Introduction:

After the implementation of the Government Cases Act (1960) – which aimed to utilise officials from the executive branch of government for investigation, and to appoint government officials for representation in the court of law – the investigation and prosecution of cases in which the government is the complainant became procedurally separate. The Government Cases Act (1992), which replaced the 1960 Act, placed direct or indirect responsibility on the government prosecutor to deal with such cases. For all offences listed in schedule-1 of this Act, the responsibilities of deciding whether or not to proceed with a case, preparing the charge sheet, and filing the case lie with the government prosecutor. For cases under schedule-1, the government prosecutor is given direct responsibility. For cases in which the government is the complainant, but the offense is not listed in schedule-1 of the Act, the government prosecutor is not given the responsibility of litigation, but is given the responsibility of deciding whether or not to file the case. Under such condition, the government prosecutor is given indirect responsibility.

Provisions for prosecution after the implementation of Government Cases Act (1992):

Ever since the implementation of the Government Cases Act (1992), the police and investigation officials have fulfilled the responsibility of investigating offenses listed under schedule-1 of the Act. Upon completion of the investigation, the government prosecutor delegated by the Attorney General decides whether or not to file a case and takes responsibility for litigation. In this sense, the new Act did not give continuity to the old Act, which makes provision for the direct involvement of government prosecutor during the investigation. After the implementation of the 1992 Act, investigation and prosecution were mistaken to be completely separate procedures, under the jurisdiction of separate entities: police and government prosecutor. The new Act does – it might be useful to point out – make provisions for the indirect involvement of a government prosecutor in the investigation of a case: 

A) The police officer investigating the case must submit a preliminary report including the content of inquiry to the government prosecutor prior to beginning the inquiry. The prosecutor can give direction to the investigation officer as necessary.

B) The government prosecutor can give suggestions and advice to the officer conducting the investigation during the process.

C) The accused must give his statement in front of the government prosecutor.

D) In deciding whether or not to file a case, the government prosecutor can give direction for the gathering of more evidence, as well as conducting further inquiries.

The following are problems currently faced in the implementation of this law during prosecution:

The duration for which the accused can be placed under police custody is the same as the duration within which a case must be filed in court. It is not possible to correct mistakes during prosecution. The investigation ends with the beginning of the prosecution. The above-mentioned problems have not been resolved or addressed properly, as the Supreme Court has refused to review the litigation rights given to government prosecutors. The Court made this decision, despite of requests made by government prosecutors to bring this matter under judicial review.

The proposed Criminal Procedure Code (2010) gives full responsibility for prosecution to the government prosecutor in cases where the government is the complainant:

1) Separate procedures for investigation and prosecution in cases where the government is the complainant: Article 56 of this Code clarifies that cases shall be filed with the government as the complainant for offences – with exceptions – listed in schedule-1 and schedule-2 of the Code. Police officers will be responsible for investigating offenses in schedule-1 and the appropriate government office or officer will be responsible for investigating offenses listed in schedule-2. But the responsibility for filing the case lies with the government prosecutor. 

2) The provision to amend the charge sheet: There is a provision in this Code for making amendments to the charge sheet by making a formal request to the court, with reasons, after the approval of the Attorney General. This provision is applicable and relevant if additional evidence is found before the case is decided.

Once a case is filed, if statements are needed from others that are accused, or if more statements are needed from the accused, the prosecutor can make demands for additional investigation and statements, upon giving clarification.

For offenses listed in schedule-1 of the Code, if the case is not filed because of the lack of evidence, any crucial evidence found later can lead to the re-opening of the investigation and filing of the case.

For cases where more than one person are accused, cases may not always be filed against all individuals. But if the appellate government prosecutor’s office finds sufficient reasons to file the case, it may – in coordination with the Attorney General’s office – direct the concerned government prosecutor to act accordingly.

3) In the course of the investigation, if it is clear that police custody is unnecessary, the investigation officer, with the agreement of the prosecutor, can release the accused upon accepting security or bail, or in the custody of a responsible custodian on guarantee of attendance, or on parole. The investigation officer can also release the accused if he cannot obtain the agreement from the government prosecutor, as long as he/she can provide a detailed explanation. This provision can also be implemented for cases where the accused can no longer be lawfully detained even though the investigation has not been completed.

4) If the offense involves theft of less than one thousands rupees, involves first time pick-pocketing, begging, is worth a fine of three thousand rupees or less than one month’s imprisonment or both (in the case of a first time offense where it is not deemed practical to file a case), and is not damaging to the overall public good, then the prosecutor with the approval of the Attorney General may choose not to file a case, as per the Criminal Procedure Code. The following are stipulated as further conditions:

A. The prosecutor must make the accused promise not to repeat such offenses in the future.
B. The prosecutor must seize what is stolen or collect the fine and hand it over to the victim, or deposit it into the victim compensation fund.
C. If a case is not filed and the accused commits another offense within three years, the penalty from the last offense can also be added. Additionally, if the victim party cannot be satisfied with such a decision, there is a provision for it to file a case on its own.

5) Provision for preparing a charge sheet with request to reduce the sentence: Under this Code, if the accused assists the investigation officer during the investigation process in any way, his/her legally appropriate sentence can be reduced. A provision has been made for the prosecutor, at the request of the investigation officer, to prepare the charge sheet with the request for a reduced sentence.

6) Provision to not file a case when there is lack of sufficient evidence: This code gives indirect approval to the idea that the government prosecutor can decide to not file a case when there is lack of sufficient evidence.

7) There is a provision for collecting compensation for sentences handed out through prosecution and investigation done in bad faith. The provision for investigating such complaints is dealt by article 191 of the Criminal Procedure Code (2010).

In the duration of the investigation, the official who decides if the accused needs to be kept in custody can only receive official requests through the government prosecutor’s office. This provision mentioned in the Code includes the prosecutor in one additional step on this loop. Another provision in the Code gives continuity to the fact that the accused can only be kept in police custody during the investigation for 25 days. However, of all the offenses listed in schedule-1, the following offenses are likely to warrant police custody for up to 35 additional days if necessary: cases related to attempts on the life of the president, espionage, negative influence on army personnel, war against the state, support to an opposing country’s army, explosives, murder, kidnapping, rape, fraudulent medical treatment, fraud, privacy of documents. If the investigation cannot be completed within 25 days, the investigation officer together with the prosecutor can present a report to the official looking after the case, explaining why more time is needed for the investigation.

Drawbacks:

In the current law, there is no provision to help the accused if he/she accepts the charges and decides to assist in the investigation. Consequently, the accused is forced to lie in attempting to escape the punishment. The Criminal Procedure Code attempts to change this. Additionally, the Code attempts to change the existing belief that official legal prosecution is the only way to enforce the rule of law.

The Code divides offenses listed in schedule-1, investigated by the police, and those listed in schedule-2, investigated by government offices and officials. This has created some errors. For example, the offense registration book mentioned in schedule-7 of the Code is only recommended for the police offices. The fact that such registration books are necessary for offenses listed in schedule-2 is completely ignored.

The Code makes provision for releasing a person under police custody on security or bail, or in the custody of a responsible custodian on guarantee of attendance, or on parole. But it is unclear why the same provision has not been made for those who are under investigation but have stayed in police custody for the legally allowed duration. Only a provision for releasing the accused on parole has been made in such cases.

The Code gives continuity to a current provision that requires the investigation officer to take on two-way accountability. He/she is accountable not only to his/her senior officers, but also to the government prosecutor.

Conclusion:

In the present situation, official prosecution is the only pathway for enforcing the rule of law. In this system, the prosecutor decides whether or not to file a case. For those cases that were filed in the last three fiscal years, the success rate in district level courts has been 70 percent. For cases where the government is the complainant, the success rate has been around 42 percent for appellate courts and around 38 percent for the Supreme Court. These statistics are not satisfactory. In the fiscal year 2066-67, the district prosecutors’ offices decided to file 9420 cases and not to file 177 cases. In the fiscal year 2067-68, these offices decided to file 14,142 cases and not to file 484 cases. These statistics reveal that the rate of prosecution is very high but the success rate of cases is really low. The provisions made in this Code can be expected to bring positive changes to the current situation.

This research and recommendation paper prepared by Shree Kiran Poudel for the Nepal Constitution Foundation will be finalised based on the inputs given by various pressure groups: women’s, ethnic, Dalit, Madeshi, youth and others.

This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.