Criminal Law and Criminal Procedure in Nepal: Investigation, Prosecution, and Trial

Introduction: The Modern Criminal Justice System in Nepal

Criminal law and procedure form the backbone of Nepal's justice system. Criminal law defines what conduct is prohibited (crimes), establishes liability for criminal conduct, and prescribes penalties. Criminal procedure governs how cases move through the system—from investigation through police and prosecution to trial, verdict, and appeal. Together, they determine how the state enforces laws against individuals suspected of criminal conduct, how rights of the accused are protected, and how justice is administered.

For centuries, Nepal's criminal justice system operated under the Muluki Ain (old legal code) and various ad hoc statutes. These systems were often opaque, procedurally inconsistent, and allowed considerable discretion to police and judges without adequate safeguards for accused persons' rights.

The Criminal Code 2074 (enacted on Magh 3, 2074 BS, equivalent to November 18, 2017 AD) and accompanying Criminal Procedure Code 2074 represented a comprehensive modernization. These codes were drafted with input from international experts, based on comparative criminal law from democracies worldwide, and designed to:

• Clearly define criminal offenses with principles of legality and proportionality;
• Protect rights of accused persons (right to counsel, right to fair trial, protection against self-incrimination);
• Establish clear procedures for investigation, prosecution, and trial;
• Ensure equality before law regardless of gender, caste, religion, or social status;
• Balance justice for crime victims with rights of the accused;
• Enable efficient, transparent administration of criminal justice.

Yet implementation remains uneven. Police investigations sometimes lack training and resources. Courts are overburdened with backlogs. Detention conditions may be harsh. Rights of the accused may be inadequately protected in practice, particularly in remote areas or for persons without financial means for legal representation.

For lawyers in Nepal—whether representing accused persons (defense counsel), acting as prosecutors, or working in law enforcement—understanding modern criminal law and procedure is essential. This guide provides comprehensive treatment of the criminal justice system in Nepal, enabling lawyers and legal professionals to navigate its complexities effectively.

Part 1: Foundational Concepts and Principles of Criminal Law

1.1 What Is Criminal Law?

Definition: Criminal law is the body of law defining conduct that the state prohibits (crimes) and establishing penalties for such conduct. Unlike civil law (which resolves disputes between private parties), criminal law involves the state as prosecutor.

Key Characteristics:

• Legality Principle: Conduct can be criminal only if it is prohibited by law before the conduct occurred. Ex post facto (retroactive) criminalization is prohibited;
• Guilt Standard: A person can be convicted of a crime only if the state proves guilt "beyond a reasonable doubt"—a very high standard;
• Intent Requirement: Most crimes require not only prohibited conduct but also intent (purposefulness, knowledge, recklessness, or negligence);
• Punishment: Conviction results in punishment—typically imprisonment, fines, or both—and carries social stigma;
• State as Prosecutor: The state (through a public prosecutor) brings cases, not the victim (though victims may participate).

1.2 Sources of Criminal Law in Nepal

Constitution of Nepal 2072:

• Establishes fundamental rights including right to fair trial, protection against torture, right to counsel;
• Prohibits punishment without law and ex post facto laws;
• Establishes principles of equality and non-discrimination.

Criminal Code 2074:

• Primary statutory source defining offenses;
• Organized into chapters by type of crime (crimes against the state, crimes against person, crimes against property, crimes against public order, etc.);
• Provides general principles of criminal liability, defenses, and sentencing.

Criminal Procedure Code 2074:

• Governs how criminal cases proceed;
• Establishes procedures for investigation, arrest, detention, bail, prosecution, trial, and appeal;
• Protects rights of accused persons.

Special Statutes:

• Specific crimes defined in separate statutes (drug laws, terrorism statutes, traffic laws, etc.);
• These special statutes supplement the Criminal Code.

Case Law and Judicial Interpretation:

• Supreme Court decisions interpreting the Codes;
• Lower court decisions establishing practice and precedent.

1.3 Principles of Criminal Responsibility

Actus Reus (Criminal Act): A crime requires a criminal act. This is the physical conduct constituting the crime. Examples:

• Theft: the act of taking property;
• Assault: the act of striking or touching another;
• Fraud: the act of making false representations.

Mens Rea (Criminal Intent): Most crimes also require criminal intent—the mental state of the perpetrator. The Criminal Code 2074 establishes several levels of intent:

• Purposefully (Intentionally): The person acts with the conscious objective of causing the prohibited result or knowing they will cause it;
• Knowingly: The person acts aware that their conduct is substantially certain to cause the prohibited result;
• Recklessly: The person acts aware of a substantial risk that the prohibited result will occur, but disregards that risk;
• Negligently: The person acts without awareness of a substantial risk, but a reasonable person would have been aware.

Different crimes require different levels of intent. Murder typically requires purposeful or knowing intent; negligent homicide requires only negligence.

Strict Liability: A few crimes do not require intent. These are "strict liability" crimes—liability attaches based on the act alone, regardless of intent. Examples might include certain traffic violations or regulatory offenses. Strict liability crimes are disfavored and interpreted narrowly.

Causation: A crime requires that the defendant's conduct caused the prohibited result. If a person strikes another, and the other person later dies from an unrelated cause, there is no causal connection for murder. Causation can be complex, particularly in cases involving multiple causes or intervening acts.

1.4 Elements of a Crime

Every crime has specific elements that the prosecution must prove. These elements vary by crime but typically include:

1. Actus Reus: The prohibited conduct;
2. Mens Rea: The required mental state;
3. Causation: A causal connection between conduct and result;
4. Result: The prohibited result (if the crime is defined by result);
5. Jurisdiction: The crime occurred within the jurisdiction of the court.

Burden of Proof: The prosecution bears the burden of proving every element of the crime beyond a reasonable doubt. If the prosecution fails to prove any element, the accused must be acquitted.

Part 2: Categories of Crimes and Specific Offenses

2.1 Crimes Against the State

Crimes against the state harm the sovereignty, security, or governmental functioning of Nepal.

Treason: Betraying Nepal or giving aid to enemies. Includes acts like disclosing state secrets, attempting to overthrow the government, or giving military information to hostile powers.

Sedition: Inciting rebellion or armed resistance against the state. This is a controversial crime historically used to suppress dissent. Modern law attempts to narrowly define it to protect legitimate political expression while preventing actual incitement to violence.

Espionage: Obtaining state secrets with intent to harm Nepal or benefit a foreign power.

Terrorism: Acts of violence intended to coerce the government or intimidate the public. Nepal has a separate Terrorism Act defining terrorist conduct and establishing severe penalties.

2.2 Crimes Against the Person

These crimes harm individual persons' safety, bodily integrity, and freedom.

Murder and Manslaughter:

• Murder: Purposeful killing of another. Includes killing with knowledge that the act is substantially certain to cause death or with extreme recklessness;
• Manslaughter: Killing without the required intent for murder. May result from recklessness or negligence;
• Penalties: Murder carries severe penalties (life imprisonment or in some cases death, though capital punishment is not currently applied in Nepal).

Assault and Battery:

• Assault: Creating in another person a fear of imminent bodily harm;
• Battery: Intentionally touching another in an offensive manner or causing bodily harm;
• Penalties: Vary based on severity (minor injury vs. serious bodily harm).

Sexual Offenses:

• Rape: Non-consensual sexual intercourse. Modern law recognizes that force, threat, fraud, or exploitation of incapacity can constitute rape;
• Sexual Assault: Non-consensual sexual touching or conduct;
• Child Sexual Abuse: Sexual conduct with a child;
• Penalties: Severe penalties including long imprisonment.

Kidnapping and Abduction: Unlawfully taking a person away from their usual place. Includes parent's unlawful taking of a child in custody disputes.

False Imprisonment/Unlawful Restraint: Unlawfully restraining another's liberty.

Threatening and Intimidation: Making threats of violence or harm with intent to coerce or intimidate.

2.3 Crimes Against Property

These crimes harm property interests.

Theft: Unlawfully taking property with intent to deprive the owner of possession. Theft requires intent to permanently deprive (not temporary borrowing).

Robbery: Theft accomplished by force, threat, or intimidation. Robbery is more serious than theft because it involves threat to the person.

Burglary: Unlawfully entering a building with intent to commit theft or other felony inside.

Fraud and Forgery:

• Fraud: Obtaining property or services through false representations or deception;
• Forgery: Falsifying documents or signatures.

Embezzlement and Misappropriation: Unlawfully taking property entrusted to one's care. Often applies to employees or officials with access to property.

Arson: Intentionally burning property, particularly buildings. Arson endangers lives and is treated seriously.

2.4 Crimes Against Public Order

These crimes harm public order, safety, or morality.

Prostitution and Related Offenses: Laws prohibiting prostitution exist, though enforcement varies. Trafficking in persons for sexual exploitation is a serious crime.

Drug Offenses: Nepal has strict drug laws. Offenses include possession, sale, trafficking, and manufacturing of illegal drugs. Penalties are severe, particularly for trafficking.

Public Disorder: Inciting riots, unlawful assembly, or violent public disturbance.

Obstruction of Justice: Interfering with a criminal investigation or trial, such as intimidating witnesses, destroying evidence, or lying to authorities.

2.5 Defenses to Criminal Charges

Even if the prosecution proves the elements of a crime, an accused may be acquitted if a valid defense applies.

Complete Defenses (resulting in acquittal):

• Self-Defense: Using reasonable force to protect oneself from imminent harm. The force used must be proportional to the threat;
• Defense of Others: Using reasonable force to protect another from imminent harm;
• Defense of Property: Using reasonable force to prevent theft or damage to property (though force causing serious injury is rarely justified);
• Necessity: Acting to prevent greater harm (e.g., driving without license to escape danger);
• Duress: Acting under threat of imminent death or serious harm;
• Insanity: Lacking mental capacity to understand the nature of conduct or control behavior. Insane persons are typically committed to mental institutions rather than imprisoned;
• Automatism: Acting involuntarily (sleepwalking, seizure, etc.);
• Mistake of Fact: Mistakenly believing facts that would make conduct lawful (e.g., mistaking another's car for one's own);
• Mistaken Belief of Law: Generally not a defense, but if a defendant reasonably relied on erroneous legal advice, courts may consider it;
• Consent: In some offenses, victim's consent is a defense (though consent is not valid for serious crimes like murder or sexual assault of minors).

Partial Defenses (reducing culpability):

• Provocation: Acting in immediate response to serious provocation (reduces murder to manslaughter);
• Diminished Capacity: Mental illness or intoxication reducing (but not eliminating) capacity;
• Intoxication: Involuntary intoxication may reduce culpability; voluntary intoxication generally does not.

Part 3: Criminal Investigation and Police Powers

3.1 Criminal Investigation—Initial Stages

Reporting of Crime: A crime is typically discovered when:

• The victim reports it to police;
• A witness reports it;
• Police discover evidence of crime;
• A person confesses to police.

First Information Report (FIR): When a crime is reported to police, an officer prepares a First Information Report (FIR), which documents:

• Date, time, and location of crime;
• Name of victim and accused (if known);
• Description of alleged crime;
• Officer's name and unit.

The FIR initiates the investigation. In theory, police are required to register any report of a cognizable offense (serious crime). However, in practice, police sometimes refuse to register complaints if they believe the matter is "trivial" or a "civil dispute."

Investigation Process: Police conduct investigation to:

• Interview victims and witnesses;
• Inspect the crime scene;
• Collect physical evidence;
• Examine documents;
• Question the accused;
• Gather evidence to support or contradict the report.

3.2 Police Powers and Limitations

Authority to Investigate: Police have authority to investigate cognizable offenses (serious crimes). For non-cognizable offenses (minor offenses like simple quarrels), police typically require court authorization before investigating.

Search and Seizure: Police can search persons, property, and premises to gather evidence. However, search power is limited:

• Police should have reasonable suspicion that evidence is present;
• Search must be reasonable (not arbitrary or unnecessarily invasive);
• Warrant is required except in emergency circumstances;
• Seized items must be properly documented and preserved as evidence.

Interrogation and Confession: Police can question suspects about the crime. However:

• The suspect has a right to remain silent;
• The suspect has a right to counsel;
• Confessions obtained through coercion, torture, or abuse are inadmissible;
• Police cannot use physical violence or threats;
• Confessions must be documented and verified.

Protection Against Torture: The Constitution and international treaties prohibit torture. Police cannot:

• Use physical violence;
• Threaten violence;
• Deny food, water, sleep, or medical care;
• Use psychological manipulation;
• Hold in incommunicado detention (isolation without contact).

If police violate these protections, evidence obtained is inadmissible, and police can face criminal charges.

3.3 Arrest and Initial Detention

Authority to Arrest: Police can arrest a person suspected of a cognizable offense based on:

• Arrest warrant from a court;
• Reasonable belief that the person committed the offense (without warrant in urgent circumstances);
• Reasonable belief that the person will flee or commit another offense if not arrested.

Arrest Procedure: When arresting a person, police must:

• Identify themselves and state the reason for arrest;
• Use only necessary force;
• Respect the person's dignity;
• Inform the person of their rights.

Rights Upon Arrest: A person arrested has immediate rights:

• Right to be informed of the reason for arrest;
• Right to medical examination (if injured);
• Right to counsel;
• Right to inform family of arrest;
• Right against torture or coercion.

Documentation of Arrest: Police must prepare and maintain records:

• Arrest report;
• Detention register (documenting date, time, reason for detention);
• Property inventory (items taken from the arrested person).

3.4 Police Custody and Initial Questioning

Duration of Police Custody: After arrest, police can hold a person in custody for a limited time (typically 24-48 hours) before presenting them to court. The exact duration varies by jurisdiction. This is police custody, not imprisonment.

During Police Custody:

• Police can question the suspect;
• Medical examination can be conducted (with consent or court order);
• Physical evidence can be collected;
• Investigative procedures can be conducted.

Interrogation Rights: While in police custody, the suspect:

• Has a right to counsel;
• Can refuse to answer questions (right to silence);
• Cannot be coerced or tortured;
• Must be informed of rights;
• Should be presented to a court within the custody period.

Confessions During Police Custody: Confessions given during police custody are treated with skepticism by courts because of the inherent coercive nature of police custody. For a confession to be valid:

• It must be voluntary;
• It must be recorded or documented;
• It should be verified through investigation;
• It should not be the sole evidence of guilt.

Part 4: Bail and Detention Pending Trial

4.1 The Right to Bail

Constitutional Right: Every arrested person has a right to bail (release pending trial) except in limited circumstances. Bail is a critical protection against indefinite detention of unconvicted persons.

Purpose of Bail: Bail serves to:

• Ensure the accused appears for trial;
• Prevent flight from jurisdiction;
• Protect public safety;
• Allow the accused to prepare a defense while free.

Types of Release:

Release on Personal Recognizance: The accused is released on their promise to appear for trial, without posting bail.

Bail Bond: The accused posts money or property with the court as security. If the accused appears for trial, bail is returned; if they flee, bail is forfeited.

Surety Bond: A third party (surety) guarantees the accused's appearance by posting bond and promising to produce the accused.

Conditions of Bail: Bail can be granted subject to conditions such as:

• Reporting to police regularly;
• Surrendering passport;
• Remaining within jurisdiction;
• Prohibition on contact with witnesses or victim;
• Prohibition on possessing weapons;
• Drug testing or treatment.

4.2 Factors in Bail Determination

Courts consider multiple factors in deciding whether to grant bail and what conditions to impose:

Severity of Offense: Serious crimes (murder, rape, terrorism) make bail less likely or conditions more stringent.

Strength of Prosecution's Case: If the prosecution has strong evidence of guilt, the risk of flight increases, making bail less likely.

Prior Criminal History: If the accused has prior convictions or has previously violated bail conditions, bail is less likely.

Ties to the Community: Strong ties (family, employment, property) suggest the accused will appear. Weak ties suggest flight risk.

Danger to Public or Witnesses: If the accused poses a danger to public or witnesses, bail may be denied or heavily conditioned.

Flight Risk: If the accused has means to flee (wealth, travel documents) and motive (serious charges), bail may be denied.

Nature and Seriousness of Bail Conditions: Courts balance:

• Ensuring appearance (tight conditions);
• Allowing freedom pending trial (loose conditions).

4.3 Denying Bail—Detention Pending Trial

When Bail Can Be Denied: In limited circumstances, an accused can be held without bail pending trial:

• For very serious crimes (murder, terrorism);
• If the evidence is overwhelming;
• If the person poses serious danger to public;
• If the person has high flight risk and cannot be secured by conditions.

Preventive Detention Issues: Holding a person without bail pending trial raises human rights concerns:

• The person is detained despite not being convicted;
• Prolonged detention can exceed any eventual sentence;
• Detention conditions can be harsh;
• The person loses income and employment;
• The person's family is disrupted.

Bail Review: An accused detained without bail can request bail review. Circumstances can change (better evidence of ties to community, changed risk assessment), and bail may later be granted.

4.4 Bail Violations and Consequences

Violation of Bail Conditions: If an accused violates bail conditions (fails to appear, contacts witnesses, etc.), the accused can be arrested and bail can be forfeited.

Consequences:

• Bail money is forfeited to the state;
• Surety may be liable for bail amount;
• Accused is re-detained;
• Conduct at trial may be prejudiced by bail violation.

Part 5: Prosecution and Charging

5.1 The Prosecutor's Role

Public Prosecution: In Nepal, criminal cases are prosecuted by the Public Prosecutor's Office (part of the government). A Public Prosecutor (government attorney) represents the state and conducts the prosecution.

Prosecutorial Discretion: The prosecutor has significant discretion in:

• Deciding whether to prosecute;
• What charges to bring;
• Whether to negotiate plea agreements;
• What evidence to present at trial.

Victim's Role: In Nepal's system, the victim does not directly prosecute but can:

• Provide statement to prosecutor;
• Attend trial and provide testimony;
• Provide input on prosecution decisions (though prosecutor retains final authority).

5.2 Charging Decision

Investigation Report Submission: After completing investigation, police submit the investigation report to the prosecutor.

Prosecutor Review: The prosecutor reviews the investigation report to determine whether:

• Sufficient evidence exists to prove guilt beyond a reasonable doubt;
• The evidence is admissible;
• Proper procedures were followed;
• The crime is proven.

Decision to Prosecute: The prosecutor can:

• Prosecute: File a charge and proceed to trial;
• Not Prosecute: Decline to prosecute due to insufficient evidence, or exercise prosecutorial discretion;
• Investigate Further: Request police conduct additional investigation;
• Divert: Offer alternative disposition (diversion to community programs, mediation).

Standard for Prosecution: The prosecutor should prosecute if there is probable cause (reasonable grounds to believe the accused committed the crime). The prosecution standard is lower than the trial standard (beyond reasonable doubt), but the prosecutor should not prosecute cases with insufficient evidence.

5.3 Formal Charging

Charge Sheet: If the prosecutor decides to prosecute, a formal charge sheet is filed with the court. The charge sheet includes:

• Identity of accused;
• Description of alleged crime and specific provisions violated;
• Facts alleged;
• Evidence supporting the charge;
• Prosecutor's signature.

Summons or Arrest Warrant: Along with the charge sheet, the prosecutor requests that the court:

• Issue a summons requiring the accused to appear;
• Issue an arrest warrant if the accused is not in custody;
• Set conditions for release (bail, conditions).

Initial Appearance: The accused is brought before a court (the next business day or within a few days). At this appearance:

• The charge is read to the accused;
• The accused is informed of the right to counsel;
• Bail is considered;
• The case is scheduled for trial.

5.4 Plea Bargaining and Diversion

Plea Bargaining: The prosecutor and defense can negotiate a plea agreement where:

• The accused agrees to plead guilty to a reduced charge;
• The prosecutor recommends a reduced sentence;
• The accused avoids trial and the risk of harsher sentence.

Plea bargaining is not expressly provided for in all Nepali statutes but is practiced in reality and is increasingly recognized.

Diversion: For minor offenses or first-time offenders, the prosecutor can divert the case to alternative programs:

• Community service;
• Counseling or rehabilitation;
• Mediation;
• Conditional discharge.

If the accused successfully completes the diversion program, the charge is dismissed.

Part 6: Trial Procedures and Rules of Evidence

6.1 Structure of a Criminal Trial

Bail Continued: The accused continues on bail (or in custody) while awaiting trial. The trial can occur months or years after charging, depending on court backlog.

Pre-Trial Procedures: Before trial:

• The prosecutor and defense exchange information (discovery);
• Pretrial motions may be filed (motions to suppress evidence, dismiss charges, etc.);
• The court may hold pretrial conferences to narrow issues.

Trial Stages:

1. Opening Statements: The prosecutor and defense make opening statements summarizing their cases.

2. Prosecution Case: The prosecutor presents evidence through:

• Witness testimony;
• Physical evidence (documents, weapons, etc.);
• Expert testimony;
• Video or audio evidence.

3. Cross-Examination: The defense cross-examines the prosecutor's witnesses to challenge their credibility or testimony.

4. Prosecution Rests: After the prosecutor has presented all evidence, the prosecution rests.

5. Defense Case: The defense presents evidence. The accused can testify or remain silent (right against self-incrimination). The defense can present:

• Accused's testimony;
• Defense witnesses;
• Physical evidence;
• Expert testimony.

6. Prosecutor's Rebuttal: The prosecutor can present evidence rebutting the defense case.

7. Closing Arguments: Both prosecutor and defense make closing arguments summarizing the evidence and law.

8. Jury Instructions or Legal Instructions: If a jury is present, the judge instructs on applicable law. If no jury, the judge considers the law.

9. Verdict: The judge (or jury) determines guilt or innocence.

6.2 Jury vs. Judge Trials

Right to Jury Trial: The accused has a right to trial by jury in serious cases. However, in Nepal, jury trials are not common; most cases are tried by judges.

Judge Trial: The judge acts as both fact-finder (determining guilt or innocence based on evidence) and legal interpreter (applying law). This is the standard in Nepal.

Jury Trial: A jury (group of citizens) acts as fact-finder; the judge acts as legal interpreter. Juries are used in limited circumstances and are controversial.

6.3 Rules of Evidence

Admissibility Standard: Evidence is admissible if:

• It is relevant (has a tendency to prove or disprove a fact of consequence);
• It is not excluded by law;
• Its probative value is not substantially outweighed by risk of unfair prejudice or other dangers.

Types of Evidence:

Testimonial Evidence: Witness testimony. The witness swears to tell the truth and testifies about their knowledge.

Physical Evidence: Objects (weapon, stolen property, documents) brought into court. Physical evidence must be identified (shown to be the object involved in the crime) and authenticated (shown to be genuine).

Documentary Evidence: Written documents (letters, records, reports). Documents must be authenticated (shown to be genuine) before admission.

Expert Testimony: Testimony by a qualified expert on technical or specialized matters (fingerprints, DNA, medical condition, mental capacity). Expert must be shown to be qualified, and methodology must be accepted in the field.

Demonstrative Evidence: Items created to illustrate testimony (diagrams, models, photos). These help the fact-finder understand evidence but are not direct evidence of the fact.

Exclusions from Evidence:

Hearsay: A statement made by a person not in court, offered to prove the truth of the statement, is generally hearsay and inadmissible. Exceptions exist for certain statements (excited utterances, statements against interest, dying declarations).

Privilege: Certain communications are privileged and cannot be compelled:

• Attorney-client privilege (communications between lawyer and client);
• Spousal privilege (communications between spouses);
• Priest-penitent privilege (communications with clergy);
• Physician-patient privilege (medical information).

Illegally Obtained Evidence: Evidence obtained through torture, coercion, illegal search, or violation of rights is inadmissible (exclusionary rule).

Character Evidence: Evidence of the accused's prior crimes or bad character is generally inadmissible to show the accused committed the charged crime. Limited exceptions exist (pattern of conduct, impeachment of credibility).

Victim Impact: Evidence about harm to victims can be presented, particularly during sentencing.

6.4 Burden of Proof and Standards

Prosecution's Burden: The prosecution bears the burden of proving guilt beyond a reasonable doubt. This is a high standard—the fact-finder must be convinced to a very high degree of certainty.

Presumption of Innocence: The accused is presumed innocent until proven guilty. The burden is on the prosecution; the accused need not prove innocence.

Right to Remain Silent: The accused has a right not to testify. Silence cannot be used against the accused.

Reasonable Doubt: If, after considering all evidence, the fact-finder has reasonable doubt about guilt, the accused must be acquitted. Reasonable doubt is not mere speculation but doubt based on reason and common sense applied to the evidence.

Part 7: Verdict, Sentencing, and Appeals

7.1 Verdict and Acquittal/Conviction

Verdict Determination: After trial, the judge (or jury) determines guilt or innocence based on evidence.

Acquittal: If the judge finds the prosecution has not proven guilt beyond a reasonable doubt, the accused is acquitted. Acquittal is final; double jeopardy protections prevent retrial after acquittal.

Conviction: If the judge finds the prosecution has proven guilt beyond a reasonable doubt, the accused is convicted.

Verdict Requirements: The verdict should:

• Be based on evidence presented at trial;
• Apply the law correctly;
• Be clear and definite (guilty or not guilty, not "partially guilty").

7.2 Sentencing

Sentencing Hearing: If the accused is convicted, a sentencing hearing is held where:

• The prosecution presents aggravating factors;
• The defense presents mitigating factors;
• The judge considers relevant factors and determines sentence.

Sentencing Factors:

Aggravating Factors (increasing sentence):

• Severity of the crime;
• Injury caused to victim;
• Use of weapons or violence;
• Vulnerable victims (children, elderly);
• Prior criminal history;
• Lack of remorse;
• Particular cruelty or depravity.

Mitigating Factors (decreasing sentence):

• First-time offender;
• Young age of offender;
• Mental illness or diminished capacity;
• Remorse and acceptance of responsibility;
• Cooperation with authorities;
• Family hardship from incarceration;
• Offender's difficult background;
• Rehabilitation potential.

Sentencing Options:

Imprisonment: The offender is sentenced to a term in prison. Duration varies (months to life) based on the crime and factors above.

Fine: The offender pays a monetary penalty to the state.

Probation or Conditional Discharge: The offender is released but must comply with conditions (reporting, treatment, etc.). If conditions are violated, the offender can be imprisoned.

Community Service: The offender performs unpaid work for the community.

Restitution: The offender pays the victim for harm caused (medical bills, lost property, etc.).

Combination: The judge can combine penalties (imprisonment plus fine, imprisonment plus restitution).

Sentencing Guidelines: The Criminal Code 2074 provides sentencing ranges for crimes. Judges have discretion within the range but should justify sentences outside the range.

7.3 Appeals

Right to Appeal: Both the accused and the prosecution have a right to appeal conviction to a higher court. This right is fundamental to justice.

Appellate Procedure:

Notice of Appeal: The party appealing files notice of appeal within a specified time (typically 35 days after verdict).

Grounds for Appeal: Appeals can be based on:

• Legal error (misapplication of law);
• Evidentiary error (admission of inadmissible evidence, exclusion of admissible evidence);
• Procedural error (violation of trial procedures);
• Insufficient evidence;
• Excessive or inadequate sentence.

Appellate Review: The appellate court reviews the record and considers whether errors occurred that affected the verdict or sentence. The appellate court can:

• Affirm the conviction;
• Reverse and acquit;
• Reverse and remand for new trial;
• Affirm conviction but modify sentence.

Appellate Standards:

• Legal errors are reviewed for "clear error";
• Evidentiary issues are reviewed for abuse of discretion;
• Factual findings may be reviewed for clear error.

Appeal to Supreme Court: If appealed conviction is affirmed by the appellate court, the accused can petition the Supreme Court to hear the case. The Supreme Court has discretion to accept or reject cases. This is a further check on injustice and ensures consistency in application of law.

Part 8: Criminal Defense and Procedural Rights

8.1 Right to Counsel

Constitutional Right: Every accused has a constitutional right to counsel (legal representation). This is a fundamental protection because:

• Criminal law is complex;
• Individuals cannot adequately defend themselves without legal expertise;
• The prosecution has resources and expertise;
• Counsel levels the playing field.

Types of Counsel:

Retained Counsel: The accused hires and pays a private lawyer.

Appointed Counsel: For accused who cannot afford counsel, the court appoints a public defender or private lawyer paid by the state. The accused must establish inability to afford counsel.

Timing: Counsel should be provided from the initial arrest or custody onward, not just at trial.

8.2 Procedural Rights of the Accused

Right to Silence: The accused has a right not to incriminate themselves. This includes:

• Right not to confess;
• Right not to answer questions;
• Right not to testify at trial;
• Silence cannot be used against the accused.

Right to Confront Witnesses: The accused has a right to confront (cross-examine) prosecution witnesses. This protects against false or exaggerated testimony.

Right to Present Evidence: The accused has a right to present defense evidence and call witnesses.

Right to Fair Trial: The accused has a right to a fair, impartial trial before a neutral judge (or jury). This includes:

• Trial without undue delay;
• Adequate time to prepare;
• Public trial (justice must appear to be done);
• No punishment until convicted.

Protection Against Double Jeopardy: After acquittal, the accused cannot be retried for the same crime. After conviction and sentence, the accused cannot be punished twice for the same conduct.

Right to Appeal: As discussed, the accused has a right to appeal.

8.3 Defenses and Defense Strategy

Investigating the Defense Case: An effective defense requires:

• Interviewing the client extensively;
• Interviewing defense witnesses;
• Gathering documents and physical evidence;
• Challenging the prosecution's evidence;
• Developing alternate theories of what occurred.

Common Defenses: As discussed earlier, defenses include self-defense, defense of others, necessity, duress, insanity, mistake, and others.

Challenging Evidence: Effective defense involves:

• Cross-examining prosecution witnesses to expose weaknesses;
• Challenging forensic evidence methodology;
• Suppressing illegally obtained evidence;
• Impeaching witness credibility;
• Presenting expert testimony contradicting prosecution experts.

Negotiating: In many cases, negotiating a plea agreement may serve the client's interests better than trial, particularly if evidence is strong and the trial would expose the client to harsh sentence.

8.4 Plea Agreements

Structure: A typical plea agreement involves:

• Accused pleads guilty to a charge (or reduced charge);
• Prosecutor recommends a reduced sentence;
• Judge can accept or reject the agreement.

Advantages to Accused:

• Avoids risk of conviction on more serious charges;
• Potentially results in lighter sentence than trial might impose;
• Avoids stress and publicity of trial;
• Accelerates resolution.

Advantages to Prosecutor:

• Certainty of conviction (avoids trial risk);
• Resources for other cases;
• Victim and witnesses avoid testifying.

Requirements for Valid Plea:

• Accused must understand the charge and consequences;
• Plea must be voluntary (not coerced);
• Counsel should advise on advisability of plea;
• Judge should assure the plea is knowing and voluntary.

Withdrawn Plea: In limited circumstances, a defendant can withdraw a guilty plea (before sentencing or shortly after).

Part 9: Special Procedural Issues

9.1 Speedy Trial and Adjournment

Right to Speedy Trial: The accused has a right to trial without undue delay. Excessive delay violates rights and can prejudice the defense.

Delay Factors:

• Court backlog (beyond parties' control);
• Prosecution seeking adjournment;
• Defense seeking adjournment;
• Witness availability.

Consequences of Delay:

• Memories fade;
• Witnesses become unavailable;
• Defense evidence is lost;
• Accused remains under suspicion or in custody;
• Case may be dismissed for excessive delay.

9.2 Confidentiality and Privacy

Court Records: Court proceedings are generally public (justice must appear to be done), but some records are confidential:

• Sealed records (witness protection, state secrets);
• Juvenile records;
• Medical or psychological records.

Media and Publicity: A balance exists between public right to know and fair trial. Courts can:

• Issue gag orders restricting media statements;
• Close courtroom to media in sensitive cases;
• Protect witnesses' identities.

9.3 Victim Rights and Participation

Victim Statement: Victims can provide statements to prosecutors and courts about:

• How the crime affected them;
• Impact on family and livelihood;
• Safety concerns;
• Preferences regarding sentencing.

Victim in Court: Victims can attend trial and provide testimony. Victims may also receive:

• Compensation;
• Restitution from offender;
• Victim support services.

9.4 International Elements

Extradition: If the accused flees to another country, that country can extradite them back to Nepal if:

• An extradition treaty exists;
• The crime is recognized in both countries;
• Procedures are followed.

International Crimes: Nepal recognizes jurisdiction over certain international crimes (terrorism, human trafficking, war crimes) even if committed abroad.

Part 10: Practical Guide for Criminal Lawyers

10.1 Defense Counsel's Responsibilities and Strategy

Client Relationship:

• Establish confidential relationship and trust;
• Explain the legal process and options;
• Advise on risks and benefits of various approaches;
• Zealously represent the client within legal bounds.

Case Investigation:

• Interview client thoroughly (avoid leading questions);
• Interview potential defense witnesses;
• Gather documentary evidence;
• Inspect crime scene or location if relevant;
• Obtain police investigation file;
• Review all prosecution evidence.

Challenging Prosecution Evidence:

• Identify weaknesses or inconsistencies;
• File motions to suppress illegally obtained evidence;
• File motions to exclude hearsay or other improper evidence;
• Develop cross-examination strategy;
• Prepare expert rebuttal if needed;
• Preserve issues for appeal.

Defending Trial:

• Prepare opening statement;
• Cross-examine prosecution witnesses effectively;
• Present defense case (witnesses, evidence);
• Prepare closing argument;
• Request proper jury instructions (if applicable).

Post-Conviction:

• Preserve issues for appeal;
• Advise on appeal options;
• If appealing, brief appellate arguments;
• Represent at sentencing hearing;
• Consider post-conviction relief motions.

10.2 Prosecution's Responsibilities and Ethics

Dual Role: The prosecutor serves both as an advocate for the state and as an officer of the court with duties to ensure justice.

Ethical Obligations:

• Do not prosecute cases without probable cause;
• Disclose exculpatory evidence to the defense;
• Not suppress evidence favorable to the accused;
• Not present false evidence;
• Not encourage perjury;
• Not make inflammatory statements;
• Comply with discovery rules.

Prosecution Strategy:

• Ensure thorough investigation by police;
• Build strong case with evidence and witnesses;
• Assess evidence strength and charge appropriately;
• Consider victim's interests and public interest;
• Negotiate plea when appropriate;
• Present compelling case at trial if needed.

10.3 Evidence Preparation and Presentation

Evidence Gathering:

• Preserve chain of custody for physical evidence;
• Document all evidence (photos, inventory, storage);
• Obtain expert evaluations if needed;
• Secure witness statements;
• Obtain documentary evidence.

Expert Witnesses:

• Determine if expert needed;
• Retain qualified expert;
• Brief expert on case and evidence;
• Prepare expert report;
• Prepare for cross-examination;
• Coordinate expert testimony at trial.

10.4 Trial Preparation and Courtroom Strategy

Organization:

• Organize evidence logically;
• Prepare exhibits and demonstrative aids;
• Create witness lists with contact information;
• Prepare witness outlines for examination;
• Draft opening and closing statements;
• Prepare legal arguments and motions.

Courtroom Demeanor:

• Professional, respectful conduct;
• Clear, organized presentation;
• Responsive to judge's questions;
• Ethical conduct (no deception or improper tactics);
• Effective communication with jury or judge.

Conclusion: The Criminal Justice System as Foundation of Rule of Law

The criminal justice system in Nepal, as reformed through the Criminal Code 2074 and Criminal Procedure Code 2074, represents a significant step toward modern, fair administration of criminal justice. The codes embody principles of rule of law, due process, and protection of fundamental rights.

Yet implementation challenges persist. Courts remain backlogged. Resources for defense counsel and investigation are limited. Training of police and prosecutors is ongoing. Attitudes among some judicial officers toward the rights of the accused remain outdated.

For lawyers in Nepal, whether in criminal defense or prosecution, the challenge is to work within this evolving system while:

• Upholding principles of fair trial and due process;
• Protecting rights of the accused while ensuring public safety;
• Serving clients or public interest zealously but ethically;
• Contributing to a system of justice that is fair, transparent, and effective;
• Continuing to advocate for improvements in implementation and resources.

The criminal justice system serves fundamental purposes: protecting public safety, holding wrongdoers accountable, deterring crime, and protecting individual rights. When functioning well, it achieves these purposes. When functioning poorly, it harms innocent persons and fails to protect the public. Lawyers are essential actors in ensuring that the system functions fairly and effectively.