ATTRONEY GENERAL

Criminal Prosecution System of Nepal: A Brief View

Fundamental Law:

The Interim Constitution of Nepal, 2063 is the fundamental law of Nepal and all laws inconsistent with it shall, to the extent of such inconsistency be void (Article-1).

Executive Power: The Executive power of Nepal vest in the Council of Ministers.

Legislature-Parliament: The legislature is known as Legislature-Parliament.

Judiciary: Powers relating to justice in Nepal shall be exercised by Courts and other Judicial Institutions in accordance with the provisions of this constitution, the laws and the recognized principles of Justice. Courts in Nepal consist of the following three tires:

a) Supreme Court
b) Appeal Court
c) District Court.

In addition to those courts, special Courts or tribunals may also be established for the purpose of hearing of special classes of cases.

Extraordinary jurisdiction of the Supreme Court:

Any Nepali Citizen may file a petition in the Supreme Court to have declared any law or any part thereof void on the ground of inconsistency with the constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights or on any other ground. The Supreme Court may declare that law as void either abinito or from the date of its decision if the, it was found inconsistent as claimed.

For the enforcement of the fundamental rights as conferred by the Constitution, or for any other legal rights for which no alternative remedy exists or the same is inadequate or ineffective, the Supreme Court may, in exercise of its extraordinary power, issue necessary and appropriate orders in the nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warranto. For the settlement of any constitutional or legal question involved in any dispute of public interest or concern also, the Supreme Court may issue necessary and appropriate orders to enforce such rights or settle the issue. The original and appellate jurisdictions of the Supreme Court are defined by ordinary legislation. It may also review its own judgments or final orders subject to the condition and in the circumstances as prescribed by law.

Right to Justice as Fundamental Right:

(1) No person shall be punished for an act, which was not punishable by law when the act was committed, nor shall any person be subjected to a punishment greater then that prescribed by the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted or punished for the same offence in a court of law more than once.

(3) No person accused of any offence shall be compelled to be witness against himself.

(4) No person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law (Compensation for Torture Act).

(5) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, or shall be denied the right to consult and be defended by a legal practitioner of his choice.

(6) Every person who is arrested and detained in custody shall be produced before a judicial authority within a period of twenty four hours after such arrest excluding the time necessary for the journey from the place of arrest to such authority, and no such person shall be detained in custody beyond the said period except on the order of such authority.

(7) Every person has right to fair hearing from compitent court.

(8) Incapable person shall have right to free legal service as provided by law.

Right Against Preventive Detention:

No person shall be held under preventive detention unless there is a sufficient ground of existence of an immediate threat to the sovereignty, integrity or law and order situation of Nepal. Any person held under preventive detention shall, if his detention was contrary to law or in bad faith, have the right to be compensated in a manner as prescribed by law.

Criminal Justice Process:

The working criminal justice process may be grouped as under:

(i) The Pre-trial Process
(ii) The Trial Process
(iii) The Post-trial Process.

The Public Prosecution Act, 1993 and the Public Prosecution Rules 1998 are the basic governing laws for the investigation and prosecution of crimes in Nepal. Additionally, the Muluki Ain (General Code of Procedure 1962) also has prescribed certain procedures relating to the conduct of investigation and collection of evidence.

The Police as an Investigation Agency:

The Organization of Police is established under the authority of the Police Act, 1956 and the Police Rules 1993. The Police Organization functions under the general supervision and control of the Ministry of Home Affairs. However, by virtue of the said law it is being developed and evolved as an independent professional force. As of now the following type of police force is in operation:-

(i) Public Police Force
(ii) Armed Police Force
(iii) Guard Police Force
(iv) Riot Police Force, and
(v) Traffic Police Force.

Within the Public Police Force, the Department of Crime Investigation, headed by a Deputy Inspector General of Police has been entrusted with the supervision, coordination and resource mobilization for the effective functioning of the Crime Investigation Department. This Department works through Regional (5) Zonal (40) and District (75) Police Offices throughout the country. The District Police Offices are the basic law enforcement agency of the force at the District level. As such, they are responsible for the investigation of crimes within their territorial jurisdiction. Because of lack of trained manpower, limited financial and physical resources, all of the 75 District Police Offices do not have a separate investigation section yet.

The Pre-trial Process:

Usually the crime investigation begins with the filling of the First Information Report (FIR) by the victims or near relatives or detection of the crime. Once the Police accept the FIR the search for the arrest of suspect and collection of evidences naturally follow. In the meanwhile, as per the requirement of the Public Prosecution Act, 1993 a preliminary report is filed to the competent District Government Attorney (DGA) who in turn, at his discretion may issue binding instruction to the Investigation Police Officer. The statement of the suspect who is in Police custody by the order of the Court is to be recorded by the Investigating Police Officer in DGA's presence in latter's Office. The rationale behind this seems to be to protect the suspect from mental/physical torture of the Police, if any. On completion of the investigation the Investigating Police Officer prepares a Case-file and submits the same to the District Government Attorney with his opinion as to prosecute or dropping the case. The District Government Attorney, on examination of the case-file, at his discretion, may take any of the following decision:

(a) Refer back the file to the Investigating Officer for further investigation and release the suspect if under arrest,

(b) Decide to drop the case altogether on account of lack of evidences and discharge the suspect,

(c) Decide to charge all or some and discharge other of the suspects.

Where the case-file has been referred back for further investigation the investigation process is supposed to continue and in due course, the same has to be submitted to the District Government Attorney for his decision. A decision for partial prosecution the decision of the DGA becomes final. No further investigation and subsequent prosecution against the discharged suspect is possible. However, where the DGA has decided to drop the case altogether and consequently the suspect is discharged, this decision of DGA has to be referred to the Appellate Government Attorney (AGA) for confirmation of the decision. AGA may either reverse the DGA's decision and order back for prosecution or confirm the original decision. In case the AGA agrees with DGA's decision, he has to forward the Case-file to AG office for the final decision of the Attorney General. In exercise of the power conferred by the Article 135 (2) of the constitution, the Attorney General may confirm or reverse decision made by his subordinates. If AG decides to reverse the decision of his subordinates opting for prosecution then the case-file goes back to DGA who then frame the charge and file charge- sheet before the District Court for trial. Once a charge- sheet is filed in the Court for initiating trial the DGA has to act as an Attorney for the state. However, so long as he has not decided to prosecute a case, his role is limited to that of an impartial Committing Authority or the Prosecutor.

The Trial Process:

The Trial Process begins with the filing of a Charge sheet before the competent District Court for trial. On the day of the filing of the charge sheet itself, the accused if under arrest, must be produced before the presiding judge for recording of the statement. The accused is at liberty to either admit or deny the Charge made against him by the Prosecution. At this stage, the accused person has right to engage a lawyer of his choice. Immediately after the recording of the statement of the accused, the Presiding Judge is required to pass an order for granting or rejecting the bail. If the bail is granted without demand for pecuniary security the accused is set free on personal bond. In case the bail is rejected or a large sum of money as security has been demanded and which the accused is not in a position to deposit the accused is sent to judicial custody as an under-trial prisoner. However, the accused has right to move to the Appeal Court for setting aside the original order. Meanwhile, the processes of production and examination of witnesses and adducing of any other evidences as listed by both the prosecution and defense side would follow. So far, no system of separate judge or Bench for hearing the Criminal or Civil Cases has been introduced in Nepal. This is true of all tiers of Courts.

The Post-trial Process:

Once the examination of witness and collection of evidence by trial Court is complete, the case becomes mature for final decision. The case of an under-trial prisoner is given priority for disposal. Usually hearing both the sides, the trial judge gives the verdict either convicting or acquitting the accused immediately. If acquitted, the accused been ordered to be set free immediately. But if the judgment is in favor of the prosecution and the accused is in custody, because of conviction, he has to remain under imprisonment. His custody will continue. However, the right to appeal is available to the convict. He also may approach the Appeal Court for setting free him on bail pending his appeal. On acquittal of the accused, the prosecution has right to file appeal against the judgment of the Trial Court.

Advantage/ Disadvantages of involving Prosecutors in Investigation:

From the very beginning, the Prosecutor is in a position to know the progress of the investigation work being conducted by the police. He is in a position to instruct and guide the police as to the collection of evidences etc. As the recording of statement of the accused the Investigating Police Officer is done in the Prosecutor's Office, he has good opportunity to assess the statement of the accused directly, which would be of help for him at later stage of decision-making.

In our experience, because of lack of proper understanding and appreciation of each other's role, both the Investigating Police Officers and Prosecuting Attorneys do not like to be interfered by the other. This has resulted sometimes in weak investigation and poor prosecution.