Imansingh Gurung VS HMGN

HABEAS CORPUS
CASE : CRIMINAL CASE
COURT : SUPREME COURT OF NEPAL

BACKGROUND

The petitioner Gurung claimed that the Court Marshal general took action against him although he was a civilian.  The Case study : Imansingh Gurung VS HMGN

He was sentenced to eight years imprisonment under Section 45(b), in an allegation of committing crime under Section 57 of the Military Act. He had urged the respondent for the revision of the decision; however, no notice of any development about the same had been supplied to the petitioner. The petitioner had been punished for two years of imprisonment and fined Rs. 65,000 by the Central Regional Court on a charge of illegal foreign exchange. The Court Marshal again punished him on the same ground.
This had violated Articles 11(4) and 14(2) of the then Constitution as well as Article 14(2) of the Constitution of 1990. Civilians may not be punished under the Military Act. The petitioner requested that the decision be declared void and that he be released from illegal detention issuing an order of habeas corpus.

The respondents stated that the punishments awarded to the petitioner by the ordinary court and the Court Marshal were separate and not the same case. The punishment by the special court was related to illegal possession of foreign currency while the punishment by the Court Marshal was related to abetting a military officer to commit an illegal act. The Military Act is protected constitutionally under Article 131 and Section 4 of the Law Interpretation Act 1953. Therefore, the petition was requested to be quashed.

Full bench Held
Article 23 of the Constitution guarantees constitutional remedy for substantive as well as fundamental rights. Article 88(2) of the Constitution may be applied to declare a law null and void if only such law is inconsistent with the present Constitution, not the former Constitution.

The jurisdiction of the court may not be exercised retrospectively to declare void a decision taken under the situation where the former Constitution was effective. The question on the constitutionality of the jurisdiction of the Court Marshal would have been raised then under Article 71 of the former Constitution. The question is raised only after three years of the existence of the law; therefore, it would not be practical declaring such law void abinitio<, unless deemed extremely necessary by the nature of the subject matter.

If citizens are treated unequally by any act of state agency or by law made by legislature that would be unconstitutional in accordance with Article 11(1). Laws formulated to fulfil requirements of one group or community may not resolve the problems of other groups or communities.

If there should exist a reasonable relationship between such laws and the intended objective, it may not be regarded against the right to equality. Therefore, the provision of Section 1(3)(d) may not be consented on the ground of the systems of the other countries and court judgments. If the provision is endorsed, regarded as reasonable and if jurisdiction is given to the Court Marshal to adjudicate cases involving a civilian only on the ground of the involvement of military personnel in the crime, this may be social intercourse of the military. Therefore, it is discriminatory and unjust to apply the debated section of the Military Act to the civilian petitioner.

If any civilian citizen is treated differently to the other civilians keeping him in a military category and depriving him of the opportunity of justice through an ordinary court, and if there does not seem reason and ground, such act would be against the Article 11(1) of the Constitution. Hence, clause Section (d) of clause 1(3) of the Military Act is deemed inconsistent with Article 11(1) of the Constitution and thereby declared ipso facto null and void.

In the context of issuing a habeas corpus order, it is obvious that the detaining agency, whether ordinary court or military court, must maintain the Constitution and legal provisions. The restriction by the Constitution to interfere in the proceedings of the Court Marshal does not mean that it may act whichever way it likes. If the Court Marshal detains against the Constitution and the law and if the path of complaining is closed, the detained may seek alternatives and the court may release the prisoner by declaring the detention unlawful.

As far as the actions and punishment of the petitioner are concerned, the facts and evidence of the case show that the punishment awarded to the petitioner in accordance with Section 45(b) and 7 of the Military Act is based on a charge of illegal possession of foreign exchange which is a crime of civil nature like customs, smuggling, corruption etc
It may not be said that such acts would fall under military crime merely on the ground that proceeded under military law. The military offence is related to the operation of a military organisation and discipline; so the intention of the proviso of the Article 88(2) is not to restrict interference only on the ground of involvement of military personnel in any crime.

Therefore, the court can review judicially the punishment awarded to a civilian in a charge of civilian nature by the General Court Marshal and it can declare void such unconstitutional and unlawful decision. The charge to the petitioner seemed to be abetting to a military personnel. Hence, the punishment by the Court Marshal is revoked and the petitioner be released from the detention by an order of habeas corpus.

 

Hira Pasi VS HMGN

COURT : SUPREME COURT OF NEPAL

CASE : CIVIL CASE

BACKGROUND
The appellant was accused of being involved in a robbery case and there was a statement allegedly made by the accused at a police office confessing to the accusation. The initial appeal court had convicted the accused on the ground of this confession and the appellant had appealed to Supreme Court claiming that the confession was drawn against his will and could not constitute sufficient evidence for conviction.

VERDICT
In the decision of the subordinate courts it seemed that the appellant was charged with the accusation on the basis of the information of an approver. In any case it would not be just and reasonable to take the confession of such a person against him unless supported by other independent and reliable evidence. For judicial conscience, the confession taken from the accused in custody is not enough for the justification or verification of the information received from the approver.

The statement made by an accused in custody may not be acceptable as independent and trustworthy whatever the circumstances may be. Even if it was not proven that the police had directly subjected the accused to any threat or coercion, the custodial confession may not be taken as the evidence enough to convict an accused since such confession might be drawn from influences in custody. Therefore, the judgment of the subordinate courts is not upheld and the appellant is acquitted.

 

Gopal Siwakoti V HMG

RIGHT TO INFORMATION

COURT : SUPREME COURT OF NEPAL

CASE: CIVIL CASE

BACKGROUND

According to the information disseminated by the governmental and non-governmental media, Arun Hydro Project, which was about to be launched, would create an economic misuse such as percentage commissions due to the involvement of World Bank and other international contractors and also a long-term impact on environmental protection and social balance. It was alleged that the investment of the project might not be sustained by the country. As vigilant citizens the petitioners requested information on the project from the respondents. However, the respondents denied this and thus infringed the petitioners’ fundamental right to information as granted by Article 16 of the Constitution. There were numerous suspicions on the need, rationale, usefulness and sustainability of the project due to doubtful activities and contention of the respondents. The loan drawn from the foreigners would have to be reimbursed, directly or indirectly, through the taxes paid by the citizens of Nepal including the petitioners. In the Memorandum of Understanding the terms and conditions of the investors were not found stated even though the matter was a public concern and the right to such information is also granted by the International Covenant on Civil and Political Rights which applies in Nepal equally to domestic laws. There were several precedents regarding public concerns. Therefore, the petitioners requested an order of certiorari, thereby directing the respondents to supply all the information regarding the project.

The respondents asserted that several seminars and meetings had been organised to clarify the technical, environmental and economic aspects of the project. At its office a library and information section is operated to supply information to the people as required. Therefore, citizens including petitioners are not deprived of the right to information. The petitioners had no locus standi either. A study of the project had been carried out for a long time and the proposed project is appropriate in every aspect. The technical aspect is perfect and different measures are set to control environmental impacts. The benefits to the local people after completion of the project, training related to its construction and operation, necessary facilities and securities and settlements for people possibly displaced from the project site had already been planned. The provision of Article 16 is not a privilege of the petitioner to receive copy of all statistics and details but only entitlement to general information. The petition mentioned about the Memorandum of Understanding, which shows that the petitioners had access to any necessary information. Accepting inevitability of the need of hydro-electricity for the development of the nation, the project is to be completed under Articles 25(2) and 26(3) of the Constitution, which in fact restrict the exercise of jurisdiction for judicial remedy. Thus, it was requested to nullify the petition.
The respondents had requested an immediate hearing of the case, especially taking into consideration the possible negative effects on investments and operations from the side of donors, which could cause a national loss.

HELD

Any dispute, if it affects negatively the interest of the general public, is an issue of public concern. General public concern includes the issues related to residence, employment, security water resources development, social justice etc. Arun-3 project would have a long-term impact on all citizens including the petitioners. The debated issue is about the development of electricity by national and international resources, and therefore is a subject of public interest and concern.

Article 88(2) may not be attracted merely because of the inclusion of a public issue but the subject should bear the nature that fits enunciation by the court.

In the present case, it would not be constitutional for the court to put off the case as the court cannot enforce directive principles of state policies. Since Article 16 provides for each citizen to demand and receive information about a matter of public concern, the petitioners deserve a locus standi to file the petition with the court, as the debated Arun-3 Project is a matter of public concern and importance.
A right is nothing without a remedy. Although Article 16 of the Constitution guarantees the right to information, there is no specific law providing for the manner and matter to provide the information. The spirit of Article 16 seems to be one of managing people’s right to information in a democratic manner.
The petitioners had not related the said dispute with a particular question of law or constitution. As the matter claimed therein is not one of judicial enunciation but rather one related to economics and politics, Article 88(2) cannot be attracted therefore.
When a right is established and if procedure to materialise the right is still lacking, the court has to fill the gap. The demanded documents seemed to be of a huge quantity and it would simply be impossible for the respondents to supply the petitioners with copies of all the documents. If the court would impose such a burden this would go beyond judicial limitations and would be a rigid manifestation of justice.

Therefore, in lack of directives by the law, eight points of procedure were laid down by the decision to supply the copies i.e. information. A writ of mandamus was issued for the purpose of supplying the information on the basis of the above-mentioned eight-point procedures and prevailing laws of the land.
The court has also drawn the attention of the government to formulate the official secrets Act. It has also ordered that the eight-point procedures would come into force until and unless necessary rules and regulations were made.

Chandra Bahadur Nepali VS HMG

HUMAN TRAFFICKING

COURT : SUPREME COURT OF NEPAL

CASE : CRIMINAL CASE

PETITION
The petitioner was charged with an offence under Section 4(a) of the Human Trafficking Control Act. The prosecution was carried out under the provision of Section 6 and 7(2) of the Act regarding the endorsement of statements made by the approver at the police. According to the above mentioned provision, if the defendant did not deny such a statement, the court could take it as endorsed and as conclusive proof.

According to Article 11(5) of the Constitution 2019 and Article 14(2) of the Constitution 2047, presumption of innocence is a fundamental right. In the line of this provision, a plaintiff is liable to prove that the defendant is not innocent. The principles of law, as accepted by Nepal, state that in criminal justice the burden of proof does not lie with the defendant. The provision of Section 7 of the Act is inconsistent with Article 11(5) of the former Constitution and would, ipso facto, be void after one year of commencement of the new Constitution.
As with crimes of a serious nature the burden of proof shifts to the accused, the option to be released on bail or due dates during the trial of cases are no longer available. Therefore, the petitioner had asked for a necessary order including the order mandamus.
The defendants’ side contended that the Human Trafficking Control Act was a law to maintain order in society and to prohibit the trade of human beings. The privileges of formulating such a law under the provisions of Article 17 of the former Constitution and Article 11(a) of the present Constitution were fundamental principles of law. In a criminal case the accused may not be deemed guilty only on the ground of his or her statement, but rather it should be supported by other corroborating evidence. Since any violation of the petitioner’s fundamental right had not been established, the petition would merit to be annulled.

PETITION QUASHED

The case was referred to a special bench from the division bench, as a serious constitutional issue was to be dealt with in the case.
According to the provisions of Article 11(5) of the former Constitution and 14(3) of the present Constitution a person is not bound to speak against him or herself against his or her will. One should not be presumed guilty simply on the ground that one remained silent. However, his right to silence does not restrict to convict the accused if established or proven guilty by other evidence. Therefore, if someone voluntarily makes a statement, the same may be taken as evidence in favour of or against the person.
The issue of Section 7 of the Human Trafficking Control Act that relates to the burden of proof is a matter of legislative policy. The provision formulated in a law by legislature may not be termed as void unless save with the provision stated in the Constitution. The burden of proof is laid to the plaintiff or defendant depending upon the subject matter. If a special act requires someone to lay the burden of proof on a certain party on the basis of certain circumstances, it may not be labelled as going against the Constitution.

The preamble of the Act says that the law was brought forth to protect the interest of the ordinary people by controlling the trading in human beings. Imposing restriction on such an act itself is constitutional. Therefore, the said clause 7 does not directly control the defendant’s right to silence even if the burden of proof is laid on the defendant.

The court never compels someone to make any statement against him or herself and no provisions have been made to restrict the fundamental rights of the defendants. Since the court looks into other direct and circumstantial evidence in accordance with law, laying the burden of proof on the defendant does not mean that the court overlooks other evidence. In a different context special laws have been made laying the burden of proof on the defendants. Therefore, unless the law is seen to have been formulated explicitly against the provisions of the constitution, the court may not doubt the constitutionality of such a law. It is not found that Section 7 of the said law clearly contradicts with any provision of the Constitution, therefore, the petition is quashed.

 

 

Benoj Adhikari v. HMGN,Ministry of Home Affairs

Habeas Corpus: Difference Between Preventive And Punitive Detention

Case : Criminal Cases

Court : Supreme Court of Nepal

Background

Benoj, student of Minbhavan Campus was arrested and detained at Hanuman Dhoka by police and neither the cause of arrest was revealed nor produced before the court. Writ is issued in the court against the fundamental rights guaranteed by the Article 11, 12(2) and 14, A Habeas Corpus petition plus demand of search warrant was filed before the court on the behalf of Benoj and his friends.

Detail

Benoj, student of Minbhavan Campus did not return home from Campus one day. The police came to his house the next day, searched his home and treated his family in an undignified manner. They asked the police about Benoj’s whereabouts. The police only told them that he was arrested and detained at Hanuman Dhoka. The family went to visit Benoj, but the police did not allow them to meet him neither the cause of arrest was revealed nor produced before the court. Considering that the police would have detained Benoj against the fundamental rights guaranteed by Article11, 12(2) and 14 habeus corpus petition including the demand of search warrant was filed with the court on the behalf of Benoj and his friends.

Containing the plea of the petitioners side the government attorneys said that Benoj and Ramesh had been arrested after based on the information that that were collections donations for the conduction of “people’s war”. Khukuri, handmade bombs, petrol bombs and other arms were seized from their home as evidence. They would have absconded if not arrested nad they were kept under preventive detention using poweres as mandated by Section 3(1) of the Public Security Act(PSA) to prevent them from absconding. The attorneys said that the petitioners were not tortured. They had confessed that they were Maoist and receipts of collecting donations were found with them. There was a threat to law and order with regard to the intergrity of sovereignty of the Kingdom due to its activities and explosives seized from them. The attorneys stated that the petitioners were kept in preventive detention in accordance with law and demanded that the petition should therefore be quashed.

Division Bench Of The Court Held

A division bench of the supreme Court held that the issues in the petition raised a question whether the provisions of the procvisions of the PSA or Acts related to Esplosive Materials as well as Arms and Ammunitions could be applied int the case. Therefore, the bench referred case to the full bench since complicated legal issues were to be settled therein.

There were two questions to be settled by the bench:

What would be the difference between detention under the PSA and detention under general criminal proceedings?
Whether the detention under the PSA would replace the detention of ordinary criminal detention or whether PSA could be alternatives to Criminal law (Act)?

Verdict

Detention under the PSA is preventive and the accused in such detention has to be presented before the adjudicating officer within 24 hours. Detention, beyond this time without an order of the adjudicating officer would be tantamount to illegal detention. The PSA has less to do with the right to criminal justice enshrined in Article 14 of the constitution. It relates to sovereignty of the State, peace and the interest of the general public.

In criminal cases, however, detention is of a punitive nature. If someone’s act is against the law of the land it constitutes a crime and is thereby liable for punitive detention. In such cases the accused is entitled to the right to criminal justice enshrined in Article 14 of the constitution. The determination of the punishment and hearing takes place in an open court. Hence, there is a big difference between punitive and preventive detention.

Detention under the security law and punitive detention by criminal act are fundamentally different and may not be applied interchangeably. Materials like hand made bombs and petrol bombs are subject to crime and prohibited by the Explosive Control Act and Arms and Ammunition Act. If someone commits such acts he or she is to be prosecuted through criminal proceedings. But such a person may not be kept under a detention of security law. The detention of the petitioner under security law is not seen lawful; therefore, the petitioner is to be released through the issuance of a writ of habeas corpus.

HMG V Ballu Agrawal

HABEAS CORPUS

COURT : APPELLATE COURT OF JANAKPUR

CASE : CRIMINAL CASE

BACKGROUND

In this case the petitioner was illegally detained because of that the Appellate court of janakpur issued an order of Habeas Corpus and gave  order to release the petitioner.

DETAILS

In this case the police had taken the petitioner from the house and was detained for two months in the charge of smuggling narcotics drugs. He was detained without any offense  and was deprived of food and water for 21 days.The petitioner filled a petition with the appellate court Janakpur for search warrant.

VERDICT 

In this case, Appellate Court of Janakpur Issued an order of Habeas Corpus and gave order to release the petitioner acknowledging that the detention was ill – intended and Deliberately untrue document were created by the responded for legalizing the detention on that ground the court deemed that the respondent had kidnapped the petitioner with ill intention.

 

Prem Bahadur Gharti Magar V HMG

ATTEMPT TO RAPE

COURT : SUPREME COURT OF NEPAL

CATEGORY: CRIMINAL CASE

BACKGROUND

Prem Bahadur was charged with attempting to rape against Lal Kumari and was convicted as per chapter on Rape NO.5 and Sentenced Him for 2 year jail.

DETAIL

In this case, Prem Bahadur was charged with attempting to rape against Lal Kumari. The accused was police officer who approached the girl by night. Prem bahadur assault Lal Kumari with intent to rape, but she managed to free herself from the strong hold of Prem bahadur and escaped.She ran on to Ram bahadur and told him about the incident. In the crime scene, the slipper belonging to Prem Bahadur was found.Lal kumari suffered bodily injury and tearing up her dress.

VERDICT

The court convicted Prem Bahadur as per chapter on Rape n0. 5 and sentenced him for 2 years.

HMG V Budhiman

ATTEMPT OF MURDER

COURT : SUPREME COURT OF NEPAL

CATEGORY : CRIMINAL CASE

BACKGROUND

Kanchha hunt Raju instead of dove and was charged to attempt of murder.

DETAIL

In this case Kanchha , Budhi and Raju went for dove hunting.Kancha points his gun to Raju and trigger his gun saying that there is no dove to hunt so he would like to hunt him instead as dove hasn’t been found to hunt .Raju gets severely injured. Kanchan and Budhi were charged with the attempt of murder.

VERDICT

The lower court  acquits them of charge but supreme convicts Kancha and acquits Budhi as Kancha was 15 years old the court sentenced him 5years of imprisonment.

HMG V Bhaktu Tamangi

ATTEMPT TO TRAFFICKING

COURT : SUPREME COURT OF NEPAL

CATEGORY : CRIMINAL CASE

BACKGROUND

Jeet bahadur tamang was accused of attempt to trafficking and was sentenced for 10 years of jail and other two with  half  punishment as abettors.

DETAILS

In   this case Bhaktu Tamangi forced Gyamchi TAmangi to go to jeet bahadur Tamang’s house. There Renjen and Jeet kept her in secret captivity and told her that they will sell her in Bombay. Gyamchi’s father and brother rescued her after 3 days. Jeet bahadur, Renjen and Bhaktu were accused of attempt of trafficking.

VERDICT

The court sentenced Jeet Bahadur for 10years as perpetrator and other two half, i.e. 5years as abettors.