Imprisonment is possible to convert in cash If judge think reasonable not to take imprisonment at first time:
If the punishment is only three years or less imprisonment
If convict commit written commitment not to commence a such crime again in future
Convict has to pay Rs 25/- for per day of the imprisonment.
If convict, commits such crime with in three years he will be punished with the addition of earlier punishment. *
Constitution and Future of Criminal Justice System of Nepal Joint Attorney Yub Raj Subedi
Joint Attorney Soorya Prasad Pokharel
1
Limitation of the subject Present Scenario of the country
Interim Constitution and proposed provision for new constitution regarding the criminal justice,
Criminal justice system in present and reform in future through three Bills
Investigation
Prosecution
Adjudication process
Penal system and proposed reform
Present Scenario Before State cases Act, 1960
Investigation by Court through its Judicial Police
After, State Cases Act, 1960:
Joint Investigation and prosecution by Police and the prosecutor.
Court have the right to re investigation of the crime.
After, the Constitution of the Kingdom of Nepal, 1990:
Prosecution power in Attorney General
State Cases Act,1992 replaced the State Cases Act 1960.
Police investigate the crime and Prosecutor prosecutes a case *
Nepal is in transition Peoples movement, 2006
Comprehensive peace Accord, 2006
Interim constitution, 2007
Election of Constituent Assembly, 2009
Maoist participate in government
Tenure of constituent Assembly was extended thrice,
Ready to replace National Laws related to criminal justice system by a new code
Three Bills are tabled in Parliament *
Interim constitution 2007 Promulgated in 2007, takes the objectives of respecting peoples mandate commitment of democratic values and norms
Rights protected by the constitution as;
Life and liberty
Right against torture
Right against preventive detention
Rights relating to the criminal justice
*
Rights relating to criminal justice Right to know the reason of arrest
Right to consult a legal practitioner of choice at the time of arrest
Right to free legal aid
The arrested person should produced before the court within twenty four hours of arrest
Right against retrospective law
Right to presume innocent
Right against double jeopardy
Right to testify against himself
Right to be informed in any criminal proceedings
Right to fair trial by competent court
*
Court and Attorney General Three tire court system :
Supreme court
Appeal Court
District Court
Attorney General appointed by the President on the recommendation of the Prime Minister.
Attorney General has right to make a final decision as to whether to institute any case on behalf of government in any court or judicial authority.
He delegates his power to prosecution to his subordinate attorney in according the provision of the constitution.
Three tire Attorney Generals Office Structure :
Office of the Attorney General
Appellate Attorney Office (16)
District Attorney Office (75)
*
Recommended provisions in new constitution Recognized the rights as in Interim Constitution :
Relating to justice,
Against torture,
Against preventive detention,
Right to freedom
Recommended the victim rights:
Right to access information
Investigation
Proceedings of crime
Right to get rehabilitation and compensation. *
Legal Provisions of Criminal Justice System Crime Investigation
Prosecution of a case
Adjudication of a case
Appeal
Execution a Judgments
Penal laws and policy *
Investigation Police Register the Crime Information
Police Appoints Investigation Officer
Investigation officer
collect the evidence
Takes the picture of place of crime scene :
Collects finger print or footmark or any other important fact seen or found in the crime scene
Conduct the search and seizure
Sends the corps for autopsy *
May arrest the suspect by giving the notice explaining the cause of arrest.
Keeps suspect in detention up to twenty five days by the permission of the court (Drug case ninety days)
Examines evidences by a government legal practitioner or in laboratory
Take expert opinion
Ask legal advice with District Attorney
Takes the statement of the accused in the presence of District Attorney.
After completion of the investigation he produces the original file along with his opinion report of the investigation, to the District Attorney Office.
*
New provisions in the investigation Criminal Procedural Code Bill, 2011 proposed :
District Attorney can send back the application of crime information in case of denial of police for its registration by the concerned police office.
Suspect can be arrested only after the permission of the Court.
Police should produce detainee to the court through the Government Attorney for the permission to take in custody for more than twenty four hours.
The investigation officer should maintain the diary of investigation
Police can investigate without taking the custody in situation of :
Seven month pregnant woman
Minor
Elder above seventy five years
Provision of pending the illusive, false or fictitious information
Statement and inquiry through the video conference *
Prosecution Attorney General delegates his power of prosecution to his subordinate Attorneys
District Attorney decides whether to initiate a case or not
The approval of Appellate Attorney is necessary for not instituting the case,
Appellate Attorney can send back the case file for prosecution or reinvestigation if necessary
For the approval of District Attorneys decision, Joint Attorney submit the file to the Office of the Attorney General for the final approval to drop the case
After the decision is made to institute a case then District Attorney frame a charge sheet and file in the court. *
Proposed new provision in Prosecution Criminal Procedural Code Bill, 2011 proposed :
Provision of plea bargaining
Discount up to fifty percent off in punishment
Provision of close Petty offences
Provision of Additional Prosecution
Provision of amendment charge sheet *
Adjudication District Attorney institute a case in competent court or the judicial authority
District court is the court of first instance
After filing a case court will :
Take statement of accused if he produced along with the charge sheet
Court issues summon and warrant in the name of absconding accused *
Preliminary Hearing Court of first instance decides whether the accused is:
To keep in judicial custody or
Release him on bail or
Release on the commitment to present in the court on the date and time as stipulated by the court
Any party who are not satisfied such order may file an application in superior court *
Second hearing and examination of evidence Evaluate the investigation findings, charge sheet claim and statement of accused
Judge can decide a case immediately if accused accepts the prosecution charge
The court issues order to produce the evidence on disagreed points.
Police produces the prosecution witness and evidence through the Government Attorney
Government Attorney examine prosecution witness and cross the accused witness
Defense lawyer examine the defense witness and cross the prosecution witness *
Final Hearing The court prescribed the date for final hearing
After completion of testifying the evidences.
Prosecution lawyer and defense lawyer may defend their cause
Court delivers final judgment
Court take the written statement of accused that he has heard the final decision of the court *
Appeal First Appeal( Appeal Court)
Any parties who are not satisfied the decision of the court of first instance.
Party may file an appeal with in 70 days
Second Appeal (Supreme Court)
Punishment of Imprisonment 10 years or more or
Any case where the appellate court partially or fully reverse the decision of court of first instance, if :
There is a punishment of three years or more imprisonment or
Twenty five thousand rupees or more fine or
Clamant amount is fifty thousand rupees or more or
There is not disclose the claim amount *
Execution of Judgments The job of the execution of the judgment of each court is vested in the district court.
Court separately maintains the record in the name of convict includes;
Duration of imprisonment (start to end)
Amount of fine
Claimant amount
The amount of compensation
The release date of imprisonment *
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