This article comparatively reflects on prevailing legal frameworks and practices of investigation within criminal justice system, and the roles of investigator and prosecution in Asia countries, including Nepal, India, China, Japan and Sri Lanka, appraising their systems in terms of both best practices and challenges. It also draws descriptions and comparisons on the issue under consideration from western countries including the USA, the UK and Germany, which have been consequential in the development of criminal justice system of the discussed Asian countries.





Every society has its own history of the development of criminal justice system. The history has bearings from the typical context of the given society. Factors such as the economy, landscape, culture, social setting, religion and most importantly, the history of the evolution of the given society itself play inevitable role in shaping the structure and essence of criminal justice. Nepal, for instance, followed inquisitorial system of criminal justice since early history of the society.


Coordination and functional cooperation between investigators and prosecutors is a key element for success to ensure fairness and impartiality in criminal justice, or, to prevent miscarriage of justice. The role of prosecutors in a functional criminal justice system is always vital even in the process of investigation because the investigation, as tool of obtaining evidence, is to be necessarily guided by the need of prosecution to discharge the burden of proof beyond reasonable doubt. In criminal justice system, the main responsibility of the investigator is to discover objective evidence, whereas the prosecutor's role, during the progress of investigation, is to secure legitimacy of the evidence by overseeing the legality of the procedures applied for collecting evidences by the investigator.


1.1.   Criminal justice system is a multi-pronged process: Criminal justice system, in general, follows a multi-pronged process, irrespective of its different structural frameworks in different countries that are popularly known as adversarial or inquisitorial system, or a hybrid of these two. In any of those forms, however, it consists of certain unavoidable stages, and engages designated institutions for its functional success. The existence of investigation, prosecution and adjudication, as distinct institution, is thus inevitable. The defense bar is omnipresent in all these different stages as an instrument to protect innocents. Ordinarily, these different stages are often generalized as the core functions of the system as a whole. In each stage, an independent agency is supposed to carryout works, generally without interference of the other but with fully established coordination and functional cooperation.


1.2.   The jurisdictions enjoyed by different agencies are institutionally independent and functionally interdependent: In the adversarial model of criminal justice system, one agency in particular exercises more power independently than the others, thus preventing others from interfering in its designated functions, although independence cannot be a license to function in isolation or disintegration of the system. In fact, the criminal justice system cannot be a platform consisting of mutually unaccountable, scattered and disintegrated sub-systems. While each agency functions in its own designated sphere and powers, the collective goal is to deliver a fair and impartial justice.


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