Unit 1 General Introduction to Criminal Law
Definition of Criminal Law
Society is dynamic, which leads to various activities within it. It is the responsibility of the state to provide peace and security over these activities. Humans must be allowed to live freely. Regarding their fundamental rights and human rights, they must fulfill their rights and duties without hesitation. In this way, various activities must operate legally. Society must run in an orderly manner. The law that binds those who do not comply with the rules and delivers justice to the victim is Criminal Law. Criminal Law is the law that controls, regulates, and manages criminal behavior.
According to Dr. Gopal Sharma, "Criminal law refers to that branch of national public law under which certain specific actions are defined as crimes, banned on the basis of severe punishment, and various punishments are determined for those who commit such actions. Or, the law related to the control and prevention of crime is criminal law."
According to Top Bahadur Singh, "The branch or division of law that makes provisions regarding crimes and the punishment for crimes, defines various crimes, and provides for prevention and punishment is criminal law."
The characteristics of Criminal Law are as follows:
1. Politicality
2. Specificity
3. Uniformity
4. Penal Section
Nature of Criminal Law
1. Criminal law is a part of substantive law.
2. Criminal law covers everything from punishment for the offender to rehabilitation and socialization.
3. Criminal law can be classified into two types according to the nature of the crime: state-prosecuted criminal offenses and individual-prosecuted criminal offenses.
4. Criminal law is an important branch of public law.
5. Criminal law is dynamic/changeable in nature.
6. Criminal law is related to crime, criminals, and punishment.
7. Criminal law is not retrospective (ex-post facto).
8. Criminal law is related to human life and property.
9. There is strictness in the interpretation of criminal law.
10. Only the legislature can create criminal law.
Classification of Crime on the Basis of Principle of Criminal Liability
1. Crimes of relative liability
2. Crimes of strict liability
Ignorance of Law is Not Excusable (Ignorantia juris non excusat)
The main implication of this Latin phrase (Ignorantia juris non excusat) is not that every citizen must know the law, but rather that everyone must obey it. It means one must accept the consequences arising from it. Ignorance of fact is excused because it results in the absence of a criminal intent (mens rea), which is an essential element of a crime. This [ignorance of fact] is not applicable in crimes of strict liability, but ignorance of law is never excusable. Society is dynamic, which leads to various activities within it. It is the responsibility of the state to provide peace and security over these activities. Humans must be allowed to live freely. Regarding their fundamental rights and human rights, they must fulfill their rights and duties without hesitation. In this way, various activities must operate legally. Society must run in an orderly manner. The law that binds those who do not comply with the rules and delivers justice to the victim is Criminal Law. Criminal Law is the law that directs, controls, regulates, and manages criminal behavior.
To look at an example regarding how ignorance of law is not excusable, if a police inspector arrests and takes action against someone who committed assault, mistakenly believing they had the personal authority to make the arrest, they cannot be excused for this mistake of law because the legal provision dictates that assault cases are private-party cases (Duniya-badi) and must be filed directly in court. Section 8 of the National Penal (Code) Act, 2017 contains provisions regarding this.
An Act Not Mentioned in Law is Not a Crime (Nullum crimen sine lege)
Generally, committing an act forbidden by law or failing to perform an act mandated by law is a crime. If a matter is not declared a crime in law, such an act is not considered a crime; the authority to determine whether something is a crime or not rests with the legislature. The principles establishing that there is no crime without a clear violation of law are as follows:
- Criminal law must be determined by general rules,
- No one should be punished unless those rules are violated,
- Criminal law must be interpreted strictly, and
- Criminal law must not be retrospective (retroactive).
Countries that have established the rule of law adopt this principle in criminal law. Only the legislature has the authority to clearly specify which acts constitute a crime and which do not. In other words, only the legislature can define a crime. An act cannot be considered a crime unless the criminal law explicitly declares it to be one.
No punishment is handed down for performing acts other than those declared as offenses by the legislature itself. This is known in Latin as Nullum crimen sine lege (No crime without law). The court does not hold the authority to declare whether an act is a crime or not, nor can it amend existing punishments by increasing or decreasing them. Doing so would contradict the principle of separation of powers. Section 7 of the National Penal (Code) Act, 2017 contains provisions regarding this.
No Punishment Without Law
The law clearly defines how much punishment an offender must bear for a specific act. Punishment must be issued according to the provisions present in the relevant law for that offense. Looking at Supreme Court rulings, an offender must be punished under the procedure established by law, and such punishment must not exceed the limits determined by law.
If the law does not explicitly provide for a penalty or punishment for committing or failing to commit an act, this principle maintains that no one can be punished for the act they did or did not perform. An act cannot be considered a crime unless the criminal law explicitly declares it to be one. No one can be punished by treating an act as a crime until the law explicitly declares that act as an offense. Section 7 of the National Penal (Code) Act, 2017 contains provisions regarding this.
Principle against Retrospective (Retroactive) Criminal Law (Principle of Ex-post facto law)
Article 15(1) of the ICCPR states that if an act or omission did not constitute a criminal offense under national or international law at the time it was committed, no person [shall be held guilty], nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed.
This principle creates a complete prohibition on the enactment of retrospective laws. If the legislature strips away or harms rights acquired under previous laws, creates new liabilities, imposes new burdens, or creates new disqualifications on past transactions or benefits already received, such legislation is called retrospective legislation. Provisions have been made in Nepal ensuring that no person shall be punished for an act which was not punishable by the law in force at the time the act was committed, nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the offense.
No Double Punishment for the Same Offense (Principle of Double Jeopardy)
This principle means that no person shall be prosecuted or punished more than once for the same offense. According to Article 14(7) of the ICCPR, no one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The principle of double jeopardy is one of the various universally accepted principles of criminal law. In constitutional law, it is established under the name "Principle of Double Jeopardy." It establishes the norm that a person should not be punished more than once for the same offense. No one should be harassed twice for the same cause. If a person is charged and tried once in court and is acquitted, they cannot be prosecuted again on the same charge. No person shall be prosecuted and punished more than once for the same offense. Article 20(6) of the Constitution of Nepal, under the right relating to justice, provides this protection. For this principle of double jeopardy to apply, three conditions are mandatory. Section 9 of the National Penal (Code) Act, 2017 contains provisions regarding this:
1. The decision must be made by a competent authority.
2. The decision must be final.
3. The decision must be fair.
Crime Dies with the Criminal
In criminal law, if the person who committed a crime dies, the punishment imposed on that offender does not have to be borne by any other person, which is why it is said that the crime dies along with the criminal.
If a person accused in a criminal case dies after the case has been decided, provisions regarding the remission of the fine or imprisonment imposed on them are found in No. 3 of the Chapter on Punishment of the old Muluki Ain (Civil Code). According to No. 136 of the Chapter on Court Procedure (Adalati Bandobast), if a person accused in a case dies before the verdict is reached, no blame or liability attaches to the deceased.
If a person who violated criminal law and committed an offense dies, it means that the crime automatically vanishes along with the deceased. The implication that the crime ends with the deceased is that the liabilities created from the crime. Once the existence of the person who must bear criminal liability ends, the criminal liability to be borne by them also ends. This implies that others do not have to bear that liability. If an offender dies, no one else has to bear the punishment or penalty they received, which is why it is said that the crime dies with the criminal, and its direct meaning is that the deceased is freed from criminal liability. Along with the death of the offender, the criminal liability also ends. However, among the punishments assigned as criminal liability to the deceased offender, [certain elements] do not simply end with their death. Even if a complaint is filed against others after a person's demise for an act committed by that person, and the deceased is found guilty of an offense, no punishment is handed down, but actions regarding the claimed amount/property damages (Bigo) must be taken according to the law.
If a person dies after a final verdict of property confiscation (Sarbaswa) has been reached and their property has been frozen, the frozen property cannot be released unless they are acquitted of the offense.
Unit 4 Elements of Crime
Criminal Act (Actus reus)
In criminal law, there is no crime without a criminal act (No actus reus, no crime); a criminal act is an essential element for a crime to occur. In fact, it is the physical manifestation of a human intent. According to the jurist Kenny, "A criminal act is that result of human conduct which is prohibited by law; performing such an act is a criminal act."
In criminal law, an act contrary to law resulting from a physical occurrence of human behavior is called a criminal act (Actus reus). It is one of the mandatory elements of a crime. In criminal law, the word 'act' implies a criminal act that is performed voluntarily. Criminal law encompasses both failing to perform an act that ought to be done (omission) and performing an act that must not be done (commission).
Actus reus means voluntarily performing an act or abstaining from it, which is considered a criminal act. A criminal act must include the following elements: the act must be committed through the environment surrounding the crime scene, timing, instruments, weapons, or other mediums.
Guilty Mind (Mens rea)
This is the doctrine of the criminal mind applicable to any specific crime. It is also called the mental element of a crime. A tainted intent (Mens rea) is the mental element of a crime. Criminal intent means the desire to perform a prohibited act (implying whether the violator knows that they have committed a prohibited act or not).
There must be criminal intent in a crime. An offender's intention, negligence, or recklessness assists in establishing the guilty mindset of the crime. Whether an act is committed intentionally, negligently, or recklessly, a guilty mindset of crime is present. If a crime is based on these elements, legal action is taken according to criminal law.
No Crime Without a Criminal Act (No Actus Reus no crime)
For a criminal offense to occur, the act (actus) must always and under all circumstances be wrongful/prohibited (reus). If such an act is not prohibited by law, it cannot be an actus reus. For a crime to happen, a criminal act must have occurred; even if there is criminal intent, if the act itself cannot be classified as criminal, a crime is not considered to have taken place. For example: if an adult male named Gopal approaches an adult female named Kopila with the intent to have sexual intercourse against her will, but Kopila ultimately gives her consent for the intercourse, that act is not considered as rape (forced intercourse).
Within a criminal act (actus reus), the standard that requires the presence of the following criminal elements is also accepted: crime-centered conduct, the location where the crime was committed, the surrounding environment, timing, instruments, or weapons or other mediums, which can hold importance in the process of evidence collection and can reveal the cause of the crime. Similarly, for a criminal act (actus reus) to occur, there must be a result of the action.
Therefore, in conclusion, we fully agree with the principle that there is no crime without a criminal act (no actus rea no crime), because out of the two elements required for a crime—Mens rea and Actus reus—the most important element is Actus reus. In its absence, a criminal incident cannot be established or proven. For this reason, it is the result of a person's physical presence. It must always be criminal in nature. Such an act must be legally prohibited. Even if the intent is criminal, if the act itself is not criminal, that act cannot be a crime. Therefore, the criminal law principle stating that a criminal offense cannot occur without a criminal act is linked to a universal principle.
Essential Elements of Crime
1. Criminal Act (Actus Reus):
In criminal law, an act contrary to law that results from a fundamental incident arising from human behavior is called a criminal act (Actus Reus). This is the mandatory and first element of a crime. Thus, literally speaking, (Actus Reus) means an act prohibited or banned by law. Under Actus Reus, it includes a specific result brought out by human conduct performed under specific circumstances—meaning circumstances prohibited by law.
Elements of a Criminal Act:
· Voluntary human behavior
· Specific circumstances
· Specific result
2. Criminal Intent (Mens rea):
If someone performs an act with an innocent mindset, that act cannot be considered a crime. In a general sense, criminal intent refers to the specific mental state that an offender possesses at the time of committing an offense. It is also called the mental element of a crime.
Criminal intent (Mens rea) is a technical legal term denoting the second most important element of a crime after the physical act (Actus reus) in criminal law. Literally speaking, Mens rea translates to a guilty mind. In the Nepali context, it is translated interchangeably as Aparadhik Manasay (criminal intent), Doshi Manobhawana (guilty mindset), Aparadhik Mastishka (criminal brain), and Aparadhik Man (criminal mind).
The general principle of criminal law dictates that no individual shall be held criminally liable unless their action is explicitly forbidden by criminal law, and it is proven that the prohibited action was committed with a criminal intent. Provisions regarding this can be found under the Homicide section in Section 177(2) and Section 178(2) of the National Penal (Code) Act, 2017.
Crimes Falling Under the Principle of Strict Liability
1. The legal norm requiring an individual to bear criminal liability solely on the basis of the physical act (Actus reus) is considered an offense under strict liability.
2. While establishing a crime or determining criminal liability under these offenses, the element of intent is not taken into consideration. Simply performing the physical act (Act) is considered sufficient to establish the crime.
3. In such cases, there is no search for Mens rea or its various forms.
4. Offenses falling under strict liability include crimes of a nature where the act itself causes harm to public welfare and security, but the necessary evidence required to prove criminal intent cannot be gathered.
1. Legislative Intent: To maintain public interest and safety, the legislature creates provisions for strict liability so that the guilty cannot escape and liability is established solely based on the physical act.
2. Strict Liability Offenses: These include public nuisance, private libel or slander, contempt of court, eloping with a married woman, and statutory offenses.
Meaning of Act
When you remove the element of intent (mens rea) from the essential components of a crime, whatever remains is the criminal act (actus reus). An "act" must be a conscious movement or behavior originating from a voluntary action. For behavior to count as a criminal act, it must be intentional and willing.
A voluntary act can be carried out directly by oneself, or indirectly by ordering, instigating, abetting, or teaching others. In indirect cases, the mastermind uses an innocent agent who has no legal capacity or awareness. These innocent agents include:
· Minors
· Insane individuals
· People with no knowledge of the crime
· Animals or birds
· Robots or machines
Even if the mastermind performs no physical act at the crime scene and is completely absent when the offense happens, they carry full criminal liability as if they committed the act themselves.
Failure of Duty (Omission)
If performing an act forbidden by law is a positive act (Act), then failing to perform an act mandated by law is a failure of action or omission (Omission). Bearing liability for an act that one did not perform is called an omission.
For example, if another person is about to kill someone unlawfully, and a capable male between the ages of 16 and 65 hears the plea for help but ignores it, [historical provisions state] he shall be fined up to thirty rupees. If a law clearly defines the failure to perform a certain action as a crime, then failing to perform that act creates criminal liability. It is not always necessary that a person must have actively done something or actively refused to do something for a crime to occur.
If we look at the context of our Nepali criminal law, No. 24 of the Chapter on Homicide (Jyan Sambandhi Mahal) mentions that a first information report/complaint (Jaheri) must be filed upon learning of a murder, and No. 26 of the Chapter on Theft (Choriko Mahal) states that if a victim shouts "Catch the thief!", a capable man between the ages of 16 and 65 who hears it but ignores it shall be fined up to fifteen rupees. According to the Chapter on Theft No. 26 and the Chapter on Homicide of the Muluki Ain (Civil Code), providing assistance when someone is about to be killed, and according to Section 46 of the Motor Vehicles and Transport Management Act, 2049 (1993), not allowing a person who does not hold a driving license to drive your vehicle, are provisions that fall under this category.
Existing Situation (State of Affairs)
A criminal act refers to a tangible incident or a positive act (Positive Act) and failures of action (Omissions), but it also denotes an existing situation (State of Affairs). The mere existence of such a situation is contrary to law and constitutes a crime. Even if no actual damage or harm has been caused to anyone, such a situation (State of Affairs) is punishable by law. Such offenses are called situational offenses (Awasthajanya Kasur). It is impossible to test or put a person's inner hidden thoughts on trial, but something about their internal intent can be understood through what they say or do.
Cause of Crime (Causation)
A crime is created from various combined outcomes. The specific purpose of this principle is that if we consider only what is visible at first sight (prima facie) as the crime and punish the offender, the actual cause of the crime might not be uncovered, leading to a situation where an innocent person gets punished, which creates doubt in criminal law itself. If a question arises as to whether the committed crime was perpetrated by this specific person, it must be established that the incident manifested directly because of the actions of the accused. The Muluki Ain has also made provisions for such complex situations. If a mob kills a person, and evidence cannot prove who dealt the fatal blow, everyone brandishing weapons receives life imprisonment.
In terms of liability, criminal causation (subsisting and intervening cause) is considered highly important. According to jurist Kenny, traditional legal frameworks divided criminal causation into two distinct analytical categories:
· Proximate Cause (Cause Proximate): The immediate or closest cause of the criminal result.
· Remote Cause (Cause Remote): A distant or indirect factor in the chain of events.
Classification of a Guilty Mind (Categories of Mens Rea)
Based on natural consequences, criminal intent (Mens Rea) manifests in various forms. It can be divided into four distinct categories:
1. Intention
Intention is defined as the design or blueprint of human consciousness. An individual's purpose is directly pursued and reflected through their physical actions. When a person’s underlying intent is faulty or wrongful, a crime is created.
While intention (Aashaya) and motive (Hetu) are sometimes used interchangeably, they represent two entirely different mental states. Jurist Salmond notes that every offense raises two distinct questions regarding the actor's mindset. Consequently, true legal intention requires two specific components:
· Knowledge of the certain consequences of the criminal act.
· Desire to achieve those specific criminal consequences.
Intention stands as the most critical and severe element of a criminal mind. When a crime is committed intentionally, the offender must bear full and maximum criminal liability under the law.
Recklessness (Laparwahi)
Phrases like "without being fully conscious," "carelessly / recklessly," "completely unconcerned," "indifferently," "with profitable carelessness," and "knowingly careless" are found used in various places. However, the law itself does not explicitly define beforehand what kind of act under which circumstance constitutes a reckless act, and under what circumstance the same act is considered to have been done cautiously; instead, it must be determined based on the nature and form of the relevant incident.
Doing an act without considering the consequences of that specific act is more appropriately described as recklessness. When someone does an act without the aim of achieving a harmful result, but with prior knowledge that their action could bring about such a result, that actor's mental state is understood as recklessness in a subjective sense. It is recklessness when the accused, who ought to have forethought the potential risk arising from their action, ignores that risk and unjustifiably runs it.
Regarding the legal view that the liability arising from a reckless intent and a purposeful intent is equal, the Supreme Court in the case of Government of His Majesty v. Shobhalal Patel et al. has interpreted recklessness in two different legal senses. Section 181(2) of the National Penal (Code) Act, 2017 under the Homicide section contains provisions regarding this, which are classified as follows:
1. Subjective Recklessness
2. Caldwell-type Recklessness
Transferred Intention / Malice (Sareko Manasay)
Where the accused knowingly performs an act for one purpose or target, but the actual object or victim turns out to be another, it is called transferred malice or the transfer of liability (Transferred malice). This principle carries a highly important characteristic, according to which the court interprets this doctrine strictly. The court initiates the implementation of this principle only when the mental pattern arising between the intended act and the occurred act is identical. By a single intent Even if that exact intended act does not take place, if a criminal act of the same nature occurs, it is considered sufficient for transferred intention—a concept supported by Smith and Hogan. Under the principle of transferred malice, homicide law dictates that once an offender's intent to commit a crime is established, it is not necessary for the crime to be committed against the specific target individual.
The mere fact that they committed the offense is sufficient for criminal liability, provided they do so intentionally or knowingly. In such cases, the law seeks to punish the offender because they caused a death intentionally.
The principle of transferred intent applies only to crimes of a similar nature. For example, if a person intends to kill a human being but ends up killing a dog instead, the doctrine of transferred intent does not apply.
Transferred intention also applies to defenses like provocation. For instance, if a person provokes the accused, and the accused, driven by sudden heat of passion, attempts to attack that provoking person but strikes an innocent bystander instead, the accused will bear liability for manslaughter under provocation.
Unit 5 Stages of Crime and Inchoate Crime
Generally, for a crime to occur, there must be a criminal act (Actus reus) and a guilty mind (Mens rea). From that perspective, it means there must be both a physical action and a mental element, which means these two stages must coexist. However, in crimes of strict liability, an offense occurs solely based on the criminal act (Actus reus). This indicates that a crime can exist even at the very first stage.
Therefore, there are different stages for a crime to take place. When administering punishment in criminal law, the degree of the offense is analyzed, and the offender is penalized according to the exact stage they have crossed. According to prominent scholars, the stages of a crime are as follows:
Stages of Crime
1. Intention (Intention)
Intention is the primary subject matter of a criminal act. It is considered the first stage of an intentional crime. It is a systematic sequence of plans formulated in the human mind to execute a crime. It can be read as a collection of answers to questions like: what to do, how to do it, when to do it, where to do it, to whom it is to be done, with whose collusion it is to be done, and for what purpose. A criminal act is considered the product of subject matter such as a guilty mind, malice, or a wrongful mindset. All subsequent stages of a crime are directed by this internal intention.
2. Preparation (Preparation)
This is the second stage of a crime. Arranging the necessary prerequisites to give concrete form to a criminal intent is called preparation. Gathering the necessary methods and tools required to commit a crime makes executing the offense much easier. This stage includes preparations to evade search after committing a crime, escape plans, or actions to eliminate suspicion if caught. Generally, the preparation stage is not considered a crime. However, provisions exist in certain circumstances where preparation itself is declared a separate crime and punished. For example: offenses against the state, or preparations to launch a rebellion against a friendly nation under Section 5.
3. Attempt (Attempt)
This is the third stage of a crime. It is taken as the stage following preparation. The initiation of a series of physical criminal acts constitutes an attempt. The complete crime has not yet taken place at this stage. It encompasses all actions required up until the final completion of the offense. Even if the criminal act is not completed, an attempt is recognized as an offense and punished accordingly. Although an attempt involves actions carried out to achieve a purpose, it represents the closest possible action to the intended result without actually achieving it.
4. Complete Crime (Complete Crime)
This is the fourth stage in the final sense of a crime. A state where the criminal act is fully accomplished is called a complete crime. A complete crime brings together intention, preparation, andindicates the success of the attempt. Since this represents a state where the targeted result is successfully achieved, it is recognized as a crime and penalized accordingly. In offenses committed through negligence or recklessness, the full crime occurs instantaneously; therefore, distinct stages of a crime like criminal intent, preparation, and attempt do not manifest.
Inchoate Crime (Apoorna Aparadh)
To control organized crimes right from the initial phase—meaning from the very stage of formulating a criminal intent—criminal law incorporates provisions that treat any given stage as an independent, distinct offense. A situation where law enforcement can make an arrest and initiate legal proceedings before the criminal consequence is fully completed is designated as an inchoate crime.
A complete crime refers to an offense where criminal liability is determined after all the essential elements of the crime are fully established. In the early stages of the development of criminal jurisprudence, penal provisions applied only to completed crimes. However, with the evolution of criminal law over time, a concept emerged to punish acts performed with criminal intent even if the pre-crime stage was not surpassed or the expected result was not attained, treating such actions distinctly from a completed crime.
A state where a person intentionally initiates a criminal act but has not yet achieved the envisioned outcome is taken as an inchoate crime. It is also termed a preliminary crime, where criminal jurisprudents have accepted the concept of punishing a consequence by designating it as an incomplete crime. Because inchoate crimes are strictly related to intentional criminal actions, they do not relate to prohibited acts that generate other forms of criminal liability or those devoid of specific criminal intent. If a punishable act involving knowledge, negligence, recklessness, sudden provocation, or an accident concludes abruptly in a state of incompleteness, liability for an inchoate crime is not created.
The following offenses fall under the scope of inchoate crimes:
1. Abetment (Incitement / Abetment / Instigation)
Literally speaking, abetment refers to improper, bad, or negative encouragement or instigation. From a legal and moral perspective, abetment is the collective combination of acts such as instigating, encouraging, provoking, aiding, ordering, advising, assisting, or providing facilities to perform an unlawful act. If the act abetted in this manner constitutes a crime, the abetment itself is recognized as an offense and penalized. Section 35(2) of the National Penal (Code) Act, 2017 contains provisions regarding this.
2. Conspiracy (Conspiracy)
According to etymology, the English word conspiracy translates to "breathing together." A conspiracy is essentially a type of agreement to perform an act contrary to law, or to perform a lawful act through unlawful means. For a conspiracy to exist, at least two or more individuals must come together, formulate a secret plan to cause harm to someone, and engage in fraudulent behavior or actions. Since conspiracy is one medium of abetment, abetment is broader and more comprehensive than conspiracy.
Legal action can be initiated only if the conspiracy is legally established as an offense; otherwise, it cannot be brought within the scope of prosecution without the conspiracy being put into implementation. The more extensive and severe the nature of the conspiracy, the harsher and heavier the punishment administered. Section 33 of the National Penal (Code) Act, 2017 contains provisions regarding this.
3. Attempt (Attempt)
This is the third stage of a crime. It is taken as the stage following preparation. The commencement of a series of physical criminal acts constitutes an attempt. The complete crime has not yet taken place at this stage. It encompasses all actions short of a completed crime. Even if the criminal act is not completed, an attempt is recognized as an offense and punished accordingly. Although an attempt involves actions carried out to achieve a purpose, it represents the closest possible action to the intended result without actually achieving that targeted outcome. Section 34 of the National Penal (Code) Act, 2017 contains provisions regarding this.
Unit 6 Parties to Crime
Meaning of Parties to Crime
The direct or indirect involvement of individuals or groups in doing what the law forbids or failing to do what the law mandates constitutes the parties to a crime. The parties participating in a crime must bear criminal liability. Since the determination of such criminal liability corresponds to the degree of involvement in the crime, penal provisions are arranged according to that exact degree.
The parties involved in a crime may have involvement across the various stages of crime, such as intention, preparation, attempt, and completed crime. Such parties are also often found involved in post-crime activities such as hiding or concealing the crime, destroying evidence, or threatening, coaxing, cajoling, and enticing the victim's side.
Crime, which generally evolved from individual participation since ancient times, has developed into a complex, organized, borderless, and anonymous form in modern times. Taking the degree of involvement in the crime as the basis, the principal offender (Mukhya Abhiyukta) is given the harshest punishment, while the accomplice (Sahayak Abhiyukta) is given a lesser punishment compared to the principal offender.
Classification of Parties to the Crime
Embracing the nature, scope, and specific characteristics of the crime, the parties to a crime are determined based on their manner of involvement in the offense. Therefore, the parties to a crime can be studied by classifying them into two parts:
Parties to the Crime
A. Principal Offender (Mukhya Aparadhi)
Among the individuals directly or indirectly involved in a crime, the person who actually executes the crime through their immediate actions is the principal offender. In English criminal law, this type of offender is known as a Principal in the First Degree or Principal Offender. The principal offender plays a direct role in bringing about the criminal incident. In an offense where only one single person is involved, that person automatically constitutes the principal offender. Provisions regarding this are set forth in Section 36(3)(a) of the National Penal (Code) Act, 2017.
B. Secondary Offender (Sahayak Aparadhi)
An individual who performs actions such as assisting, coaxing, or advising the principal offender to execute a crime is called a secondary or second-degree offender. This person assists the main offender in executing the crime, regardless of whether they are physically present at the crime scene or not. In criminal law, the harshest and most severe penalties are reserved for the principal offender, while a secondary offender receives a lesser penalty or punishment compared to the principal offender. Provisions regarding this are set forth in Section 36(3)(b) of the National Penal (Code) Act, 2017.
Accessory (Matiyar)
An accessory is a person who does not play an active or direct role in committing a crime themselves, but provides necessary financial, physical, or mental assistance, or instigates another person to commit it. An accessory motivates, encourages, or stands alongside an individual to induce them to do what the law forbids or fail to do what the law mandates. In addition to assisting in the execution of the crime, they also help in hiding or concealing the offender, or intimidating others after the crime has taken place. Therefore, accessories can generally be classified and studied in three distinct parts:
1) Accessory the Fact (Wardat Abhiko Sahayogi Matiyar)
This includes performing actions prior to the commission of the crime, such as formulating plans, offering advice, giving consent, or instigating others to ensure the full execution of the criminal incident.
2) Accessory During the Fact (Wardatako Samayako Matiyar)
This involves performing actions at the crime scene to facilitate the execution of the crime, such as gesturing, marking one's presence, or creating a favorable environment, thereby providing mental motivation and encouragement to the principal accused.
3) Accessory After the Fact (Wardat Pachhiko Matiyar)
An individual is considered an accessory after the fact if, after the crime has been committed, they assist with the intent to hide or conceal the incident, destroy evidence, or protect the principal accused. This includes helping them escape, providing resources or transportation for their escape, helping them evade the law, or failing to cooperate in arresting an accused person who is an acquaintance or relative.
Unit 7 General Defenses
Concept and Meaning of General Defenses
In criminal jurisprudence, general defenses are referred to as general exceptions to criminal liability. A general defense is a condition under which an accused individual, or a person involved in a criminal incident, does not have to bear liability for the action they committed, is acquitted of the charges, receives an exemption or a reduction in punishment, and is not deemed guilty.
In real life, situations can arise where a person cannot obtain justice in a timely manner regarding matters linked to their survival. Therefore, provisions are established so that an individual involved in an incident is not penalized for their action even if that action technically violates the law. The principle maintaining that any individual has the right to preserve their own life applies here.
Such provisions are arranged across all countries, tailored to different times, eras, and distinct circumstances. In cases handled by the Government of Nepal, the burden of proving the claims and charges listed in the indictment rests upon the government (the prosecution side), which must provide sufficient weight of evidence to establish that the offender deserves the punishment demanded in the indictment. Provisions regarding this are set forth under Section 22 and Section 24 of the National Penal (Code) Act, 2017.
Rationale and Justifications Behind General Defense
Analyzing the circumstances surrounding a criminal incident and granting a partial or full exemption from criminal liability constitutes a general defense. For a crime to occur, both a criminal act (Actus Reus) and a criminal mind (Mens Rea) are required. The doctrine of general defenses remains closely linked with the concept of the criminal mind. It evaluates whether a criminal intent or mindset coexisted alongside the physical act.
If an individual lacks the capacity to distinguish between good and bad, lacks the desire to commit an offense, or completely lacks the awareness that a specific action is an offense punishable by criminal law, holding them criminally liable under such exceptional circumstances would be unjust, illogical, and irrational. Therefore, they must be granted a partial or full exemption from criminal liability.
Classification of General Defense
Under criminal law, a general defense represents a special condition where an accused individual does not have to bear liability for the act they committed, is acquitted of charges, receives an exemption, or gets a reduction in punishment. For a general defense, a person's criminal intent, mental state, emergency scenario, and surrounding circumstances are taken into consideration. General defenses can be classified into the following categories:
Excusable General Defenses (Kshamayogya Samanya Pratiraksha)
Failing to do what the law mandates or doing what the law forbids constitutes a crime. A crime requires the presence of both a criminal act (Actus Reus) and a criminal intent (Mens Rea). The combination of these two elements as a resulting consequence, the absence of factors such as free will, the intellect to distinguish right from wrong, discretion, capacity, or knowledge that an act is unlawful and punishable in the individual involved or accused in the incident forms the basis of an excusable defense. Under this category, the following are included:
· Infancy (Balyavastha)
· Insanity (Pagalpan)
· Mistake (Bhul)
· Intoxication (Nasha Sevan)
Justifiable General Defenses (Nyayochit Pratiraksha)
Private Defense (Niji Raksha)
The state machinery is unable to protect a citizen's body, wealth, property, and reputation at all times and under every circumstance. Because of this, an immediate incident or situation forces and permits any individual to respond and react out of absolute necessity. However, one is not allowed to react or respond to an immediate incident across every single matter without constraint. In particular, it relates to matters regarding the protection of public interest and the extent to which such private defense can be exercised. Provisions regarding this are set forth under Section 24 and Section 26 of the National Penal (Code) Act, 2017. Private defense can be outlined as follows:
- Self-Defense (Aatmaraksha)
- Defense of property (Sampattiko Raksha)
- Defense of chastity (Satitvako Raksha)
Necessity (Aavashyakata)
The ancient Latin maxim "Necessitas non habet legam", meaning Necessity knows no law, is based on the principle that necessity recognizes no legal boundaries. In an emergency situation, if an individual strictly complies with the values, principles, laws, methods, and procedures of the law, it would result in the immediate and large-scale destruction of body, life, and property. Therefore, adopting an appropriate course of action to resolve the immediate crisis is what constitutes necessity.
To claim a defense under the circumstances of necessity, an act involving a legal violation must have been committed to prevent a greater blame, fault, harm, or destruction. The risk or harm of the emergency action taken must be lesser than the risk, fault, harm, or destruction that was prevented, and such an essential act must be performed with good faith and bonafide intentions.
Duress or Compulsion (Badhyata va Vivashata)
This is based on the ancient legal maxim "Actus me invito factus non est meus actus" (printed in the text as Actus mes invito non est mens actus), meaning "An act done by me against my will is not my act."
An individual facing such compulsion is typically found to have assisted in committing a crime under the pressure of fear, intimidation, or threats from another person, often to protect the body, life, property, and reputation of themselves or a person they are bound to protect. Although the person is fully aware of the physical nature and consequences of the action they are performing, they lack a criminal intent (Mens Rea).
Superior Order (Mathillo Adhikariko Aadesh)
Superior order is the collective concept concerning whether a subordinate who obeys an order must bear criminal liability if a criminal incident occurs while complying with a directive issued by a higher-ranking official, and whether the order of a superior can be utilized as a general defense.
Generally, while standard legal doctrines state that a superior's order cannot be counted as a valid defense, certain scholars hold differing opinions and accept it as an exceptional defense under specific limitations. Even if the person obeying the superior's order has full knowledge regarding what is right or wrong, as well as the potential consequences and nature of the act, they do not possess an underlying criminal intent (Mens Rea).
Unit 8 Property Offenses
Property Relating Offenses (Sampatti Sambandhi Aparadh)
The closest matter linked to human life is their property. Along with societal changes, various types of property are found. For instance, rather than defining movable, immovable, intellectual goodwill, etc. separately, the Interpretation of Statutes Act, 2010 defines property collectively as movable and immovable property. Property rights and their infringement generally fall within the scope of civil law. However, because acts committed by targeting or utilizing property are declared as crimes and require essential action under the criminal law framework, offenses relating to property are looked at under criminal law. In property relating offenses, a dishonest intention and a guilty mind are almost always present. Property is invariably connected to some person; if any criminal act (Actus Reus) is committed that interferes with that person's right over it, it is considered a property offense.
Generally, offenses against property encompass the following crimes: theft, cheating/fraud, robbery/dacoity, and arson-related offenses.
Theft (Chori)
Taking, consuming, or carrying away another person's private property with a dishonest intention and without the consent of the owner of that property is theft. According to No. 1 of the Chapter on Theft (Choriko Mahal) in the old Muluki Ain (Civil Code), theft is defined as taking someone else's movable property, or immovable property treated by calculation as movable, where one has no rightful claim, without informing the rightful owner or obtaining their consent, with the intent to erase the owner's right and take it for oneself. If someone carries away any item whatsoever with a dishonest intention even just to consume it, it constitutes theft. Section 241 of the National Penal (Code) Act, 2017 contains provisions regarding this.
Cheating (Thagi)
According to Chapter 1 on Cheating (Thagiko Mahal) in the Muluki Ain (Civil Code), cheating is established if a person, who has no rightful claim over another's movable or immovable wealth and property, deceives the rightful owner or the person in charge of it by enticement or fraudulent conspiracy, or by manufacturing, providing, or presenting forged documents claiming ownership over a property they have no right to, or by misrepresenting that they possess something they do not, or by falsely claiming that a defective item is genuine, or by deceiving and misleading through any means whatsoever, to declare in writing or otherwise that another's property to which they have no right is theirs or has become theirs, and subsequently takes, gives, sells, deals, or exchanges that property. Thus, the offense of cheating is defined as a crime that must include both elements: a criminal act involving wrongful deception to cause personal gain and another's loss, and a corrupt mindset (dishonest intention).
Looting (Lutpit)
If a person forcefully snatches, takes, or destroys any property in another's possession under the claim that they also have a right or authority over it, such an act is called looting. Thus, looting must result in a gain for one party and a loss for the other party.
According to Chapter No. 1 on Looting (Lutpitko Mahal) in the Muluki Ain, "Except for acts which by their nature constitute an offense under the Chapter on Theft, if an incident arises in the manner described in the sections of this chapter, and through that medium escalates to a quarrel or physical assault, or even without any such escalation, one must not lay hands on, forcefully snatch away, or cause any kind of damage to another person's rightful or custodial cash, goods, property, bipedal or quadrupedal animals, or crops on land; doing so constitutes looting." According to No. 2 of Looting, "Claiming that one has suffered or is about to suffer a loss, or that one also holds a right. Looting is established if, claiming a right over matters such as land, boundaries, borders, creditors, debtors, property partition, gifts, donations, birta land, written documents, financial accounts, treaties, mortgages, irrigation canals, water rights, crops, grazing, trusts, deposits, etc., or over any other matters like houses or clothes, a verbal dispute, quarrel, or physical scuffle breaks out, and right then and there at that very place, cash or goods in one's immediate possession are forcefully snatched, taken away, or damaged.
Arson (Aago Lagaune)
The act of committing arson is recognized as a highly condemnable and major crime. The offense of arson has been treated as a severe crime since ancient times. It is classified as a traditional crime. It involves destroying another person's property over which one has no rightful claim by setting it on fire, thereby causing damage and loss to the property owner.
Because cases of setting fire to a house are treated as offenses against the state and were included in Schedule 1 of the State Cases Act, 2049 (1992), our country's law establishes this offense as a severe crime. In Nepal, regarding arson incidents, a separate chapter on arson (Aagalagi) was arranged in the old Muluki Ain to define the crime and determine punishments. No one is permitted to intentionally set fire, order others to set fire, or attempt or cause an attempt to commit arson to inflict damage. If anyone performs the aforementioned acts, all the individuals involved in executing the act, as well as the masterminds or conspirators (matlabi), shall be held liable under the law.
Unit 9 Offenses Against Person and Human Dignity
Offenses Against Person and Human Dignity (Vyakti tatha Manaviya Maryada Viruddhaka Aparadh)
Man is a social animal; he must be allowed to live freely in society, and he continuously strives to maintain his self-respect and dignity within it. For a human being, his body and dignity are considered highly important for society. If a person's body or life is not protected, then his existence holds no meaning there.
In Part 3, Article 16 of the Constitution of Nepal, provisions have been made regarding the right to live with dignity, which states: (1) Every person shall have the right to live with dignity. (2) No law shall be made providing for the death penalty. Article 17 contains provisions for the right to freedom. Thus, actions must not be committed against human fundamental rights and human values.
Offenses relating to the body and dignity include the following crimes, which are resolved through judicial remedies and penalized by means of criminal law. Offenses against person and human dignity include homicide, physical assault, human trafficking and transportation, rape, incestuous sexual assault, kidnapping and hostage-taking, and defamation, which can be outlined as follows:
Offenses Relating to Homicide (Jyan Sambandhi Aparadh)
The word homicide comes from the Latin word Homicidium, where homo means a human being and caedere means to kill. It signifies the killing of a human being.
No. 1 of the Chapter on Homicide (Jyan Sambandhi Mahal) of the old Muluki Ain dictates that no one shall kill or cause to be killed any person except in accordance with the law, meaning that if a life is taken as permitted by law, no punishment is administered. Exemption from punishment applies under specific conditions, such as protecting chastity or defending essential property. Section 177 of the National Penal (Code) Act, 2017 contains provisions regarding this.
Thus, in our criminal justice system, homicide is studied by dividing it into two categories: lawful and unlawful.
1. Lawful Homicide (Kanuni Hatya)
According to No. 1 of the Chapter on Homicide of the Muluki Ain, "No life shall be taken except in accordance with the law." The law does not grant any person the freedom to kill anyone except under the specific procedures established by law.
Any individual who violates the law and commits a criminal offense must receive punishment in accordance with the law.
a. Justifiable Homicide (Nyayochit Hatya)
b. Excusable Homicide (Kshamayogya Hatya)
2. Unlawful Homicidal (Gairkanuni Hatya)
All homicides apart from the lawful homicides mentioned above fall under the category of unlawful homicide. In these homicides, the offender is held accountable and penalized for their actions. In another sense, it is also called culpable homicide (baat lagne hatya). Depending on the offender's mental intent at the time of committing the killing, various levels of punishment have been arranged, which are clarified below. In these homicides, justice is delivered to the victim by punishing the offender according to criminal law and providing compensation.
a. Intentional Homicide / Murder (Kartavya Jyan)
b. Homicide under Provocation (Aabeshprerit Hatya) (Note: Printed as "Justifiable or provocational Homicide" in the text)
c. Accidental Homicide (Bhavitavya Hatya)
d. Homicide with Reduced Punishment (Sajay Kam Hune Hatya)
Attempt to Murder (Jyan Marne Udyog)
"Attempt to murder" refers to a situation where someone performs an act capable of causing death with the intent to kill another person, but due to some intervening cause or external interference, the victim survives.
If an attempt to kill fails, No. 15 of the Chapter on Homicide (Jyan Sambandhi Mahal) of the old Muluki Ain contains provisions regarding the attempt to murder. According to it, if a person opens fire, detonates a bomb, strikes with a lethal weapon, or attempts any other act to kill with the explicit intention of causing death, bringing the victim to the brink of death, but the death fails to occur due to any intervening cause, then the person who commits the act, causes it to be committed, or goes to the crime scene to reassure or assist them shall be held liable for an attempt to murder.
Abortion (Garbhapatan)
The act of terminating a fetus in the womb before birth is called abortion. Based on the premise that a fetus removed before 28 weeks cannot survive outside the womb, the procedure of removing a pregnancy of less than 28 weeks is also called abortion.
Although abortion has received legal recognition in Nepal, it has not been clearly defined in the text of the law. Due to the existing legal ambiguities related to abortion, situations arise that substantially affect the filing of complaints, investigation, and judicial adjudication of cases related to it.
An abortion performed within the time period prescribed by law, subject to the conditions and limitations determined by law, at an authorized health institution and by a skilled service provider with the voluntary will or consent of the woman, constitutes a lawful abortion.
Hurt / Assault (Kutpit)
The act of executing an unlawful attack upon another person's body with the intent to cause physical or mental pain is called hurt (Kutpit). In criminal jurisprudence, among criminal offenses against the person, this is taken as a serious crime next to offenses relating to homicide. In this offense, the element of intention is looked at with greater importance. Criminal law does not consider a mere physical action (Act) as a crime; there must be an underlying intent behind it. The penalty or punishment is administered based on the degree of the offender's blameworthiness in the crime.
Regarding hurt, the Chapter on Hurt (Kutpit Mahal) of the old Muluki Ain states: "If anyone lifts weapons against someone or in any other manner causes bleeding, injury, mutilation of a limb, or performs an act causing other pain or harm to the body, it shall be established as committing hurt."
Regarding hurt, British law divides it into two main parts: Assault and Battery, and Grievous Bodily Harm. Harm that touches or injures the victim's body is categorized as Battery, while harm caused without touching the body, or actions that create a threat or fear of physical harm, are categorized as Assault.
According to the Chapter on Hurt (Kutpit Mahal) of the old Muluki Ain, it can be classified as follows:
1. Simple Hurt (Sadharan Kutpit)
Grievous Hurt / Mutilation (Angabhanga Kutpit)
· If someone destroys the power of sight or gouges out an eye to cause blindness.
· If someone destroys the sense of smell of the nose.
· If someone destroys the power of hearing of the ears.
· If someone destroys the power of speech of the tongue.
· If someone cuts off a woman's breast.
· If someone causes infertility in a woman or impotency (castration) in a man.
· If someone breaks or dislocates the spine, hands, legs, or their joints, rendering them completely useless.
2. Accidental Hurt (Bhavitavya Kutpit)
If a person, without any intention to commit hurt, performs an action and as an accidental consequence of that action another person sustains an injury, mutilation, or wound, etc., or while performing work with full focus at a workspace, someone suddenly enters the area in a way that the worker cannot prevent it—whether noticed at the last second or completely unnoticed—and that person gets struck, resulting in a broken limb, wound, or injury, it is established as accidental hurt.
Justifiable Hurt / Excusable Hurt
According to No. 4 of the Chapter on Hurt, the law provides that no blame or criminal liability attaches to hurt inflicted for self-defense or for the purpose of education/discipline.
Human Trafficking and Transportation (Manav Bechbikhan tatha Osarposar)
A person's life and body are invaluable and sensitive matters. The crime related to killing or selling a human body is a serious crime falling under offenses against life and body. This is called a heinous crime. For the eradication of serious crimes like human trafficking and transportation, international human rights law at the international level, and primary laws, special laws, and general laws at the national level, have been making significant efforts.
The League of Nations Slavery Convention, 1926 (printed as "Slavery convnation") aims to prevent practices such as making people slaves, trafficking slaves, completely eradicating all forms of slavery, and forced labor that assists in enslavement. To eradicate slavery, nations must cooperate with one another, and except for public purposes, adopt processes to quickly end compulsory and forced labor (Slavery Convention 1926, Articles 1 to 5). Nepal became a state party to this convention in January 1963.
Article 1 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (printed as 1994 in the text) emphasizes that acts such as enticing or leading away another person for the purpose of prostitution, even with their consent, and exploiting their prostitution, must be made punishable. Nepal became a state party to this convention on 22 December 1995.
Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 states that state parties shall take all necessary measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. Nepal ratified this convention on 22 April 1991.
Article 34 of the Convention on the Rights of the Child (CRC), 1989 states that state parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, state parties shall, in particular, take all appropriate national, bilateral, and multilateral measures to prevent:
a. The inducement or coercion of a child to engage in any unlawful sexual activity;
b. The exploitative use of children in prostitution or other unlawful sexual practices;
c. The exploitative use of children in pornographic performances and materials.
State parties shall take all appropriate national, bilateral, and multilateral measures to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form (as mentioned in Article 35). Nepal ratified the Convention on the Rights of the Child on 14 September 1990.
The United Nations Convention against Transnational Organized Crime, 2000 (Palermo Convention) made special provisions to prevent, suppress, and punish trafficking in persons, especially women and children, and to assist and protect the victims of human trafficking.
It mentions preventing, suppressing, and punishing trafficking in women and children, and the exploitation of the prostitution of others, while ensuring protection and assistance for victims. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2002, makes arrangements regarding preventing the sale of children into prostitution and pornography. It contains provisions to prevent, stop, and combat the trafficking and sale of women and children. Along with international protocols and instruments like the SAARC Convention, 2002 and the Council of Europe Convention on Action against Trafficking in Human Beings, 2005, dozens of international documents have established various acts, rules, and protocols regarding human trafficking and transportation to guarantee the right to justice against this crime.
Kidnapping (Apaharan)
No one shall compel any person to go to any place by using force, threatening to use force, creating fear or terror, using coercion, showing weapons, practicing deception, misleading them, or by drugging or intoxicating them, or by taking control or custody of any means of transport in any manner; nor shall anyone take away any person without their consent, or take away a minor or a mentally unsound person to any place without the consent of their parents or guardian for their own benefit. Doing so constitutes kidnapping. No. 1 of the Chapter on Kidnapping and Hostage-Taking (Apaharan Garne tatha Sharir Bandhak Lineko Mahal) of the Muluki Ain defines kidnapping in this manner. Section 211 of the National Penal (Code) Act, 2017 contains provisions regarding this.
Unit 10 Sexual Offenses and Offenses Relating to Marriage
Rape (Jabarjasti Karani)
In a general sense, sexual intercourse (karani) can be understood as the penetration of a male's penis into a female's vagina, meaning copulation. Placing or inserting a male's penis into a female's vagina, thereby establishing contact between the penis and the female's vagina, constitutes sexual intercourse.
Establishing sexual relations against a woman's will or by using force is considered rape (jabarjasti karani). From a jurisprudential perspective, performing sexual intercourse with a female who has not reached the age prescribed by law, with or without her consent, or performing sexual copulation with an adult female against her will by using force, constitutes rape.
Establishing sexual relations through the use of threats, intimidation, or coercion is also classified under the category of sexual offenses.
Legal frameworks typically define the elements of such offenses based on the absence of valid consent and the specific nature of the prohibited act as defined by statute.
Incest (Hadnata Karani)
This term refers to sexual acts between individuals within specific prohibited degrees of relationship, such as certain blood relatives or lineages. Jurisdictions often categorize these as offenses based on legal, cultural, and religious standards. Modern statutes define the specific boundaries and relationships that fall under this classification to maintain social and legal order.
Incest is committed if a person has sexual intercourse with a granddaughter, daughter, elder sister, younger sister, mother, or a woman within a prohibited degree of marriage. Similarly, it constitutes an offense of incest if a female who has completed sixteen years of age consents to or causes sexual intercourse with her grandfather, father, brother, or son.
Provisions regarding this were made under No. 15 of the Chapter on Incest (Hadnata Karani) in the old Muluki Ain (Civil Code). It was not clearly defined there. However, according to that chapter, sexual intercourse between a mother and son, elder sister, younger sister, brother, father, and daughter is considered a heinous crime. Provisions regarding this are set forth under Section 220 of the National Penal (Code) Act, 2017.
According to No. 11 of the Chapter on Incest in the Muluki Ain, notwithstanding anything written in other sections of this chapter, if someone has sexual intercourse with a relative or a wife punishable under this chapter, and the claimant also wishes to pursue additional penalties under the Chapter on Adultery (Jari), then the prison sentence under this chapter shall be added to that sentence... (explains specific sentencing caps under old historical codes).
Sexual Harassment / Indecent Assault (Youn Durvyavahar)
If a person, without a woman's consent, touches or attempts to touch her sensitive organs, removes or attempts to remove her undergarments, takes her to an isolated place in an unnatural manner, forces her to touch or hold his sexual organs, shows her explicit pictures or images, teases or harasses her with sexual intent, or grabs her with the intention of sexual intercourse in any similar manner, it constitutes sexual harassment. A person who commits this offense shall be punished with imprisonment for a term up to one year and a fine up to ten thousand rupees. The victim of such an act must also be provided reasonable compensation from the offender. Anyone who entices a woman to engage in unlawful intercourse with themselves or others, or acts as a contact and arranges prostitution, shall be punished with imprisonment up to three years and a fine up to thirty thousand rupees.
Statute of Limitations: No lawsuit regarding the matters written in this section can be filed after thirty-five days from the date the incident came to light. Provisions regarding this are set forth under Section 23 of the National Penal (Code) Act, 2017.
Bigamy: Polygamy/Polygyny and Polyandry (Bahuvivah)
When looking at the origin and history of human marriage and analyzing the concept of marriage between opposite sexes, it becomes clear that marriages are entered into due to religious, biological, social, economic, and procreational factors. Marriage is a life union between two opposite sexes (one man and one woman).
Unit 11 Socio-Economic Offences (Samajik-Aarthik Aparadhharu)
Bribery and Corruption (Ghusakhori ra (va) Bhrashtachar)
The word corruption (Bhrashtachar) comes from the Latin word Corruptio. According to a definition adopted by an international convention on corruption organized by the United Nations, corruption is defined as the abuse of position or office by state employees, political officials, local government officials, prominent social figures, businessmen, and even political workers to unlawfully gain profit for the fulfillment of personal self-interest.
It includes unlawfully giving and taking bribes, misappropriating state property as one's own, stealing public property through secretive agreements (collusion), protecting those who engage in such activities, and pursuing matters that connect public duties with personal interests through unlawful channels.
Corruption is a criminal offense. Corruption pushes society and the nation into poverty, anarchy, and failure. According to the legal dictionary written by jurist Top Bahadur, an act committed with the intent to secure a benefit that is incompatible with the rights of others and official duties is called corruption.
Banking Offense (Banking Crime)
A bank is an institution related to financial transactions. It provides financial resources for large industries, factories, physical infrastructure development, and various basic infrastructure projects across different sectors, and accepts their deposits. From this, it is clear that managing financial sources without a bank makes capital mobilization difficult. While conducting such transactions, various crimes related to banking occur. That is called a banking crime. Through banking channels, public investment in Nepal is found to have collapsed or vanished within moments in some cases. The definition of a bank is clear. According to the Oxford Dictionary, "An establishment for custody of money which is paid out on customer's order." According to Prof. R.S. Sayers, "Bank is an institution whose debts are widely accepted in settlement of other people's debts to each other." A bank is an institution whose debts or credit are universally accepted in settling mutual relationships among other people.
To prevent these and similar offenses, the Banking Offenses and Punishment Act, 2064 (2008) has been brought into force in Nepal. Its jurisdiction extends both within Nepal and outside Nepal. Under this Act, Chapter 2 mentions that performing the following acts constitutes a banking offense.
Money Laundering (Sampatti Suddhikaran)
The process of converting illegally earned wealth or property (such as corruption, drug trafficking, human trafficking, arms smuggling, wildlife trafficking, gold smuggling, etc.) into legitimate wealth through legal channels (such as investing in shares, buying property, or playing in casinos) to clean or legalize black money is called money laundering. This is recognized as a crime. In Nepal, the Asset Laundering (Money Laundering) Prevention Act, 2064 (2008) was enacted. This Act does not directly define money laundering itself, but Chapter 2, Section 4 mentions that earning wealth or investing in terrorist activities through the following criminal acts shall be deemed to have committed an offense related to money laundering.
Money laundering is currently connected with one of the world's terrifying economic crimes. It is viewed globally as a menacing offense, and various international organizations have come forward to prevent it. For example, as Nepal is a member state/adherent to FATF standards, it has been cooperating in the prevention of money laundering.
Narcotic Drugs (Narcotic Drugs)
Crime Relating to Narcotic Drugs (Lagu Aushadh Sambandhi Aparadh)
Due to social changes, the world has become a global village, which has led to its impact spreading nationally and internationally across society. To involve boys and girls in coping with various stresses, illicit trafficking, and crimes, the use of narcotic drugs is found to be widespread. Because its daily consumption is rising, it has invited severe problems internationally. It has brought a highly negative impact especially upon families, society, and the nation. Narcotic drug control has become a major challenge for various national and international organizations, states, and governments.
According to the World Health Organization, although the principle has been put forward that narcotic drugs push individuals into fatal conditions and therefore chemical substances should not be consumed, effective control has still not been fully achieved.
The international treaty concluded in 1961, the Single Convention on Narcotic Drugs, 1961, and the Convention on Psychotropic Substances, 1971, lay down that chemical substances used to manufacture narcotic drugs cannot be imported, exported, transported, stored, distributed, or used without the permission of the chief drug control authority, and special attention must be paid to these matters. The United Nations organ, the International Narcotics Control Board (INCB) under ECOSOC, oversees this matter. Its board is located in Vienna. This is a severe/strict crime.
Computer-Related Crime (Cyber Crime)
Currently, computer systems and technological science have made a huge leap forward in the world. In this way, the utilization of technology that allows human tasks to be performed technologically is pushing traditional governance toward modern digital government through electronic mediums. As a result, crimes using modern technology have emerged in society rather than traditional crimes. Today, crimes are found to be committed from one corner of the world to another. These crimes are particularly found to be carried out through electronic mediums or cyber mediums. Briefly put, electronic crime or cyber crime is committed by means of a Computer / Computer Network.
Thus, although there is no standalone act explicitly addressing cyber crime in Nepal, punitive provisions have been arranged under the Electronic Transactions Act, 2063 (2006). Within it, the types of digital offenses, what actions constitute a crime, and what punishments apply are mentioned from Section 47 to Section 59 of the Electronic Transactions Act, 2063.
Unit 12 Offences Related to Documents and Official Secrets
Forgery (Kirte)
This is a type of document-related crime that falls under offenses against documents and document forgery. It is also historically known as a traditional document crime. According to the Chapter on Forgery of Documents (Kirte Kagajko) in the old Muluki Ain (Civil Code):
"If a person counterfeits a signature, thumbprint, sign, or stamp, or if they take a genuine legally stamped document concerning one subject matter and delete its text by any trick or mechanism to rewrite it in a way that matches the lines but extracts a completely different meaning, or if they take a blank paper or stamp signed for a specific purpose and use it for a different purpose to draft a fraudulent document, and by doing such acts cause or intend to cause loss or injury to another person's body, wealth, or rights—or even if no such loss occurs, if they perform the act to create a fraudulent benefit or proof for themselves or anyone else—then regardless of whether any action has been fully executed based on that fraudulent document or not, it shall be established as forgery."
Fraud (Jalasaji)
Unlike other legal systems, fraud is uniquely recognized and categorized as a specific statutory document offense within the traditional Nepali criminal legal framework.
According to No. 3 of the Chapter on Forgery of Documents in our Muluki Ain: "If a person, with the intent to extinguish another's right, cause their statute of limitations or court appearance date to lapse, or inflict any other form of loss, falsely asserts that a non-existent or unperformed matter actually happened, or alters dates, numbers, or contents to execute, cause to be executed, create, or procure the creation of a document with stamps or signatures, it shall be established as fraud."
Section 14(1)(c) of the Contract Act, 2056 (2000) also contains legal provisions regarding fraud.
Coercion (Karakap)
Coercion is also one of the prominent crimes among document-related offenses. The criminal activities falling under coercion include forcing someone to execute a document against their free will or compelling them to put their signature or stamp on such a document.
In the legal dictionary written by Top Bahadur Singh, it is explained that: "Depriving an individual of their liberty to force them to perform an action, taking them hostage, or threatening them with violence, physical assault, or death, as well as directing similar threats and control toward their parents, sons, or daughters, falls under the scope of coercion."
Under the old Muluki Ain, No. 24 of the Chapter on Court Procedure (Adalati Bandobast) outlines coercion as follows: "No one shall force, exploit, or coerce any individual into executing a document. Any document executed through such means shall be null and void. Except as otherwise provided by law, once a document is executed knowingly, willingly, and with a voluntary signature and stamp, that document shall be held valid and legally binding."
Crime Relating to Official Secrets (Sarkari Likhatharuhoko Gopanyata Sambandhi Aparadh)
Every nation makes arrangements to keep confidential and protect sensitive documents, records, and treaties of government and public offices. This is done to maintain peace, security, and public order within the country. This system is known as the secrecy of government documents.
To maintain the security, peace, and order of Nepal, the Secrecy of Documents Act, 2039 (1982) plays a vital role. It classifies and safely protects official papers, archives, and treaties that require preservation.
Unit 13 International Crime and Criminal Law (Antarrastriya Aparadh ra Faujdari Kanun)
The character of crime has become global. In today's context, where the entire world has moved forward under the concept of a global village, the perspective on looking at crime has also become global. Particularly during the historical era when human rights law developed, matters concerning international peace and security, protection of humanity, and human welfare became subjects of interest for nations across the world.
International criminal law is understood as a collective system of universally accepted and special principles and norms of international law established and developed among states to control criminality and punish individuals (or groups) who commit criminal acts. Due to the establishment of treaties and understandings among nations, and the growth of sentiments to prevent and control such crimes, international criminal law has become an indispensable mechanism of the modern world.
Classification of International Crime (Antarrastriya Aparadhharko Vargikaran)
Generally, crimes of an international character are classified based on the nature and gravity of the offense, under which crimes of the following nature are included:
· Genocide (Aamasamhar)
· Crime against Humanity (Manavata Viruddhako Aparadh)
· War Crime (Yuddha Aparadh)
· Crime of Aggression (Shatrutapurna Aparadh)