Posted on: November 3, 2020 Posted by: admin Comments: 0

Author : Pragya Singh, Student at Symbiosis Law School, Pune 


The appearance of law originates from age old traditions and natural law which was viewed as a divine authorization intended to be accepted by the people so as to live in a civilized life.

Notwithstanding, with advancement of new legal practices there brought about new frameworks of law which developed in various civilizations of the world. Contracts and deeds originate from age old practices from Mesopotamian time where traders and vendors had created ideas of partnerships and contracts. Common law custom which is the wellspring of pretty much every legal framework applied around the world, which includes India, is likewise founded on the Roman structure and two are, generally, identified with one another.

The establishment of the French legal system is determined in a key record at the outset drawn up in 1804, and alluded to as the Code Civil, or Code Napoléon, (Civil code or Napoleonic code) which set out the rights and obligations of occupants, and the legal rules of property, agreement, inheritance, contracts, etc. Basically, it became a variation to the necessities of nineteenth century France of the thoughts of Roman law and standard regulation. The Code Civil remains the foundation of French law even today, however it’s been refreshed and stretched out to assess the changing society. There are different codes, which incorporate fundamentally the Code Pénal, or Penal code, which characterizes criminal law.

The current Indian law gets its birthplaces from the Common regulation framework which is the final product of the British Imperialism over India. The Indian jail system follows a various hierarchical device of judiciary wherein the Supreme Court is situated on the apex of the system underneath which come the High Courts of states after which come the Lower Courts.


The criminal justice framework in India has been acquired from the Imperial period. Under the British India, the Regulating Act of 1773 was authorized which built up a court at Calcutta and later in Madras and Bombay. The Courts were to adhere to the British Procedural Law while concucting the cases.

Consequently, in 1861, the British Parliament passed the Criminal Procedure Code of 1861. The Code was revised in 1898 and afterwards in 1973, according to the 41st Law Commission Report.

The Code of Criminal Procedure (CrPC) administers the process of criminal law in India. It was authorized in the year 1973 and came into power on April first, 1974. It accommodates the method for the trial of offenses characterized under the Indian Penal Code.[1] The goal of the Criminal Procedure Code is to accommodate a procedure for the discipline of guilty parties for their violations. Segment 4 of CrPC states that all offences under the Code will be investigated, decided and in any case managed in relation to the provisions of this Code.[2] The core object of the Code is to guarantee that the charged party gets a reasonable trial so as to protect the standards of natural justice.

The Indian Criminal Justice framework follows an Adversarial System and has four significant parts in India: The Investigating Agency (The Police), the Judiciary, the Prosecution Wing and the Prison and Correctional Services. The police investigate the case; Prosecutor brings under the watchful eye of the Judge towards all the pertinent facts. The trial is directed before the skillful, unbiased and autonomous Judges. The Judge never meddles in the examination nor does he help the Prosecutors for prosecution of the case.

Criminal Prosecution ordinarily has two streams in India-The main which identifies with criminal cases started based on FIR or a police report, and the subsequent which alludes to criminal cases started based on private complaint. Regarding the first stream, the essential examination unit is the police station in India. After due examination, charge-sheets are documented in the Court. These cases are contested by the Public Prosecutor of the State.


Each individual, independent of whether arrested with or without warrant, must be educated regarding the grounds of his arrest. Each individual who is arrested must be delivered before a Magistrate immediately. No individual will be kept by a police official for more than 24 hours without being delivered before a judge. No person can be kept in the police custody for over 15 days during the time of examination even by an order of the Court.

Article 21 of the Constitution gives that “no individual will be denied of his life or individual freedom aside from as indicated by the procedure set up by law”. On account of D.K. Basu v. Province of West Bengal, the court held that ‘torment, death, assault in police care encroaches Article 21 and strikes a blow at rule of law. Torment includes physical as well as mental torture. Article 21 likewise includes free legal aid in its definition.[3]

In the event of Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, it was held that fast trial is a basic element of ‘sensible, reasonable and just’ system ensured under Article 21.

Article 20(1) states that an individual can be just sentenced for an offence which is a wrongdoing under the law in power at the hour of commission of the wrong act. Article 20(2) gives assurance against double jeopardy and Article 20(3) gives assurance to the accused against self-incrimination. To draw in article 20(3), the individual must be blamed for an offence and he should be compelled to be a witness against himself. Right against self-incrimination emerges when the implicating statements are made out of compulsion.[4]


In France, the prosecution work is composed at a public level as an aspect of the legal branch. The structural position of the Prosecution is resolved basically by the 1958 Order and its functional position by the Criminal Procedure Code. The Judiciary is separated into two bodies: the standing judiciary (which incorporates prosecutors) and the sitting judiciary (which incorporates trial judges and investing magistrates).[5]

Entrance is by a competitive examination assessment, followed via education at a national school, the Ecole nationale de la magistrature (ENM). The common education of future examiners, trial judges, and investigating magistrates creates bonds of both “collegiality and ideology.” Magistrates may move from the standing to the sitting judiciary, or the other way around.

France follows the “Civil law’ unlike the English-speaking countries which utilize a process of ‘Common regulation’ including India. Common regulation framework has been created over a long-period and are basically dependent on precedents and consensus, while Civil Law depends on a Code of Law.

French Criminal Procedure is known as d’coaching Penale and administers all of criminal framework in France. Minor violations and regular offences are managed by either a local magistrate or the police court. More genuine offences are managed by the Tribunal Correctionnel, the criminal law like the TGI. Grim violations like murder and rape are alluded to a Courd’ Assises, otherwise called the Assize Court where the trial happens with the assistance of a jury.

The French criminal technique includes three main steps:

 Police investigation and the prosecution

 Judicial investigation

 Trial

French Criminal Procedure Code offers various significances to confidentiality. Any man or lady who involves himself in the process is certain of the professional confidentiality, which whenever breached is culpable underneath the Code. The framework to prosecute an accused to a great extent includes the police officials.

France has the following types of police officials –

  1. Crime Prevention Police
  2. Crime Investigation Police
  3. National Police (works in urban regions and belongs to Home Office)
  4. The Gendarmes (work in rural regions and are connected to the Ministry of Defence)

These authorities spare citizens from the crimes in the Country and whenever submitted, lead the investigation to punish the wrongdoer. Grim or Heinous wrongdoings are consistently given priority and are taken care of through investigations.

A wrongdoer might be kept with the end goal of cross examination for 24 hours, which can be increased to 48 hours and in case of occurrence of specific circumstances, might be stretched out to as much as 98 hours. Under the French Criminal Procedure Code, an accused is allowed certain rights. For instance, he has a right to his lawyer while in custody. The police officials need to assemble an affidavit containing all the details of the accused for the time spent in custody.

The public prosecutor, the Procureur, is fundamental to the working of the French Criminal Process-from examination and prosecution to case disposition. The French criminal framework is judge-driven and gets its foundations from the inquisitorial model in light of which the defense specifically assumes an auxiliary job.

Normally the Procureur is educated regarding the different offences by private parties just as by the authorities of the legal police. Upon receipt of relating information, he needs to see if there is a prima facie case and whether that such a case is triable. At that point he needs to conclude whether to prosecute or not. He has in this association a discretionary power. He may set aside the grievances however he always has the power to re-open the issue, on the off chance that he chooses to. The quantity of cases set aside is practically almost half the complaints.

The uniform training of prosecutors and a central regulatory and bureaucratic structure advance consistency in guidelines and practices, and the position of the prosecution function inside the legal branch strengthens solid standards of prosecutorial autonomy and neutrality. Since the discretion concurred to French prosecutors incorporates charging, case management, diversion to non-criminal options, and plea negotiation, the framework has the ability to change in accordance with expanding caseload.

Despite the fact that he has discretionary capacity to dispatch or not prosecute, to call the accused to the court, or send the issue for examination in the event that the examination isn’t mandatory, when the prosecution is dispatched, the Procureur can’t pull back from the prosecution. It is accordingly observed that the public instrumentality isn’t deliberately the enemy of the prosecuted individual. His central goal is to see that the law is respected by its discernment. Be that as it may, at whatever point he gets an order to prosecute from his superiors, he needs to do as such, failing which he is subject to disciplinary action.

During the time of investigation, the Procureur has the option to request all proportions of examinations which he considers helpful. Reserving the Right to partake in the examination, he ought to be informed regarding the dates of proceedings. His assessment is to be requested, at whatever point the investigating magistrate wants to solicit his formal opinion before passing a significant order. But even so, they are not limited by such opinion. Toward the end of the investigation, the examination magistrate advances to document to the Procureur who needs to choose by an order what is the couse of action moving forward. On the off chance that the investigating magistrate passes on order of acquittal, the then the Procureur may conclude that the issue be investigated again or that the order of exoneration be assaulted on appeal. Prosecution is a party in a criminal trial, and he additionally appreciates the privilege of appeal and revision.

During the trial when the offense is looked to be proven, the Procureur has the right to question the accused just as the witnesses. In keeping with the principle of presumption of innocence , the burden of proof is on the prosecutor. The norm for criminal conviction is verification “beyond reasonable doubt”.


The principal point of contrast among the prosecution procedures of the two countries lies inside reality of the procedure followed; namely; The Inquisitorial and The Adversarial.

Under the Inquisitorial System, which is utilized by France, the pre-trial hearing  for bringing a conceivable indictment is ordinarily overseen by a judge whose duties comprise of the investigation of all aspects of the case, regardless of whether favorable or negative to either the prosecution or defense. Witnesses are heard, and the accused, who is represented by counsel, may likewise be heard, however he doesn’t need to talk and, on the off chance that he does, he isn’t put under oath.

While, India follows an Adversarial System, wherein each side is liable for leading its own investigation. In criminal procedures, the prosecution represents all the people everywhere and has at it’s disposal the police department with its specialists and research facilities, while the defense must locate its own investigative assets and finances. In both the nations, the Code of Criminal Procedure attempts to manage the functionaries of the Prosecutors.

In India, the technique for appointment, eligibility, measures of qualification and experience, the provisions for the courts, offenses and the Prosecutors, the privileges, powers, duties of Prosecutors, and so forth is explicitly referenced in the Code of Criminal Procedure, 1973. Prior to 1973, the Prosecutors in India were administered under the Police Laws of the individual States since the Prosecutors were an integral part of the State police divisions. The idea of Public Prosecutor was presented by the British Rule in India.

French Criminal justice framework like India has consecrated historical foundation. Before 1958 the State, in their legal capacities appointed their powers as State agent to the representatives working with the courts. State employees had the duty to investigate the crime, gather evidence, execute sentences, and so on. Around then, possession of legal knowledge by the State representatives was not a criteria. With the progression of time, it was felt that there ought to be someone legally capable and able to represent the victims in the law courts on behalf of the State. Based on this explanation, posts of the Prosecutors were made in France.

The Code of Criminal Procedure in India is of 1973 and that of France is of 1958.


Despite the fact that India and France follow distinctive model of administration of criminal justice, the accompanying changes and arrangements can be incorporated in the Indian Prosecution System for increased effectiveness-

a) The CrPC ought to be revised to define Prosecutor, its jobs and the idea of the office that he holds.

b) The Appointment of the Prosecutor ought to be made through merit and should be experience based to guarantee restrictiveness of the political influence and would bring about a productive framework.

c) Public Prosecutors should be given special training from a National Institute to create consistency in the nature of prosecution administration.

d) The post of Additional Prosecutors to be made solely for the supervision of crime and coolection of evidence and crime information. This will expand the contribution of Public Prosecutors in the Investigation System.

e) The assessment of the Public Prosecutor on whether a case can be triable or not ought to be given priority over the discretion of the District Superintendent of the Police, since the Public Prosecutor is very much aware of the legal intricacies in a case and this would in the end help to lessen the backlog in cases. It can be added that this power can be challenged on limited grounds by a higher power in avoidance arbitrariness.

f) There ought to be appropriate provisions for support of victims throughout the course of the trial and proceedings.


The common target of the prosecution frameworks of both the nations is to guarantee administration of justice and guarantee that the guilty must be exposed to the orders of law and not roam freely, which is without a doubt one of the essential requirements why law is made and put into force in the first place.

Both legal frameworks of India and France are totally different in its methodology. The process followed in France is somewhat rigid when contrasted with India, and might prompt  basic rights and freedom infringements and violations. Albeit Indian Procedural laws favor the accused, they bring about pointless suffering of the victims in some cases. Therefore, there should be a parity and balance. Both the frameworks in India and France have their advantages and disadvantages and are ever-changing.


[1] SurendraNath Banerjee v. Chief Justice and Judges of the High Court, [1882] ILR 10 [1882] Cal 109.

[2] Code of Criminal Procedure 1973, s 4(2),.

[3] Khatri (II) v. State of Bihar, [1981] 1 SCC 627

[4] Selvi v. State of Karnataka, [2010] 7 SCC 263.

[5]  Jacqueline Hodgson & Laurène Soubise,  ‘Prosecution in France’(May 2017)


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