two contesting parties. And the defence is
no more than a demonstration that the prosecution has failed to prove its case beyond a
reasonable doubt.
The adversary principle that it is for the prosecution to bring a case to court
and prove guilt is an important characteristic of an accusatory system. IO The trial is
essentially a party process. It involves a two sided contest, between prosecution and
defendant, in a judicial arena. The parties are in an equal position. The judge does not
have any initiative either in taking jurisdiction or in collecting evidence and obtaining
proof. The judge acts as an impartial moderator evaluating the evidence produced by the
parties, ensuring that the proceedings are conducted with procedural propriety, andannouncing a decision at the conclusion of the case. 11 The collection of evidence is
exclusively in the hands of the parties, chiefly with the prosecution. The judge is bound
by the evidence, which survived the exclusionary rules. Furthermore, if the parties
choose not to call a certain witness, then however relevant that person's evidence might
have been, there is nothing the court can do about it. 12 The proceedings are oral, open to
the public and the evidence is mainly tendered by direct examination of witnesses with a
right of cross examination by the opposite party. Historically the accusatory system was
tied to the popular juries which gave unreasoned verdicts. 13
The adversary model recognises a more significant role for the accused and
the defence in criminal justice administration, for this system is based on an adversary
ideology. Its rationale is that if two parties assume contrary and opposite positions on
the issues (prosecution and defence) and carry on competitive debate, complemented by
the introduction of supporting evidence, the court as an impartial third party is thereby
placed in a better position to analyse and evaluate the respective contentions and arrive
at a correct finding about the issue in dispute. It prefers means to result and emphasizes
process over goals. 14
The accusatorial system is more sensitive to the liberty of the citizen.
inquisitorial system:
There are two basic features to an inquisitorial system. The judge in an
inquisitorial system is both judge and prosecutor. Thus several functions concentrate in
the judge. Secondly, collection of evidence is in the control of the judge. 19 It places
more emphasis on ensuring the punishment of a guilty party. It does not have much
concern or considerations for basic and fundamental rights of the citizens. It is clear that
a zealous pursuit of the inquisitorial approach would erode the freedom of the citizen. 2o
In an Inquisitorial system, the dominant role in conducting a criminal inquiry
is played, at least in theory, by the court, a dossier is prepared to enable the judge taking
the case to master its details. The judge then makes decisions about which witnesses to
call and examines them in person, with the prosecution and defence lawyers consigned to
a subsidiary role. In some inquisitorial systems the dossier is prepared (in serious cases)by an examining magistrate (juge d' instruction) with wide investigative powers, but
more frequently this preparatory task is carried out by the prosecutor and police. 21
The judge initiates investigation and collects all of the evidence. The
investigation is thus a part of judicial proceeding. The judge has full control all over the
proceedings.
Similar questions