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The Prosecution Systems Of India And France: A Comparative Analysis By - Abhishek Sirohi

The Prosecution Systems Of India And France: A Comparative Analysis

Authored By - Abhishek Sirohi

LL.M. Research Scholar at The Indian Law Institute, New Delhi

E-mail – absirohi007@gmail.com

(Contact – 7696966999)




S. No.


Page No(s.)


Introduction to the Models of Criminal Administration



Backdrop of the Regulating Statutes



The Trial Procedure



Experience, Tenure and Pay Scales of Remunerators



Regulating Bodies – Institutional Independence or Subservience?



International Coordination











“Indian Criminal Justice model is based on the Adversarial Justice System. The aim of the trial is fair trial. The Inquisitorial Model, on the other hand, is altogether different which is followed in France and also in most of the European Nations. The aim of trial is to make a search for truth. In case of Adversarial system, the Judge never interferes in the investigation, nor does he assist the Prosecutors for prosecution of the case, whereas in the French system, Judges actively participate in the investigation. 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.[1] The accused is presumed to be innocent till found guilty. This, as a matter of fact, is common to both systems. What is however different is that in case of Inquisitorial Model, the accused is not proven beyond reasonable doubt. All kinds of evidence is accepted to prove the cases. This favorable 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. This is a criticism faced by the Indian system as heavy burden on prosecution often leads to failure to prove the cases beyond reasonable doubt.[2]  Ultimately it leads to acquittals which are fatal for crime control in society.




The Code of Criminal Procedure, 1973 has been the regulating statute in India. Pre-1973 era witnessed an overwhelming account of ways in which justice was dispensed. During the Ancient and the Medieval Period, there were no separate posts for the Prosecutors.[3]


The parties themselves used to represent their cases before the King or the Emperor. However, on arrival of the British Rule and specifically as soon as the Presidency towns of Bombay, Madras and Calcutta were captured by the British Rule, the systematic and formal mode of criminal justice delivery started in India.  While amending the procedural laws in 1973, the fundamental features of Adversarial Model were kept intact as they were, and new compatible changes were made[4]. There is no direct provision or reference of the Public Prosecutors in the Constitution of India. The concept of Public Prosecutors was harbingered by what was enshrined in Part-III of our Indian Constitution and in the Directive Principles. It mandates smooth and effective administration of the State.[5] Hence, in order to carry out those functions, the Prosecutor is one of the fundamental mediums. Indian Judiciary, basically consisting of the Supreme Court of India and various High Courts have periodically highlighted the role of Prosecutor in the administration of justice.


French Criminal justice system like India has sacrosanct historical background. Before 1958 the State, in their judicial functions delegated their powers as State representative to the employees working with the courts. State employees had a task to investigate the crime, collect evidence, execute sentences, etc.[6] At that time, legal knowledge by the State employees was not a criterion. With time, it was felt that there should be a body, legally sound and capable to represent the interest of victims in the law courts on behalf of the State. This is how Prosecutors concept gave birth in France. The Constitution of France has imposed an obligation on the State to protect justice.[7] The Ministry of Justice in France was under an obligation to discharge its duties to carry out the Constitutional goals. Judiciary and the Prosecutorial machinery have to assist the Ministry of Justice through their effective performance. Thereby to say, there is a direct provision under the Constitution of France for governing Prosecutors which is not so in India.”




(i)  Pre- Trial phase

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.[8] 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.[9] The police take guidelines from the, to run the prosecution cases and therefore the Prosecutors in France are able 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.[10]


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.[11] 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. 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 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.[12]



(ii) Trial phase

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 defense witnesses is prepared by Defence Counsel. The Judicial Officers approve the list of witnesses.[13]


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.[14] 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 evidence 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 evidence are permitted. Almost all kinds of evidence 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.

Closure Report of the examination of witnesses is given by the Prosecutors in France as well as in India upon completion of examination of witnesses in the respective courts.


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. Based on all the material brought before the courts, the court delivers judgment.


(iii) Post-Trial phase

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 criterion 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.




Indian candidates need to have experience of legal practice of a specified duration before they become eligible for selection as Prosecutors. For instance, a Public Prosecutor or Additional Public Prosecutor at the Session court or the High Court minimum seven years of experience in the Sessions court is required. For the post of Special Public Prosecutors, the candidate needs to hold at least 10 years practice at the Sessions Courts. However, to be an Assistant Prosecutor at the Magistrate courts, the candidate needs to practice for minimum tenure of three years. On the other hand, for any class of Prosecutors in France minimum two years of practice at the Bar is needed. However, the candidate needs to undergo the compulsory training.[15]

The Public Prosecutors and Additional Public Prosecutors in India are appointed on ad hoc or contract basis. They are temporary employees of the States. Their jobs are for a specific period as decided by the State Govts. There is hardly any job security for their services. However, the Assistant Prosecutors at the Magistrates Courts are full time employees of the respective States, and their jobs are secured by retention. On the other hand, the job of the French Prosecutors is fully secured since they enjoy lifetime career. They are treated like the judicial officers. Once they are recruited as Prosecutors, they need not do private practice. Fixed tenure of job attracts the skillful and quality candidates in the French Criminal Justice system.


The Indian Prosecutors are paid nominal remuneration depending upon the complexity of the case they handle. Based on the case the Prosecutors handles the remuneration is paid to the Prosecutors. On the other hand, the Prosecutors in France get handsome remuneration as good as the Judges. French Prosecutors are at par with French Judges. Due to better pay scales, better candidates join Prosecutorial jobs in France.”




In order to maintain regulation on the Prosecutors, in India as well as in France, there are regulatory bodies. In India, Prosecutors are appointed by the Law and Judiciary the Ministry of Law and Judiciary take the necessary disciplinary action against the Prosecutor in the event of violation of the norms.[16]  The Disciplinary Committee under the Advocates Act, 1961 is disciplinary  body  for  the Advocates  registered under  the Advocates  Act  as well  as the Prosecutors.[17] Also, Sec. 24 (as per 2005 Amendment) has created The Directorate of Prosecution for every State to exercise discipline of the Public Prosecutors within the respective States. In France, the Prosecutors are appointed by the Ministry of Justice. Hence, the Ministry of Justice is the competent authority to regulate the Prosecutors.


Indian Prosecutors are recruited by the Law and Judiciary Department of the State Governments. At the time of appointment, the Ministry plays a vital role in selecting the right candidates. However, after appointments, the Law and Judiciary Department never instructs or interferes in the Prosecutorial functions.[18] There is neither any law authorizing the Ministry or bureaucracy to instruct or interrupt the judicial proceedings. As soon as the Prosecutor takes charge of the case, there can hardly be any political interference in the Prosecutorial function. However, in the case of disciplinary issues, the Ministry of Law and Judiciary takes necessary disciplinary action. On the other hand, the French Criminal Justice pattern authorizes the Superior Prosecutors and the Ministry of Justice to give instructions to the Prosecutors; and they need to follow the same. These things affect the institutional independence of the prosecution. Sometimes, for the personal bias, the ministry can interfere in the prosecution work which goes against the notion of pure administration of justice.”




The Law-and-Order protection mechanism is set up by the respective States. The Constructional mandates and the Statutes of the respective States offer protection for Prosecutors. However, to protect and recognize the institution of Prosecutors at the global level, there are specific organizations. The Prosecutors are bound to follow the parent law of the respective Nation; and in addition to that, the Prosecutors in India and France are internationally affiliated. In International norms, some of the duties are mandatory and some of the provisions are just persuasive. India is one of the Asian countries and is signatory to United Nations Organization (UNO) protocols. There is an Organization of the Prosecutors called International Organization of Prosecutors (IOP). This organization deals with the international norms and standards for the Prosecutors in the Member States. The Rights, duties, prerogatives, liberties, powers, privileges are specifically covered under the guidelines made by the International Association of Prosecutors created by the Unites Nations Organization. France is one of the civil law countries in Europe. France has been following the guidelines for the prosecution under the International Court of Justice (ICC), Under the Rome Statute, and the Code of Prosecutors is given. For effective performance of the Prosecutorial functions, these guidelines are issued periodically.[19] Interest of Prosecutors is protected by adopting certain welfare policies for the Prosecutors. These guidelines are not mandatory. These are advisory. These are some driving force for the Prosecutors.



After understanding the overview of the Prosecution system of France, the following reforms and solutions are suggested to be incorporated in the Indian Prosecution System for efficiency:


1.   There needs to a special provision in the Code of Criminal Procedure, 1973 that defines a prosecutor and the nature of the office that he holds.

2.   The post of Additional Prosecutors to be created exclusively for the supervision of crime and collection of evidence and crime data. This will increase the involvement of Public Prosecutors in the Investigation System.

3.   The opinion of the Public Prosecutor on whether a case can be triable or not should be given preference over the discretion of the District Superintendent of the Police, since the Public Prosecutor is well aware of the legal intricacies in a case- and this would eventually prove to reduce the backlog in cases.[20] This power can be made challengeable on limited grounds by a higher authority to avoid arbitrariness.

4.   During investigation, the Public Prosecutors should be able to opine on value of evidence since it is a crucial key to get to the truth.

5.   The appointment of Public Prosecutors of all levels can be made on merit basis through common competitive examination held by the Public Service Commission having jurisdiction.

6.   Public Prosecutors should be given intensive training from a National Institute to develop uniformity in the quality of prosecution service.”



From the abovementioned, it would be safe to conclude that the Indian Prosecution System could benefit from the French Prosecution System if a few changes are incorporated at the earliest. However, the suggestions made are only limited to the increase in involvement of Public Prosecutors in delivering justice. Since separation of power is one of the essential features of the Indian Constitution; to merge Judiciary and Enforcement completely like in France would challenge the basic structure of the Indian Constitution. Hence, the independence of Judiciary in the Indian Criminal Justice System should be left untouched. The Indian system, like the French system in many ways could benefit, if it adopted certain technicalities from it; hopefully, vice versa too.”





[2] Robert Vouin, The Role of Prosecutor in French Trial, Vol. 18, AM. J. COMP. LAW, Pp 483-497.


[3] Committee on Reform of Criminal Justice System, Government of India, Ministry of Home Affairs, p. no. 24- 25, 2003. Committee on Reform of Criminal Justice System, Government of India, Ministry of Home Affairs, p. no. 24- 25, 2003.

[4] Rule of Law, Challenges for changing world, Independence of Prosecution, 103.


[5] S. Govind Swaminadhan, Investigation and Prosecution in Criminal Cases, IND. J. OF CRIM., page 23, 1977.





[8] Vinit Narayan v. Union of India, 1 SCC. 226, 1998.

[9] Prof. Dr. Hans Jorg Albrecht, Settlement Out of Court: A Comparative Study of European Criminal Justice Systems 4.

[10] Vanya King, Criminal Procedure in Non Adversarial and Adversarial Systems of Justice Viewed From Victims Perspectives 2013.

[11] Giuseppe Di Federico, Independence and Accountability of Public Prosecutors 2011.


[12] B.L.VERMA, DEVELOPMENT OF INDIAN LEGAL SYSTEM, Deep & Deep Publication, 1987 page 161.

[13] Madan Lal Shrama, The Role and Functions of Prosecution in Criminal Justice System.

[14] P.Venkateh, Police Diaries, Statements, Reports and Investigations, 1990 page 182.

[15] 197th Report of Law Commission of India on Public Prosecutors Appointment, page 26.


[16] Supra at 13, page 24.

[17] Sheonandan Paswan v. State of Bihar, Cri LJ 793 at 830 (SC), 1987.

[18] Vol. 2 Sairam Sanath Kumar, Dr. V. Krishna Ananth, The prosecutorial system in our criminal justice administration – A close look, NULAS Law Journal, page 14.


[20] Vol. 1 Committee on Reform of Criminal Justice System 2003, Home Ministry, Government of India.


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