Police Personnel are the group of people who look for the safety and enforcement of the law regulating within the country. They are always looked at as a Strong, Fit, and Stubborn members of an official organisation whose main duty is to enforce the laws and to maintain society's decorum.
They are the ones who work for the nation, sacrifices self-life and life of their family members, who also have to leave their family at unexpected hours for society's betterment and goodwill. As much as we talk about the life of a Police officer and the hardships they go through both mentally and physically, the more we bar our family from joining in the special force. Whenever one discusses the job of a Policeman in Nepal, one out of many speakers happens to mention the biasness a Police Officer holds to some or other sort of individuals or, them taking advantage of unwanted situations. Therefore, to clarify the doubt that most of us are likely to have against Policemen along with the legal remedies that are provided, if in case a person is arrested without any warrant or if Police refuse to lodge an F.I.R or the fine levied by a Police Officer when any sort of vehicular misconduct is conducted by the driver while driving and other issues along with the legal aid are provided in this blog.
Before getting into the Crux of the subject-matter, the following definitions need to be cleared:
1. WARRANT - Out of all the warrant's, the one that is related to this blog is Arrest Warrant. Arrest Warrant is a warrant for the arrest of an accused or a person whose name is written on the warrant which is signed by the Judge. The arrest shall be conducted by Police officers only. Here, the arrest of a female needs to be done by female personnel only but if due to circumstance, a female Officer is unavailable then an officer on duty can conduct the arrest. ( Male Officer isn't allowed to use any physical force that is likely to dominate a female arrestee's strength)
NOTE : According to the s.46 of the Code of Criminal Procedure,1973, a Police-officer cannot arrest women before sunrise and after sunset.
* Can there be an arrest without a warrant?
- Yes, if the Police see you commit an offence or have reasonable grounds to believe that you have committed or about to commit an indictable offence, if they think it is in the public interest to arrest you in order to find out your identity, preserve evidence, or prevent the continuation of a crime. In such a case, where it is time-consuming to prepare the warrant and while the time police prepare for the warrant there's a chance that the offender might abscond, in such a case Police Officer can make an arrest without warrant. Similar Provisions are mentioned u/s. 9E of Civil Aviation Act, 2015 (1959), s.16 of Railways Act, 2020 (1963), and others.
Also, the Police officer must produce the accused person to the concerned District court within 24hours of the arrest as under s. 58(6) of Muluki Faujdari karyabidhi samhita, 2074.
2. SUMMON OR SUBPOENA- It is nothing but an order of the court to the parties of the case to attend a court. If 'A' files a case against 'B'(i.e, filing of a plaint) then the court orders B to be present before the court by forwarding the summon to 'B', and B needs to be present before the court with his reply to the plaintiff's accusations (i.e, written statement).
⦁ what if the person who is summoned to be presented before the court on a certain date fails to appear?
-As u/s. 59 (5) of Muluki Faujdhari karyabidhi Samhita, 2074, if the accused does not appear within the time limit specified in the summons, the court may, if it considers necessary to have the accused arrested and produced before it, issue a warrant for arrest. But, the court may order the extension of the time-limit for a period not exceeding fifteen days, after the termination of the period of existence of the force majeure event, excluding the time required for the journey if the accused makes a petition proving that he wasn't able to appear within the prescribed time limit.
3. BAILABLE OFFENCE- The offence for which Bail can be granted aka temporary release of an accused. Here, it is up to the investigating officer whether to grant the accused bail. Example - Pickpocketing, Hurt, offences against Religion, offence related to Untouchability and Discrimination, etc. Also, the circumstance where bail can be granted is mentioned u/s. 67 of Muluki Faujdari karyabidi Samhita, 2074.
But, granting Bail doesn't mean the accused no longer need to be present before the court. Yes, the case is still ongoing even if Bail is granted to the accused. And as time pass by, as the case comes to the verdict, if the Judge so pronounces the imprisonment for the accused then the accused will be kept behind the bars again.
4. NON BAILABLE OFFENCE- where a police officer arrests without warrant any person other than a person accused of a Non-Bailable Offence. For Example- Murder, Rape, Hijacking, Kidnapping, Murder followed by Rape, etc. Here, at times it can be seen that an accused in a Murder case is granted Bail because of his Medical conditions.
* Can a person who is a convict of an offence be granted Bail?
Before getting into the reasoning of the granting of bail to the accused, there are certain provisions that are needed to be cleared. As per the above definition, it is cleared that bail can only be granted in Bailable Offences. But, there have been instances where it is proved that the accused health is in serious condition and confinement of the accused inside the prison would be an injustice to a person's health. So, if shown proper medical reports stating that the confinement of the accused inside the prison would be detrimental to one's health and as under the provision of the constitution under A. 35 clear states that "every citizen shall have the right to free basic health services from the state, and no one shall be deprived of emergency health services", as the person imprisoned is still considered as a citizen, so, his basic health rights inside the prison would also come under the ambit of A.35 of the CON.
In Prithivi Malla's drunk hit and run case, the accused was granted bail on the basis of medical illness as proved before the court. As law comes with loopholes, this provision is misused by the filthy rich parties, as the provision of granting bail to the medical ill offenders is provided by the laws, Judges are left with no other option than granting of Bail on the basis of their medical history.
5. COGNIZABLE OFFENCE- An offence where Police can make an arrest without a warrant. In recent Vten's case aka Samir Ghising, people are miscontemplating the arrest was made without a warrant is illegal as per the laws. Here, the offence Vten a Nepali Rapper was accused of , inciting and promoting sedition against the authority for which a Police officer used the provision of making an arrest without a warrant also known as a Cognizable offence. Examples - for murder, rape, kidnapping, assault, etc. So, one can say that cognizable offence comes under Non-Bailable Offences except provided by law.
6. NON-COGNIZABLE OFFENCE- An Offence whereby a Police Officer has no authority to arrest without a warrant. Police officers can neither register the FIR nor can investigate or effect arrest without express permission or directions from the court. For minor offences - abusing each other, minor scuffles without injuries, intimidation etc.
7. ZERO F.I.R - To understand ZERO F.I.R, we need to know what F.I.R means. First Information Report is a written document prepared by the police when they receive information about the commission of a cognizable offence.
The General law of Jurisdiction suggests that the case needs to be registered in the Police Station where the crime has been committed but there can be a circumstance where a victim in a Rape case is raped in one province and on her way while escaping she reaches another state B. So, in such case the victim can report the offence to the nearest police station irrespective of the Jurisdiction. Here, the case after reporting will be transferred to the Police station of its Original Jurisdiction. This is a fairly introduced concept and Police officers in cases of serious offences are bind to report the crime.
⦁ What can be done if a Police officer refuses to register a First Information Report?
Yes, there can be instances where the Police officer denies to file the F.I.R. As under s.5 of Muluki Faujdari karyabidhi Samhita, 2074, in such a case the person can make a complaint along with an F.I.R to the concerned District Attorney or to the officer higher in rank than the officer who is required to register an F.I.R.
8. POLICE BRUTALITY - Brutality means physical violence or the use of greater cruelty. The unwarranted or excessive and often illegal use of force against civilians by Police officers is called Police Brutality. As per Amnesty International, Police Brutality might include beatings, racial abuse, unlawful killings, torture, or indiscriminate use of riot control agents at protests.
⦁ Whether spraying of water cannon against the protestors come under Police Brutality?
While the lockdown was going on, it was all over the news that the Police Personnel used Water cannons against the citizens while protesting (for the lack of Health facilities) to come under Police Brutality. whether or not, can be checked on the basis of the intention of both, the citizens and Police Personnel. While the lockdown was going on, strict guidelines were implemented by the Government for individuals safety and security. One out of many guidelines were to ensure less crowd or maintaining of the distance of at least 6ft between two individuals which was being violated by the protestors. As seen, there were near about 500 protestors on the streets, not maintaining social distancing at the time of the pandemic where Nepal is a country that has fewer resources was already failing to deliver the quality of health facilities to the infected person. Many advocateD stating that their freedom of speech and expression and peaceably assemble was violated by the Government. Though Constitution provides for the freedom of peaceable assembly of citizen and yes, the protest was a peaceful protest but, again as per the Infectious Disease Act 2020, the gathering of more than 20/25 people itself is punishable as an offence. The authority in charge had the liability of arresting each and every individual who had participated in the ongoing protest (with imprisonment of One year) but the Police Personnel instead of taking a big step to control the crowd sprayed water cannon to control the mishappening which was likely to happen if the number increases which was overspread of the Corona Virus. Here, Protestors got emotional and took the decision of protest without thinking of its repercussion. Yes, the reason for the protest was justifiable but the act of protestors protesting in large mass was unjust.
In this case, instead of protesting on the streets in a large mass, the citizens could have filed a writ against the Government of Nepal for misconducting and mismanagement of health facilities that were made available to the citizens of Nepal. The citizens need to co-operate and act smart accordingly. Here, whatever the issue comes forward the right to approach the Supreme Court of Nepal in case of violation on the basis of Public interest is always available and anyone who thinks Government is acting ultra vires can approach the court and maximum justice will be granted by the Court forthwith.
POLICE IMPOSING FINES ON THE PETTY OFFENCES: FOR DRIVERS
Though the courts are specially designed to impose punishment and penalise the offenders of petty or serious offences but, not in all circumstance can a court look against the offenders. For example, not everyone who has broken the road rules can go before the court. In such a case, if a person is found drunk driving then the police in charge have the authority of imposing the fine amount that is prescribed as per the laws. As a citizen, we are deemed to have knowledge about the fines that can be imposed upon us.
U/Chapter 10 s.160 of the Motor Vehicles and Transport Management Act, 2049 (1993) talks about the imposition of the punishment by the competent authority against the driver who breaches traffic or vehicle rules and regulations. As a citizen, it is always beneficial for you to know the fines that can be imposed if violated any such rules. The Imposition is listed hereafter :
Now that we have discussed the fine that can be imposed by the courts incase of aforesaid events, the following are the fine that can be imposed by the Police officer on the spot if any petty offences if committed while driving a vehicle, u/s.165 of the said Act:
for the following offences:
Elaboration:
If a person is charged with violating the aforesaid petty offences then the transport officer or the present police officer can impose the fine based on the number he has been charged with committing the offence. Example: If a person is caught drunk driving then he shall be fined for Rs. 25-50 for the first time, 50-100rs. for the 2nd time and 100-200rs for the 3rd time. Also, there have been instances where the Police officer has punched a hole in the driving license based on the times the driver has been caught of drunk driving.
⦁ one can also ask "WHAT IF THE PERSON ISNT ABLE TO PAY THE FINE AMOUNT ON THE SPOT"?
- If so, then the police inspector shall give a traffic ticket to him and ask him to pay the sum amount within a period of 24hrs. However, in today's time, the police officer generates a fine ticket which could either be paid online or via. Bank account to which the license can be picked up from the nearest police station. One can ask the police officer about the details of picking up the license card.
⦁ AND WHAT IF THE PERSON ISNT ABLE TO PAY THE SUM AMOUNT WITHIN THE
AFORESAID TIME?
- then he is liable to pay the fine of not exceeding 1000rs, and can even suspend the license or route permit for not exceeding for more than 1mnth (if he is the owner of the motor vehicle). and in the event of failure of payment of the fine amt then the license can be revoked by the competent authority. [as under section 164(5) of the said act]
SOME CASES AGAINST POLICE PERSONNEL IN NEPAL
1. HIGH PROFILE SUDAN SCAM
In 2017,A division bench of Chief Justice Sushila Karki and Justice Bishwomber Prasad Shrestha pronounced a judgement on the case to embezzlement of state funds during the procurement of armed personnel carriers and other equipment meant for Nepali peacekeepers in Sudan.
Supreme court pronounced a judgement of Jail and fines for three former inspector generals of Nepal: Hem Bahadur Gurung, Ramesh Chand Thakuri and Om Bikram Rana, and other police officers of various ranks in Sudan Scam Case. The apex court imposed two-year jail and a fine amt to Rs. 50,000 on former IG Om Bikram Rana, whereas it ordered a fine of Rs.40,000 and one-year prison term to rest two formers IGP'S Hem Bahadur and Ramesh Chand Thakuri.
Not only that, Court slapped a fine of 1yr prison and a fine of rs.40000 on then additional inspector generals Shyam singh Thapa and Deepak Singh Thangden.
Also, DIG Deep Kumar Shrestha and then SSP Ravi Pratap were also given 6mnth of jail and Rs.30,000 fine each.
2. CONTEMPT OF COURT AGAINST POLICE OFFICERS
On feb, 2020 Three chand party members were released by Supreme court on the hearing of the writ of habeas corpus, but policemen from the Metropolitan Police Circle, Singh Durbar immediately arrested them from the entrance of Supreme Court. Justice Ishwar Prasad Khatiwada and Dambar Bahadur Shahi issued the order to file the contempt of court case against IG Thakur Prasad Gyawalai, Chief of Nepal Police : Senior Supreintendent of Police uttam Raj Subedi, Chief of Metropolitan Police Range, Teku: DSP Kaushal Kumar Budathoki, and DSP santosh Singh Rathour, Chief of Metropolitan Police Circle, sorakhutte.
The court said that "not compliying with the orders issued by the Supreme Court is violative of A. 128(4) OF the Constitution of Nepal. which says: All must abide by any interpretation of the constitution or law made by or any legal principle laid down by the Supreme Court in the course of trying a lawsuit. If anyone makes obstruction in the dispensation of justice by, or disregard any order of judgement handed down by, it or any of its subordinate courts, the SC may in accrodance with law, initiate proceedings and impose punishment for contempt.
3. 33.5KG GOLD SMUGGLING CASE
One of the biggest gold smuggling racket caught in Nepal, It all started with the murder of Shanam Shakya( 2nd March, 2018) whose video of torture killing by his inmates went viral on the internet. Soon after the investigation was commenced, the Morang police discovered that shakya's was killed out by a group of smugglers to retrive 33.5kgs og Gold that had been robbed from them.
Many big names were attached to this case. Except, shakya's two other more deaths who were found to be working there committed suicide. The Prime suspects along with the people who were seen in the video, who purchased the battery used for torturing shakya in the video along with the Police officers were arrested. District Attorney Morang has filed a charge-sheet against 75 individuals while 31 of the accused are still at large and court has granted judicial custody to 34 individuals. The former and active senior police officers like Niraula, Lohani, kc and sanjel have also been release on the general date as granted by the court and has resumed their service till then.
4. NIRMALA PANTA'S CASE
On 2018, a 13yr old Nirmala Panta was found raped and murdered in a sugarcane field near her home after she had gone missing. Out of many issues in this case, Dilip Bista who was presented by the police as a prime suspect has filed against 4 inverstigating officers charging them for torturing Dilip to extract false confession. Not only that, Durga devi, filed a case against the officer incharge of the case charging him of destroying of the prime evidence of the case after the incident happened.
later, Kanchanpur District Court acquitted 8 police officers for lack of evidence to prove that they have committed the act of violence in the said case.
5. RANJAN KOIRALA'S CASE
On Jan, 2012 Ranjan Koirala was held guilty by the District court, kathmandu in the charges of murdering his wife and burning her to death. He was sentenced for life imprisonment with confiscation of his property. Later, the then Patan Appellate Court had also upheld this verdict. Thereafter, on 2020, Koirala had filed an appeal at the Supreme court, in response to which the court reduced the sentence to eight and a half years. Indeed, the Supreme Court agreed with the finding of the lower court that Ranjan Koirala had murdered his wife and burned her body to destroy all evidence, cut the sentence short by using the discretionary power under No. 188 of the then Muluki Ain, Chapter on Court Procedure. The justices argued that Ranjan Koirala should be release to take care of his children and the life imprisonment punishment would be rigorous and could cause an adverse effect on his children. Supreme Court giving 8and half yrs punishment to Ranjan Koirala shook the Nepal Judiciary. Soon after the pronouncement of the judgement, the decision was sent to Judicial Review.
If we talk about the defence whether one can use force against the act of the
Police-officer, then in such a case, one cannot defend himself if an on-duty Police officer is acting within his power and duties. Here, No person can later ask
for the defence of self-defence, if the force has been used by the police
officer in course of exercising his powers or acting as per the decision of the the court which is carried out in a good faith.
Further, under
s.24 of the National Criminal Code, 2074, Everyone has a right to
defend against a harm caused to one’s body, life and property. However, the
right of private defense shall be considered when there is a reasonable cause
to believe that the body, life or property of his or her own or of any
other person cannot be defended against any illegal harm unless any act is done
immediately.
However, , u/s. 25 of the act states
the right of private defence isn’t available in the following circumstances:
1. 1. If there is possibility of getting aid
or protection from public authority immediately to defend the body or property
while causing harm,
2. 2. Harm caused by Self-provocation,
3. 3. Where a public servant does an act in
good faith in pursuance to the order of a court,
4. 4. Where a public servant does an act in
good faith in pursuance of his official power ,
5. 5. Where any act is done by a person in
pursuance of a direction given in good faith by a public servant in the
exercise of his or her official power.
However, a person shall
not be deprived of his Right of Private defense in following conditions :
a. Where
the person or defender does not know the doer of the act was a Public Servant
b. Where
there is no reasonable reason to believe that the doer of the act is a public
servant &
c. Where
there is no reasonable reason to know that the doer of the act was given
direction by the public servant or state.
In addition to the
aforesaid sections, u/s.26(f) states that it requires instant retaliation by a
security personnel deputed by the order of competent authority and results in
the death of the person, in such a case it cannot be said to be considered as
an offence under Homicide.
Thus, the objective of this blog is not to defame any class
of individual that too Public servant who has been serving our country in difficult times. The main focus of this blog is on educating the citizens of Nepal
who happens to be unaware about the penalization of fine when the certain act of
misconduct is carried out by a Driver/ Rider in lieu of riding a vehicle. Further,
this blog is for the law graduates and the citizens, for them to know about the
laws in simple language which is guaranteed by the Law Commission Nepal.
[As the purpose of this Blog is to educate the citizens and non-citizens concerning the fines that can be charged on vehicular misconduct and the remedies that are available when Police officers acts ultra vires. Here, I have provided the laws with respect to the aforesaid content. There are various other Acts and Cases that I haven't mentioned in this blog as the spectrum differs, but will surely provide information in near future]
YASHASWEE THAPA
ADVOCATE
NEPAL BAR COUNCIL
.png)
.png)
.png)
Comments
Post a Comment