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Adversarial System Vs Inquisitorial System in Nepal

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Nepali legal system originally belonged to the first categories. It developed over a long period of time independently on the basis of religious scriptures like vedas,surtis and smrits of manu yagavalkya narada which were be principle reference for jutice during the development of legal system from the period of kirats to shahs. The legal system of Nepal has been developed through two stages. The first is termed as the era of unmodified law and the second stage is called the era of codified law. The first stage or era of unmodified belongs to the karat era, Lichhavi era, Malla era and shah era prior to 1853 A.D. customs, tradition and social practices were regarded as law in this stage. The body of law was divided in two parts i.e civil and criminal. To hear the different nature of cases, various kinds of courts were formed accordingly. The procedural law was very specific. The whole system of law was based on indigenous customary law which was largely influenced by Hindu philosophy. The era of codified la began with the promulgation of national code 1853 A.D. The code was influenced by the Napoleon code of France. The code is initiation of the Prime Minister Junga Bahadur Rana, who had been inspired by the Nepolean code of France during his Europe visit. This code of Nepal first ever embodied the principle of equality before law and equal protection of law in its preamble. Nepalese legal system has no any division between public and private law. It has two categories of laws are constitutional law and statutory law. The constitution has been regarded as the fundamental law of the land therefore any laws inconsistent with it no longer remains valid.

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Criminal justice system is comprised of crime, criminal law, police, prosecutors, judges, criminals and victim and courts. The main aim of the criminal justice is to punish the offender and to provide justice for victims. It also prevents the potential offender from committing a crime. Violation of criminal law affects the society at large. Criminal law deals with crime and punishment. Criminal law is divided into types they are substantive criminal law and procedural criminal law. Substantive criminal law prescribes and criminalizes certain acts of individual thereby stipulating punishment. It recognizes the rights of the victims. Criminal procedural Law is invoked in every stages of criminal justice system from investigation to the execution of the final decision. Principle of fair trial and natural justice is applied in every criminal cases. Part -3, article 20 (rights regarding justice) of the Constitution of Nepal 2072 and article 22 (Right against torture) are the legal provisions regarding the principle of fair trial. Therefore, it is a prime concern of the state to bring the offender to justice through fair and impartial investigation, prosecution and adjudication process. This research paper briefly study about the criminal justice and proceeding system in Nepal and futher study about the criminal offense in Nepal.

As every research paper has its limitation, this paper also does not have any exception. Firstly this research paper is based only upon the doctrinal review of the books available and online resources. Secondly, this research paper only covers the criminal justice and criminal proceeding in Nepal. Thirdly this research paper also has a word limitation.

The term criminal justice refers to the agencies of government charged with enforcing law, adjudicating criminals, and correcting criminal conduct. A criminal justice system is a set of legal and social institution for enforcing the criminal law in accordance with a defined set of procedural rules and limitation. According to Black’s law dictionary, “the network of courts and tribunals which deal with criminal law and its enforcement”. Criminal procedure is the rules of law governing the procedures by which crimes are investigated, prosecuted, and punished. Regarding to the criminal justice, there are three phrase are pre-trial, trial, and post-trial. In pre-trial phases, country is the prosecutor to the criminal charges. Openly saying that police leads the investigation and collects evidence, finds an action of suspension and detains the suspect into the custody. There are different power and duty of investigating officer are to record the statement of eye witness and person who have known about the crime and prepare the legal document. To carry out the research and seizure on any suspected place or person. To take permission of the court to detain more than 24 hours to the suspect. To follow the legal direction of the prosecutor. To submit the materials or document of evidential value which are received after filing a case in the court through prosecutor. To present witness in the court through the prosecutor on the stipulated time and date. If offender is to file a case, such information can be transfer to government attorney office. After that, either there is enough evidence or not, and sufficient to prosecute publicly is analyzed by such authority, to prosecute further or send back that file to police or give a caution only. In trial phases, district court can be issued the summons that is a call attaining the accused one in the court, or either the court can be issue a warrant of arrest. Such prosecution is represented by the lawyer and legal aid or unpaid lawyer is also provided to assist to offender, if requires. Prior to trail there is statutory requirement for disclosure by the prosecution and defense of material relevant to the case. They are details of any alibis and details of the witness. Details of any alibis means people who can provide proof of the accused’s whereabouts at the time of the crime. Details of the witness means people who may have been something relevant to the crime. In post-trial phase, ultimately judge has a competent power to send the defendant either in the imprisonment or payment of fine or recovery of defense cost.

Furthermore, regarding the categories of criminal offense in the Nepal, there are three groups are simple offense, Grevious offense, and heinous offense. Simple offence refers to less serious crimes. If any person committed a simple offence then he/she liable up to 3 years imprisonment and 30 thousand fine. Such as road traffic offense and simple hurt which can be heard by district court or local judicial bodies. Grevious offense refers to serious crime such as theft, burglary which can be heard by district court, high court, or Supreme courts as well. If any person committed a grevious crime then he/she liable up to 3 to 10 years imprisonment and 30 thousand to 1 lakh fine. Heinous crime refers to the most serious crime such as murder, rape which can be heard by district court, high court, and Supreme courts. If any person committed a heinous crime then he/she are liable up to 10 year to life imprisonment.

During the proceedings of the case both sides of the disputes or offense present gathering the evidence by collecting information from cross-examination and Judges remain neutral to both the parties. The principle of criminal law is that accused must be proved beyond the reasonable doubt and burden of proof goes to the prosecutor, not to the offender. If the crime accused is not proved beyond the reasonable doubt, the accused or under arrestee can be given a bail or released temporarily. Sometimes, bailment can be reject if offender will not reappear in the court or will carry the crimes again, if there are some clear decieving grounds. When trial commences, the defendant is advised to change or confess the accusation to decrease the sentence, if the defendant is guilty, verdict is given on the issue, otherwise defendant is released. Any person who has received sentence up to 1 year imprisonment can get off by paying fine. The ratio is Rs 300 for 1 days. Any accused who helps the investigation officer and confesses his/her guilt can get concession in punishment. In other ma enterprise, it is 25% and in group involvement 50%.

Institutionalized Criminal Justice System in Nepal started with the promulgation of Mukluk Ain. It introduced a number concepts developed by the Inquisitorial System based on Napoleon Code. A few imported procedures were: No arrest and search shall take place after the sunset and before the sunrise. Similar provision is found even today in the French and Belgian procedural laws. Suspect’s testimony was conducted in the court without an oath. Whereas the witnesses were not subjected to testimony with oath, so that if they commit perjury could be punished. This practice is still in force in Nepal. This is a common practice in countries where the inquisitorial system applies. Where inquisitorial system prevails, the police have no power to interrogate the suspect. The judge himself interrogates the suspect. Nepal, in the past, practiced the same system. As a reminiscent of the system, the suspect is interrogated by judge in the court even today. Prior to 1951, the following practice was adopted by ditha and bichari together interrogated suspect. They called witnesses, if he/she denied. If witnesses confirmed his/her guilt, he/she was interrogated, and denial at this stage resulted in torture.

In countries where inquisitorial system was practiced, the confession was always emphasized. In Nepal, in the past the confession was the only most reliable evidence. Even today, the law prescribes that a person confessing the crime at court need not wait for other evidence for conviction. Hence, the trail can finish the same day the confession is recorded. 1993, the police power of investigating crime was not independent. The police was supervised and monitored by court. This is a common practice in the inquisitorial system. In Nepal, even these days the police have to take permission of the court to detain the person for investigation. Since French system did not have the concept of plea bargain, the Muluki Ain did have nothing such provision. The judicial system which practices inquisitorial system does not have exclusionary rules. Nepal does not have this practice too. Clause 17 of the Section of Court Management in the Muluki Ain has a nullity practice provision, which is most common in the inquisitorial system. The judge made referral to the police for investigation, and secure evidence. The suspect was tried by court, but at the meantime the court had been involved in investigation of the crime. Apex Court Act, (Pradahan Nyaylaya Ain), 2008. Introduced procedures in Court Familiar in the Accusatorial System. Civil Liberty Act, 2012. This Act introduced the concept of ‘liberties’ of persons to defend through lawyers in matters of rights. State Cases Act, 2017. This Act transferred the Court’s power of investigation to Police and Prosecutors, court being an umpire. Legal Practice Act, 2025. This introduced formally the concept of Defense Bar. Evidence Act, 2031. Shifted the burden of proof on State. Transformation of procedures from Inquisitorial System to Accusatorial System took, place but our practice did not change. We continued to ‘rely on confession’,- most important character of inquisitorial system. We introduced defense bar, but did not have Plea Bargain system, on which the accusatorial system functions. Lawyers have no role in the investigation stage. We introduced burden of proof on state, but failed to ‘develop coordination’ between police and prosecutors. We introduced person’s statement as evidence, but failed to ‘introduce exclusionary rule’, so that tainted confession could be removed. Reform of “Criminal Justice System” in Nepal ‘is not the primarily the reform in laws’, ‘it is rather reform in practice’, and thus “attitudes”.

Nepal does not have a separate criminal trial or criminal bench. According to the constitution of Nepal 2072, the Supreme courts is high court and lower on the judicial hierarchy are the high court and district courts. There are many changes occur in the time of inquisitorial system vs adversarial system. In the time of inquisitorial system, confession was always emphasized and relevance evidence accused had no right to remain silence. But while practicing the adversarial system, both sides of the disputes or offences present gathering the evidence and present an attack to opponents by collecting information from cross-examination. Accused most proved beyond the reasonable doubt and burden of proof goes to the prosecutor, not to the offender. While practicing the inquisitorial system, there was no concept of plea barging but now there is a concept of plea barging. When trial commences, the defendant is advised to change or confess the accusation to decrease the sentence. Any accused who helps the investigating officer and confesses his/her guilt can get concession in punishment. Therefore now a days also many problem of investigation process but somewhere positive change is occur in criminal justice and criminal proceeding system in Nepal.

Bibliography

1. Brown Sally Rice Gillian D, professional English is use.

2. https://www:academia.edu/33773481/characterstics-of-existing-nepali-legal-system-concepts-sources-original-or-hbrid

3. Constitution of Nepal, 2072

4. Muluki criminal code 2074

5. Legal.xpertxone.com/criminal-justice-system           

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