Introduction

The society is group of people living together. The basic need of human being is peace and
security though human beings nature is competitive and self-assertion, due to this nature, the
conflicts in the society is the common problem. Peace and security needed for the
development. With the development of society certain moral values are going to recognize in
the society. For such development society requires laws, such laws are set of rules and
regulations through which a society is governed and it is made sure that people are living
peacefully and enjoying their rights given to them by the government. Every country has their
own set of laws which are suitable to citizens of their country. There are various types of laws
such as Civil Laws, Criminal Laws, Cyber Law and many more. The presence of such laws
reduces fear of any kind of immoral act which could affect the life of citizens of the society and
help them coexist in the society and such co existence can be achieved harmoniously as the
people themselves decides upon the rules to govern them. Each and every action which is
regarded as immoral in the society is dealt with through such laws and as well said “Every
action has an equal and opposite reaction” i.e., every offender will be punished as per the
degree of offense.

For instance, all matters related to property, divorce matters etc. Are dealt with Civil Laws
which invite penalities for each offence and even some kind of imprisonment in few cases
whereas all matters with regards to internet and security are dealt with Cyber Laws and other
serious aspects i.e., the acts which are done by any individual which are completely against the
norms of society are dealt with Criminal Laws. For example, taking the life of another person,
which is referred to as Murder in the Indian Penal Code, is an act which if not recognised or
punished would mean that anyone could take another’s life without any repercussions. To stop
such activities, criminal law punishes the accused to remove them from the society to protect
other members of the society from his actions. Further murder is not the only offence in
criminal law, India has two main criminal laws, one is Indian Penal Code (IPC) and the other one
is Criminal Procedure Code (CrPC). Few other offences under this category include Felony,
Theft, Robbery and many more. All such offences are punishable and invite jail sentences and
fine in many cases and all such punishments are there to act as a deterrent to deviant
behaviour in society and to guide people to work in a sophisticated and organised manner,
helping themselves co exist in the society.

Adversarial and Inquisitorial System

For the process of Criminal Justice, the Criminal Procedure Code 1 prefers the adversarial
system based on accusatorial method. In the system the the responsibility to produce evidence
lies on the party which seeks to establish the guilt where judge acts as an neutral person
between the opposing parties where both the parties are permitted to present evidence and
cross examine the witness. Whereas in an inquisitorial system the burden for presenting the
evidence at trial is the job of trial judge and it is the judge himself who decides upon relevance
and preference of probable witness and permission to both the parties to question witnesses.
“This system of criminal trial assumes that the state, on one hand, by using its investigating
agencies and government counsels will prosecute the wrongdoer who has equal opportunity to
counter and challenge the evidences produced by the prosecution.” 2

India took the adversarial system from its masters, the British. In this system basically the
accused is assumed to be innocent and the burden of proof lies on the prosecution to prove
beyond reasonable doubt that the accused is guilty. The accused also has right to remain silent
as per Article 20 (3) of Constitution of India and cannot be compelled to answer any question
1
Also referred as ‘the code’
2
K.N.C. Pillai (ed.), R.V. Kelkar’s Criminal Procedure, at 336 (5th edn.).
he is not willing to. This Criminal Justice System basically aims to punish the guilty and protect
the innocent. The truth is supposed to be dig out from the respective version of facts presented
by the prosecution and the defence before a neutral judge. The judge is like an umpire to check
whether prosecution is able to prove the guilt beyond reasonable doubt and the benenfit of
doubt is given to the accused. It is both the parties that determine the scope of dispute and
decide autonomously and in a selective manner on the evidence that they decide to present to
the court. The trial is usually oral, continuous and confrontational. The parties use to cross-
examine the witness to undermine the opposing case and to discover information from the
opposite party. Parts of trial which includes the presentation and questioning of witness
depend upon the projection of their relevance by the respective counsels. As pointed out by
Malimath Committtee, “it has not been entrusted with a positive duty to discover truth as in
the Inquisitorial System. When the investigation is ineffective, Judges seldom take any initiative
to remedy the situation. The adversarial system also requires a greater degree of proof for the
conviction of the accused. This is an element missing from inquisitorial systems, where judges
have a greater flexibility in deciding upon the guilt of the accused.” 3

On the other hand, Germany uses inquisitorial system. In this system the judge is not a passive
recipient of information, rather the presiding judge is responsible for supervising the gathering
of the evidences required to resolve the matter. The judge himself actively steers for the search
for evidence and the questioning of witnesses of both the parties are done by the judge
himself. in this Attorney plays a more passive role than judge, by suggesting the routes of
inquiry for the presiding judge and following the question asked by judge by questions of their
own. Almost all questions are covered by the judge so the attorney’s questioning is often brief.

The goal of both the inquisitorial system and the adversarial system is to basically find the
truth. But the adversarial system usually seeks truth by pitting the parties against each other in
a hope that competition between both the parties will reveal it, whereas on the other hand
inquisitorial system seeks truth by questioning the ones who are most familiar with the events
in dispute. The adversarial system places a premium on the individual rights of the accused
whereas the inquisitorial system places the rights of the accused secondary to the search for
truth.

Criminal Law in India

In ancient times, before the Muslim rule came to India, the penal law in India was the “Hindu
law” which prevailed in India. The rules and the criminal laws were usually based on the verge
of Smriti, which provided certain basic kinds of the punishments. Initially there were certain
corporal punishments that were recognized during that period. Later with development with
time, the first codified criminal law of India was the “Indian Penal Code 1860”. Till enactment of
3
See pt. 5 - Justice Malimath Committee Report on the adversarial system
IPC, 1860 there was no codified criminal law in our country. After the enactment of Indian Penal
Code, various laws were enacted as per the needs which dealt with different crimes, although
the Indian Penal Code remains universal dealing with all kinds of crimes. Although till date the
term “Crime” isn’t defined anywhere in the penal law rather section 40 of Indian Penal Code,
1860 defines the term “Offence” as punishable under this code. Although various jurists like
Austin, Blackstone and Stephen had provided definition of crime as per needs of the society.

The fundamental principle of criminal liability is that there must be a wrongful act- actus reus,
combined with wrongful intention, mens rea. The legal maxim, “actus non facit reum nisi mens
sit rea”, meaning an act does not make one guilty unless his intentions are also guilty. Even
mere criminal intention which is not followed by any prohibited act cannot be constituted as a
crime. Similarly any prohibited act without criminal intention is not crime. Motive and intention
are two different elements which comes under mens rea although both have a just a fine line
among them. Indian Penal Code has also recognized knowledge as a component of mens rea as
intention or knowledge is on the same footing while dealing with the guilty mind of the
accused. And whoever fail to take reasonable care while performing some act and if that act
affects anyone that that act is constituted as negligent act act of the person and is considered
as a mens rea for imposing criminal liability on the said person.

The most important element of crime is actus reus which is nothing but physical act as we
discussed above only physical act cannot be considered as crime. To establish actus reues,
lawyer must prove that the accused party was responsible for a deed prohibited by criminal
law. Although no crime is committed if a person is exercising his lawful right of private defence
and cause harm to another. Actus reus is commonly defined as a criminal act which is result of a
voluntary body movement. This describes a physical activity which results in caysing harm to
another person or property. Hence, anything varying from a physical assault or murder to the
destruction of public property would be qualified as an actus reus.

Further, in Criminal Law there are given some general exceptions which if committed within the
rights are not considered as crimes. Section 76-106 of Indian Penal Code, 1860 defines certain
general exceptions like act done by mistake of fact, act done by accident, act committed by
negligence or by a person of unsound mind or by a child of 7 years of age would not be
considered as a crime if duly proved in the court. Most important of such exceptions is the
Right of Self Defense of body or property which can even extended to death.

Contrast between Criminal Law system of India and Germany

The relation between the offender and accused had been going on through decades with
numerous transitions which eventually results into either victim-centric or accused centric
criminal justice system throughout the globe. Although its not right for all traditional systems
present in the world. With the states getting more and more powerful, the decision reached by
any such authorities in such matters was mainly that which favoured by state for its interest or
combined interest of society than that of vicitms. If we briefly take a look at the criminal justice
system of the countries than Indian system is more of a punishment delivering system, basically
in India the system of criminal justice is not a victim-oriented one whereas on the other hand
Germany’s system major portion doesn’t just focus on giving punishments but also focus on
other circumstances and damage dealt in the process by the victim or the offender.

As it was said by American scholar John Langbein around the 1970s that Germany is essentially
a ‘land without plea bargaining’ 4. Although this statement was criticized by several authors
claiming that informal negotiations in some form or the other have been there in the country.
Even in India informal settlements procedures were found with their roots in villages through
panchayat which made the parties to a dispute , make their case informally and decide upon it
based on their own customs and conventions. In our country there is no separate law enabling
the victim to have their say in the criminal justice process. The compensation, restitution and
restoration is still not a common practice here and the main reason which can be traced is
perhaps that the procedural law in the state does not provide much scope for such practices.
The process to attain the prescribed compensation is very cumbersome to practically help the
victim. This can be noted as a complete difference in comparison to the German Criminal law
where restorative justice is available not only to the juvenile offenders but also to adult
criminals and has been prescribed as law in various German Criminal codes. However if we look
at our Criminal Procedure Code, 1973 than the victim and offender can reach an settlement for
the matter as per section 320 of the code, which prescribes the process where offender and
victim come to an agreement to put an end to the litigation. This section basically allows the
parties to recourse to ‘compounding of cases’ in certain cases with due permission of the court
and in some cases without the court’s permission. As we know Germany is much advanced and
one of well developed country in the world and so is its criminal law justice system as compared
to our nation. It has very well structured proceedings of trial and their objective is not just
punishment centric rather they also focus on other individual circumstances related to the case
and closely focus at the damages dealt by both the parties which is further missing in our
criminal justice system.

Germany also has Plea bargaining as a common practice since the 1980s which is much before
than in our country. In many serious cases, the bargaining takes place when the investigation
has been shut and formal charges are framed and duly filed within the court i.e., all the
evidences which are needed to be presented in the case have been filed by the police and the

4
8 J. Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev. 204 (1979), available at
https://law.yale.edu/system/files/documents/pdf/Faculty/Langbein_Land_Without_Plea_ Bargaining.pdf
prosecution duly in the court at trial. Judges play a very active and crucial role in German plea
bargaining system as judges have to discuss the case with the parties and specify the sentence
that might be suitable as per the enlightened facts of the case stated in the file and during the
deliberations.5 Whereas on the other hand in India the issues faced regarding this process is
exploitation of the accused if he is an indigent. It is never a win-win situation for him as the
person is supposed to give up his right on trial and is often subjected to whims of his advocate
and even there is no clarity in the situation when parties usually fails to to reach the point of
settlement which is contrary to law. Basically the law provides only three chances when the
court can reject the application but the power to reject the settlement is not given to judge.

Conclusion
India is a big country with a large population where even remote areas are served with justice
through network of courts present in the country and citizens of the country have faith in its
Judiciary and justice system followed in India. A lot of landmark judgements which had been
delivered in our country have become benchmark for many countries throughout the world.
Although, the laws and the system is definitely less ambiguous and more structured in Germany
as compared to India but India is still ready for the reforms and is working towards it which
includes the need to remove the ambiguities in the present law. Both India and Germany can
learn a lot from each other’s systems. It should always be kept in mind that justice should be
served equally to both the parties to the dispute. Taking care of interests of one and ignoring
the other can never be the ultimate objective of justice in any form.

5
7 I. Turner, Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons,