Dr. Justice V.S. Malimath Report First pages - Ministry of Home Affairs

24
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.
2.3. Over the years taking advantage of several lacunae in the adversarial
system large number of criminals are escaping convictions. This has seriously
The system is heavily
loaded in favour of the
accused and is insensitive
to the victims’ plight and
rights.
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.
2.4. 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.
INQUISITORIAL SYSTEM
In the adversarial system truth is
supposed to emerge from the
respective versions of the
facts presented by the
prosecution and the defence
before a neutral judge.
2.5. In the inquisitorial system, power to investigate offences rests primarily
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 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