A Comparative Study on Indian And French Prosecution System

Written by Gracy Bindra

Co-Founder and Editor-in-Chief, Law & Order

Fifth Year, BA. LLB. Symbiosis Law School, Pune

Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.



In order to maintain law and order in a civilised society, an efficient functioning of the criminal justice system is a must. This is to protect every individual’s right to life and personal liberty and on the other hand also ensure fair trial. Understanding the system becomes all the more important in order to take steps to enhance credibility and reliability of the sources of information of the investigation agencies and guarantee impartiality and ascertain expedition and transparency by increasing professional competency of prosecutors and their coordination with the investigation agency. The author aims to understand the intricacies of the prosecution system of India and France. A comparative study has been done to better understand the pitfalls in the Indian prosecution system and certain inspirations which can be adopted from that of France to make it more coherent and efficient.

Key words: Prosecution system, Public Prosecutors, Criminal justice system, Police, Justice


Criminal jurisprudence includes the study of the prosecution system of a country which entails coordination and relation between judges, prosecutors and police to attain the goal of serving justice by means of fair trial and searching the truth of the case. In this regard, procedural laws, i.e. The Code of Criminal Procedure is put in practice which lists guidelines and directions for simplifying the criminal justice system while creating synergy with the judiciary.

The ultimatum of punishing the offender is often delayed or errored and question of accountability and who is responsible for the miscarriage arises. This is where the prosecution system needs amendment.

The basic foundation and starting of any prosecution system is filing of complaints and thorough investigation of the same. The police therefore play an important role in shaping the case and ascertaining that all the facts and circumstances are put in light and taken note of by the competent authorities such as public prosecutors and courts.

To ensure there is no delay or miscarriage of justice, perjury needs to be kept in check and system of accountability and checks and balances needs to be devised where focus is on delivering justice and restoring people’s confidence in the criminal justice system.

The Prosecution System In India

The Indian prosecution system developed during British colonial era who followed the Regulating Act, 1773.[1] Later, after independence in 1947, procedural law followed by Britishers was amended to codify the present Code of Criminal Procedure, 1973 after the recommendations of 41st Law Commission Report. The offences defined under the procedural law i.e. the Code of Criminal Procedure, 1973, and substantive law i.e. the Indian Penal Code, govern the Indian criminal legal system and ensure adversarial trials that ensure fair trial and principles of natural justice are followed.

Hierarchical criminal justice system:

The essential elements of Indian prosecution system are: police, prosecution, courts, prison which aim to maintain law and order in the society. India has a tier system with local courts called ‘Magistrates’ with further classification according to the pecuniary jurisdiction and intensity of the offences. For rural areas, the courts are termed as ‘Judicial Magistrates’ and for urban areas, ‘Metropolitan Magistrates’. Above that they have Sessions Court presided by Session Judge and Additional Sessions Judge. Next up is the High Court situated in every state which ensures smooth functioning of Session Courts. The Apex court i.e. the Supreme Court of India ensures that justice is served without any delay and takes cognisance of all the serious and grave offences.

Rights of accused:

Every person who is suspected and detained has a right to know the charges filed against them in the FIR under Section 50 of the Code as well as be informed of their right to legal aid and bail. Under Section 173, police officers complete the investigation report which is carried out independently and not interfered by the judiciary. The individual taken into custody is mandatorily supposed to appear before the Magistrate within 48 hours of the arrest under Section 57 of the Code. The Supreme Court, in the case of D.K. Basu v. State,[2] laid down certain guidelines with regards to arrest and detention of individuals.

Presumption of innocence:

Under Section 102 and 105 of Indian Evidence Act, no evidence can be used in an incriminating manner and requires the court to carry out public trial under CrPC.

Investigation process:

There exists a separation of power between the judiciary and the investigative authorities (the police) which means that the judiciary cannot interfere in the investigation, to avoid undue influence and discrimination. This ensures a far more efficient and fairer trial when the investigation to be carried out is done to serve justice.[3] False cases and complaints are dealt with utmost strictness by the courts.

Public prosecutor:

Under 24(7) of the Code, a public prosecutor is appointed in the High Court only after them being in practice for over 7 years. Section 25 of the Code is dedicated to the Assistant Prosecutor. The power of appointment is with the government to appoint special public prosecutors for the special cases which are of public interest.

Public prosecutors are allowed to withdraw themselves from the case after court’s permission under Section 321 of the Code.

Plea bargaining:

After the 2005 amendment of Code of Criminal Procedure, 1973 plea bargaining was allowed for certain instances/offences which are punishable by imprisonment for over 7 years but cannot be related to socio economic condition of the country as that is related to national or cases related to minors under 14 years .

The Prosecution System In France

France is a common law country and part of the European Union, therefore has ratified all the European Conventions. The Criminal law has evolved over ages with various codes and precedents constituting the criminal jurisprudence. The first codified Criminal Code was known as ‘Code d’instruction Penale of 1808’. It was not until 1958 that the Code was amended to enforce the Code that is currently in force. The French constitution has enshrined the criminal code to be in legislative domain under Article 34.[4] As part of the European Convention, under Article 6, every individual has been guaranteed the right to fair trial.

France follows an inquisitorial model of trial, i.e. the aim is to find the truth and all the authorities are engaged and coordinated to do the same.

Hierarchical Court system:

A dual legal system is followed in France i.e. public or private. The public part (known as ‘Droit public’) consists of a field of law applied to the operation of a public body and its administrative actions. These courts are termed as “Ordre administratifs”. On the other hand, the private legal system (known as ‘Droit prive’) governs private bodies and individuals. These judicial courts are known as “Ordre judiciaire ”.

There is a three tier system for criminal courts which consist of the local magistrate which takes cognisance of petty offences (known as ‘Judge de proximitte’). The tier above that is the correctional court which adjudges not so serious offences and felonies (known as ‘Tribunal correctionnel’). The top tier and the apex court is the court of session which presides over all the departments and has appellate and original jurisdiction and gives judgements related to serious crimes and misdemeanours(known as’ Cour d’ assises’). The apex court consists of 3 judges and 9 juries to adjudge the case and give decisions concerning welfare and public interest.

There are three stages and various authorities involved in solving a case, i.e. police investigation, prosecution and judicial investigation and ultimately the trial in the competent court.

The approach of this court is that of a presumption of innocence and has been explained well in Truche Report 1997.[5] Under the Article 226(13) and 226(14) of the Code of Criminal Procedure, 1958, every person is bound by professional secrecy and the same is protected by civil, criminal and disciplinary sanctions. In fact, every investigation is to be kept secret under Article 11 of the Code, except to private claimants and ordinary witnesses or as expressed by law.


The police investigation and prosecution is of two types i.e. crime prevention police and crime investigation police. Under crime investigation police, the work relates to national police working in urban areas and are attached to Home Office and secondly to the functions carried out in rural areas and work under the Ministry of Defence.

The judges who are engaged in investigation give instructions to police and interrogate the suspects and witnesses directly as well as carry out judicial powers of deliberating and pronouncing decisions.

Various and heavy documentation is undergone in preparing the report which is now open to be shared with the clients under Article 114 of the Code.

The judges are more involved in cases with serious offences and carry out inquiry and determine issues of guilt or innocence, while keeping the proceedings secret.[6] It is allowed under the French Code to allow expedited procedure of investigation in serious offences if that is prejudicial to public interest. This can happen in stances where the offender was caught red handed or is a serial offender. Otherwise a normal original course of investigation can be carried out under Section 160(1), 163(1) and 170(1) wherein a case can be constituted against any person by the court taking cognisance without a formal complaint. Under Article 190(1) of the Code, sensitive cases which are against juveniles cover their circumstances and family background and not investigate the evidence in isolation which can result in incrimination.

Prosecution system:

The prosecution system ensures the right to legal aid within a few hours of detention and has been defined differently for different offences. In French trial system, the inquisitorial system is followed and no plea of guilty is followed and the court adjudges the guilt of the accused and imposes the sentence. The presiding judge has the power to question witnesses and request for further investigation, the witnesses have the right to remain silent.

Victim of the case:

The victim plays an important role in the investigation process and assists the prosecution and gets awarded the compensation from the State which is later realised from the accused. The Chief prosecutor is known as ‘Procureur pres de la Cour de cassation’, who is assisted by avocats generaux. There are however special courts for minor monetary offences.

Appeal system:

The appeal system is more or less another trial by another court who reviews the decision of the former.

Limitation period:

The serious offences which are punishable with imprisonment and fine or both have a limitation period of 10 years under Article 7 of the Code and on the other hand major offences could be booked within 3 years under Article 8 of the Code.

Comparative Analysis

Both the jurisdictions have some highlights and some pitfalls in their prosecution system. Some of the differences between the system are as follows:

Model of prosecution system:

On one hand, India follows an adversarial system of trial in some elements and the procedural laws followed in the country mostly have the ultimate purpose of delivering fair trials.[7] While the French criminal justice system relies on an inquisitorial model which has an aim to find the truth of the situation/case at hand.

Pre-trial phase:

One main difference between the two countries criminal justice system is that in India, the role of prosecutors is independent in its working from the entire judicial system and construes to very less or no participation in the pre -trial phase of investigation. The prosecutors are expressly prohibited from engaging in the process of investigation but instead follow the system as laid down in the Code of Criminal Procedure, 1973 wherein a First Information Report is to be filed and the police would then take cognizance of the offence and move forward with recording of statements under Section 161. The task of evidence collection is entirely isolated from the duties of the prosecutor to maintain sanctity of the investigation and avoid corruption and discrimination of any sort. The Prosecutors would however play a role in directing the courts to take the suspected accused in custody and proceed with the collection of statements and evidence.

As opposed to this system of India, French prosecution system believes in having the prosecutor play an active role in the investigation of the case.

They act as the head of the police and provide guidelines and directions to perform the duty of evidence collection as well as aid in making the victim’s case stronger. The Code of Criminal Procedure of France is enshrined with provisions which allows them to use discretion to take or not take the cases regarding petty offences in front of the court and send the offender to custody and infact direct the duration of the same.

Examination of Witnesses :

In India, evidence is collected by the police authorities under Section 137 of the Indian Evidence Act, 1872 and it is followed by the examination of the witnesses. The case is to be proven beyond reasonable doubt and the victim/plaintiff has no say/authority in the questions to be asked to the defendant.

In France, the prosecution witnesses can prompt and interfere to suggest questions in this process and then only will the closure report be finalised.

System of prosecution and judicial system:

Both the systems in these jurisdictions are efficient, although in India, prosecutors and judges work independently. The courts do not interfere in the process of evidence collection and are only concerned in giving the impartial judgments. However, in France, there is coordination between the two systems and work together in coming to the conclusion of the case. Infact, the person who acted in the capacity of the Prosecutor, may be the judge of the same case. French judges indulge in the evidence collection and are termed as “Investigating Magistrates”.

Position of the Prosecutors:

In India, a list is prepared by the District Magistrate, with the names of the interested candidates and approved by the State Government who selects on an ad hoc basis. Their tenure is specified by the state governments and is a temporary position. As opposed to this, French’s Ministry of Justice appoints prosecutors and enjoys the same status and privileges as the judges. The criteria is by an examination and training post that and enjoy full time employees status and there is no specified time.[8] The prosecutors in India are paid remuneration on the basis of the cases fought and success rate and employment benefits differ too. While in France, fixed pay is given to the prosecutors.

Both India and France have developed their criminal justice systems after much deliberation and reforms over the years and have certain elements to adopt for better efficiency and effectiveness.

Problems In Indian Prosecution System And Solutions From French Prosecution System

Indian criminal justice system is one of the most ancient systems to be followed and has various pitfalls which continue to affect the impact of the system in curbing crimes around the country. Countries such as France have a lot to offer wherein its elements could be adopted to make the system in India better and efficient. Some of them are as follows:

Due to the non- uniform quality of the education system in different states, the quality of entrants in the profession is hit and can only be made competent and of higher quality by increasing the pay scale and employment benefits so that more and more people are

encouraged to be a part of this system.

There lacks a description and definition of ‘prosecutor’ in the Code. However, time and again, Indian courts have interpreted and explained the nature of the office of the public prosecutor as being and working equivalent to that of a State executive.[9] Just like French Criminal Code, 1958, definition and nature of the office should be incorporated, thus recognizing this important position and making provisions for the same just like that of judges.

Due to the lack of statistics for determining the number of practicing public prosecutors, it becomes difficult to cover up the pending trials in the country. Moreover, a prosecutor is a temporary role and depends upon the performance for continuity. A system of adequate number of public prosecutors per court is a system that India could take inspiration from and understand the root problem of the backlog of cases and work on it in a more coherent manner.

There is no concept of institutional experience and training while handing cases to public prosecutors, misusing the actual spirit of ‘right to legal aid’. This means that the Assistant Public Prosecutors are entrusted with cases based on their entry level experience. Unlike India, France has a system of training before allowing the entrants in the system and should be adopted by India to avoid causality and miscarriage of justice at any point.[10]

Due to a hierarchical difference and system of public prosecutors, there is a major problem faced by Indian criminal justice system, i.e. inadequate opportunities for a promotion. It would be highly advisable for Indian system to adopt French system of hierarchy and promotion to allow prosecutors to appear before Sessions Court and then after certain years of experience, in front of the High Court, and then finally the Supreme Court.

More emphasis should be put on improving the quality of investigation by training the low-level police officers and introducing modern scientific methods in order to improve judgements.

Just as the French criminal system, more multi- disciplinary approach should be adopted to ensure speedy trial and avid miscarriage of justice.

The criteria of “beyond reasonable doubt” should be done away with and this element of the inquisitorial model should be adopted.

There lacks a system of checks and balances of the prosecution agency and requires accountability and penalization of default on part of prosecutors.

As the system followed in France, judges are allowed to take vacations in accordance with convenience without disrupting the smooth functioning of the courts. This needs to be adopted in India as well and the special privileges should be done away with.

Reiterating the recommendation by the Malimath Committee; it is highly advised that the judges are given dominant role and more authority in the investigation process wherein they give directions to investigating agency[11] and play a pro -active role in seeking the truth of the case.[12]

These recommendations are derived from the French criminal justice system and can improve Indian system which is dynamic and developing but needs certain changes for increased competency and coherence.


As per the state organisation, every country has developed a prosecution system to the best of their knowledge which examines the criminal behaviour in the state and punishes the offenders. Although not the identical prosecution tasks, the aim of serving justice remains constant. The approach of the two jurisdictions- India and France are seemingly different but aims at achieving the equilibrium between the prosecution, police and judges. Both the countries have a contrasting constitutional correspondence, as well as models followed, the responsibilities vested in the authorities are issued in public interest. In both the countries, the criminal prosecution system takes the crucial decisions of taking cognizance and then forwarding the matter to the court or declaring it frivolous and petty. Both India and France are common law countries and have a great tradition of law that went into developing the system it is today.


[1] Shodhganga, Evolutionary aspects of Parliamentary system and judiciary (24 September 2020, 12:54 pm), https://shodhganga.inflibnet.ac.in/bitstream/10603/71313/7/07_chapter%202.pdf. [2] AIR 1997 SC 610 [3] Arora B L, Law of speedy Trial In India, 90 (2006). [4] Constitution of France (1958); https://www.constituteproject.org/constitution/France_2008.pdf?lang=en [5] Richard Fredman, A Presumption of Innocence, not even in odds, (2000); https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1160&context=articles (Last accessed on 23 September 2020, 1:07am) [6] Dinesh C.Pande and V.Bagga, Abridged Trial Procedure in Indian Law, 23 (1983). [7] Smriti Parsheera, “Reforms of Prosecution in the Indian Criminal Justice System”,43 (2015). [8] Recommendations of the Malimath Committee Report, 2003 [9] State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389, 1957 1 SCR 279; M.N. Sankaranarayanan Nair v. P.V. Balakrishnan, 1972 AIR 496, 1972 SCR (2) 599 [10] Jacqueline. S. Hodgson, French Criminal Justice: A comparative account of the Investigation and Prosecution of Crime in France, 90 (2005). [11] 14th Law Commission Report on Reform of Judicial Administration, Vol 2, (1958) [12] Malimath Committee Report; https://indialawyers.files.wordpress.com/2009/12/criminal_justice_system.pdf (Last accessed on 27 September 2020, 3:45pm)



Code of Criminal Procedure, 1973

Code of Criminal Procedure, 1958 (France)

Indian Evidence Act, 1872


Malimath Committee Report, 2003; https://indialawyers.files.wordpress.com/2009/12/criminal_justice_system.pdf

Vijay, Yash S., The Adversarial System in India: Assessing Challenges and Alternative, (2012).

Jacqueline. S. Hodgson, The French Prosecutor in question, 63 WASH & LEE L REV. 1341 (2012)

14th Law Commission Report on Reform of Judicial Administration, Vol.2, (1958)

Herbert.M.Kritzer, Legal System of the World, A Political, Social & Cultural Encyclopedia, Vol. II

K.Zweigert & H.Kotz, An Introduction to Comparative Law, 3rd Edition

Madan Lal Sharma, The Role and Functions of Prosecution in Criminal Justice, 107th International Training Course: Participants Paper, Resource Material Series No.53

The French Legal System, Ministry of Justice, (2012)

Smriti Parsheera. Reforms of Prosecution in the Indian Criminal Justice System, (07 May, 2015).

George W Pugh. Administration of Criminal Justice in France: An Introductory Analysis, Vol. XXIII, Louisiana Law Review

Online Sources:

SCC Online


Hein Online