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SYMBIOSIS LAW SCHOOL, PUNE

First Internal In
Comparative Criminal Law

The Comparative Analysis of the Prosecution System in India


and France

Govind Tanwar
15010126480
Semester: IX, Division: E
INTRODUCTION
Criminal justice system includes all the interdependent components of the court, various
stages of a trial procedure also. In order to determine the guilt of the accused, there are two
basic models of administration of criminal justice in the world. One is Adversarial or
Accusatorial system. The modus operendi, role of the police, Prosecutors and the Judges
changes according to the model of criminal justice system. Indian Criminal Justice model is
based on the Adversarial or Accusatorial Justice System. All the procedural laws are based
on this Model and the ultimate aim of the trial is Fair Trial.1 The trial is conducted in front of
the competent, impartial and independent Judges. The Judge never interferes in the
investigation nor does he assist the Prosecutors for prosecution of the case. The police
investigate the case; Prosecutor brings before the Judge all the relevant facts. The Prosecution
proves the guilt of the accused beyond reasonable doubt. On failure of the prosecution, the
'benefit of doubt' is given to the accused. The accused is never questioned during the trial and
he is presumed to be innocent till found guilty. All the principles of natural justice are
rigorously followed in the Adversarial Model. The isolation of Prosecutor and police and
Judges leads to slow pace. The Prosecutors become helpless if the police have not cared to
investigate meticulously. Heavy burden on prosecution often leads to failure to prove the
cases beyond reasonable doubt. Ultimately it leads to acquittals which are fatal for crime
control in society. If there is no respect for law and order in the society, the criminal tendencies
in the society get encouraged. Inquisitorial Model is altogether different which is followed in
France and also in the most of the European Nations. The ultimate aim of trial is to make a
search for truth. Judges actively participate in the investigation. The police, Prosecutors and
the Judges collectively work in the pre- trail phase in order to strengthen the prosecution case.
The accused is presumed innocent and prosecution needs to prove the case this thorough way
or that way.2 However the quantum of proof of the guilt is not beyond reasonable doubt as it
is expected under the adversarial model. All kinds of evidence is accepted to prove the cases.
This favourable atmosphere leads French Prosecutors to discharge their functions effectively.
It leads to better conviction rate which is a must to effectively control crime in society.3

1
Infra Ft 17
2
Hodgson, “The Police, the Prosecutor and the Juge D’Instruction: Judicial Supervision in France, Theory and
Practice” (n 13) 347.
3
Cour de cassation, Crim. 2 November 1820, Bull. crim., n. 140; Crim. 28 February 2007, n. 06-84.266, Bull.
crim., n. 65.
CLASSIFICATION OF PROSECUTORS
In order to bring clarity of functions and duties of the Prosecutors, there is a need of
classification of Prosecutors. In both the countries the Prosecutors are allotted their tasks on
the basis of respective offence and the respective court before that offence is adjudicated. The
Criminal Procedure Code, 1973 has categorized Prosecutors in India. The Criminal Procedure
Code, 1958 (CCP) in France deals with the specific categories of the Prosecutors. The Code
of Criminal Procedure in both the Nations explains the specific offence, the particular court
and the Prosecutor to represent the case. These Prosecutors are subordinate to the Ministry
they are acting for. 139 The Section 24 and 25 of the Code of Criminal Procedure, 1973 deals
with the classification of Prosecutors. In India, the hierarchy of the courts as per the nature of
the offence is expressly mentioned earlier.4
Therefore the Indian Prosecutors are classified in to three parts:
i. Public Prosecutors and Additional Public Prosecutors (Working in the Sessions
Courts at the District Level) Original cases wherein the punishment is seven year
or more in term and the appellate and revision cases from the Magistrates courts
conducted by the Prosecutors at the Sessions courts.5
ii. Public Prosecutors and Additional Public Prosecutors at the High Court’s (At the
respective State). The specific task of those Prosecutors is to present the appeal
cases before High Courts.6 If the trial court has awarded less sentence or acquittals,
then the matter can be sent to the High Court of Judicature in appeal. However, in
all the criminal cases, appeal is not considered as a matter of right. The
Constitution of India as well as the Code of Criminal Procedure has prescribed the
provisions about the Prosecutor at High Courts. Public Prosecutors in High Court
deal with the trial before the High Courts while exercising their extra-ordinary
original jurisdiction. Assistant Public Prosecutors At the subordinate level of
judiciary, wherein the punishment is less than 7 years, there are Judicial Magistrate
First Class, Judicial Magistrate Second Class, Metropolitan Magistrates and
offices established by the respective State Government. The Asst Public
Prosecutors present the criminal cases before such magistrate’s courts. 259
Generally, the Home Ministry of the respective State Government appoints the

4
François Molins, “Ministère Public” Répertoire de droit pénal et de procédure pénale (2014) s.86.,
5
Lisa Williams, Sizing up the Prosecution: A Quick Guide to Local Prosecution (Harvard Law School, 2010).
6
Robert Lyman, “Compulsory process in a globalized era: defendant access to mutual legal assistance
treaties” (2006) 47 Va. J. Int’l L. 261, 278.
Asst Public Prosecutors on full term basis through theoretical examination.
(Classification of Indian Prosecutors) Special Public Prosecutors.
iii. In order to present the special cases under the Indian Penal Code, 1860 or under
the Special Statutes (may be of the Central Government or the State Government),
the Special Public Prosecutors are appointed by the Central or State Government.
Minimum ten years' practice at the Sessions court is mandatory for this post. The
Special Public Prosecutors career is not a lifetime career and their pay scale differs
from case to case) CBI Prosecutors.7
The Central Bureau of Investigation is an independent investigating agency of the
Government of India. The Legal division of the CBI plays a dynamic role. The
Law ministry of the Government of India deputes a Legal Advisor .He is supported
by the Additional Legal Advisor and Deputy Legal Advisor, Senior Public
Prosecutor, Public Prosecutors’, Assistant Public Prosecutors.8 They all are
permanent employees of the CBI. They render legal advice to the CBI ISO.
Though their advice is taken seriously, but it can be over ruled sometimes by the
Executive CBI officers. In addition to that the special Public Prosecutors can be
engaged by the CBI on the daily fee basis. Generally to deal with the important
and serious cases those special Public Prosecutors are handpicked and appointed
from the Bar.9

Public Prosecution is known as exercise de l’action publique. French Prosecutors


are considered as Judges and they enjoy the prestige and prerogatives of the
judicial officers. However, there is no immunity available to them from
prosecution only because of their high status. French Prosecutors are categorized
as
i. Police Prosecutors (In the Police Court)
ii. District Prosecutor (In the District Court)
iii. Prosecutor General (In the Appeal Court)
In France, there is no provision pertaining to appointment of Special Public
Prosecutors since it is clarified that on the basis of the nature of the offence,

7
Christian Guéry, “Instruction Préparatoire”, Répertoire de droit pénal et de procédure pénale (2016)
8
Christopher Slobogin, “Comparative Empiricism and Police Investigative Practices” (2011) 37 (2) N.C. J. Int’l
L. & Com. Reg. 321, 323
9
James Hirby, “Definitions of Probable Cause Vs. Reasonable Suspicion” (The Law Dictionary)
Sec 24 of the Code of Criminal Procedure, 1973 respective Prosecutors
Designation is mentioned under the Criminal Procedure Code (CPC) of
France.10

10
Ludovic Belfanti, “Juge d’Instruction”, Répertoire de droit pénal et de procédure pénale (2016) s.76.
ROLE OF PROSECUTOR
Pre Trial Stage of every case pertains to Arrest, investigation, Custody of the accused,
directions for further investigation, and collection of evidences. The Code of Criminal
Procedure specifies how and when these powers should be exercised by Police, Prosecutors
and Judges. The Indian Prosecutors are independent of investigation and Judicial functions.
The Prosecutors do not take part in the investigation of the case. Hence there is hardly any
role for a Prosecutor in the Pre- Trial Phase in India.
Earlier, i.e., before 1973 when both the police and Prosecutors belonged to the police
department, Prosecutors used to play a dominant role in the pre- trial phase. However, now
the Prosecutors are totally prohibited from investigation. In India, the criminal Law is set into
motion when First Information Report which suggests commission of a cognizable offence is
lodged in police station. The Role of Prosecutor commences as soon as Statement under
section 161 of the Code of Criminal Procedure, 1973 is recorded by Police. The evidence
collection is a task of police officers and as the Prosecutor is not involved in that task. The
code of Criminal Procedure, 1973 has prescribed the mode and manner of sending accused to
the custody. Before trial begins, Prosecutors in India ask for the Custody of the accused. After
the arguments of the Prosecutor, Judge takes decision as to the custody. Prosecutors in India
do not decide the custody themselves. Only thing the Prosecutor can do is ask the respective
courts for custody. In addition to this, there are several case laws decided by the Supreme
Court of India as well as the High Courts of the respective States about the powers of the
Prosecutors asking for the police custody.

However, in France, the Prosecutors play a dominant and strong role in the investigation of
the case. They are strongly coordinated with the police. The police take guidelines from the,
to run the prosecution cases and therefore the Prosecutors in France are in a position to
strengthen the case of victim. The Prosecutors in the Republic of France have a wide range of
powers. All powers available to police officers in India are enjoyed by the Prosecutors in
France who discharge their duties and perform their functions either directly or indirectly.
The Prosecutors are heads of police officers. Entire police machinery in France works under
the direction and supervision of Prosecutors. The criminal law in the France is set into motion
when any private party of the police approaches Prosecutors and they allows them to carry on
the investigation. Those Prosecutors, specifically in respect of Delits less serious offences
have discretion either to bring or not to bring the matter before the court. The entire dossier
of evidence is collected by the police as per directions of Prosecutors. Only the relevant and
admissible data is collected by Prosecutors in the pre- trial phase. In order to prove the guilt
of accused and to get more information about the commission of crime, the accused needs to
be sent to the custody. This power to decide the tenure and nature of custody which is a very
important power is vested in the hands of French Prosecutors. The CCP has certain provisions
regarding the custody of the accused and when the Prosecutor can use these prerogatives.

IN TRAIL PHASE
Criminal Proceedings in order to determine the guilt of accused in the law court is known as
trial. Trial is one of the most important and indispensible phase in the administration of
criminal justice. The Prosecutors, Defence Counsels, the Police officers and prosecution
witnesses appear before the court where the case is conducted. Judges are bound to follow
specific procedures as detailed in the procedural laws and decide the dispute. The rules of
evidence need to be followed to decide the case. The Prosecutor’s role in the trial determines
the destiny of a case before the court. As mentioned earlier, fair trial is an ultimate aim of the
Indian Criminal Justice system which is basically adversarial one. An impartial Judge delivers
judgment on the basis of the material placed before him. Independent Prosecutor who does
not participate in the Investigation opens up the case before the court. On the other hand,
search for truth is an ultimate aim of the French Criminal Trial which is basically inquisitorial
one. In France, the court is under a duty to find out the truth and the Prosecutor is on duty to
assist the court in finding out the truth.

In India, the Charges are framed by Prosecutors and approved by the Judge. The
document showing the outline of the entire case is known as Charge sheet. On the other
hand, the charges are solely prepared by the Prosecutors in France without approval of
the Judges. The entire document is known as dossier.

i) Preparation of the List of Witnesses to be Examined

In India and France, the list of Prosecution Witnesses is prepared by the


Prosecutors on the basis of the whole case, and in both the countries list of defence
witnesses is prepared by Defence Counsel. The Judicial Officers approve the list of
witnesses.

ii) Examination of Witnesses


In India, Examination of witnesses commences as per Section 137 of the Indian
Evidence Act, 1872. As per the sequence, the Prosecutor conducts the
Examination in Chief. Then the defence party conducts cross examination of
witnesses and if required, upon approval of the court, cross examination of the
witnesses is conducted by Prosecutors if the prosecution witness/ witnesses do
not support the prosecution. The accused in India enjoys the right to silence. If
the prosecution proves the case beyond reasonable doubt, then only the guilt can
be determined. All kinds of evidences are not permissible while examination of
the witnesses. Indian Evidence Act does not allow the Hearsay Evidence. Only
the best possible evidence or the direct evidences are permitted. Almost all kinds
of evidences are permitted before the courts. The hearsay evidence is also
permitted before the courts. The Prosecutors need not prove the cases beyond
reasonable doubt as is expected in Indian law / courts. The Prosecutors need to
bring before the courts the preponderance of probabilities. The accused is
presumed innocent till proved guilty in both the Nations. In India, the victim of
the crime is not empowered to dictate the Prosecutors about the mode of
examination of witnesses. The victim of the cases is disentitled to guide the
Prosecutors about the questions to be asked during examination of witnesses.
However, on the other hand in France, the prosecution witnesses are allowed to
interfere and suggest the questions to be asked to the witnesses through
Prosecutors.
iii) Argument and Judgment:
Argument of the prosecution case is conducted by the Prosecutor (Orally as well
as in written form) in India as well as in France. Argument of the Defence
Counsel follows the Argument of Prosecution. On the basis of all the material
brought before the courts, the court delivers judgment.
CONCLUSION
The Prosecutor’s job is not limited to pre-trial and trial, but also, it extends to the post- trial
phase as well to accomplish the pending tasks in the respective case. There are certain further
procedural steps like appeal, review, reference, revision, etc. for challenging the authenticity
of judgments or orders. E.g. In India, the Prosecutor can challenge in Session Court the
decision of the Magistrate’s court about less sentence or acquittal. Also, Under Section of the
Code of Criminal Procedure, 1973, the Prosecutor can file an appeal to the High Court. The
Prosecutors are entitled to file appeal as well as the revision petition under the Code of
Criminal Procedure, 1973 and the Constitution of India also provides the procedure of appeal.
However, there is a criteria for appeal and revision under the Code of Criminal Procedure,
1973. Thus all the decisions are not appealable nor can be revised in the Superior Courts.
Under Code of Criminal Procedure, the Prosecutors are entailed to file appeal and revisions
in review.

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