A Critical Review of the Codification of… 43

A Critical Review of the Codification of Criminal

Laws in Nepal

Dr. Rajit Bhakta Pradhananga#

Shreeprakash Upreti*

Abstract
The criminal law is one of valid concern of states to prohibit undesirable human
conducts. Every jurisdiction develops its criminal justice system including legal and
institutional structures pursuant to one's requirements. Though Nepal has its own
specific historical background of criminal law, but it is realized that the current criminal
law should be modernized in a single, comprehensive and consolidated form. To meet
such requirement, Nepal has made a milestone effort to codify criminal laws into a single
code. The code has provisioned for some new arrangements and has tried to modernize
the legal systems in congruence with contemporary contexts. It brings changes in the
legal and institutional structures in the future. In this context, it is necessary to pay
sufficient attention to strengthen legal system and to make compatible to the
institutional structures including the courts to ensure the implementation of the code in
the day to come.

1. General Introduction
The criminal law is a major branch of public law; primarily it aims to maintain
peace and security in the contemporary society. It comprises both substantive and
procedural aspects. Though the norms accepted in the criminal laws rule need to
endorse by the competent representative body of people formed pursuant to
legitimate process but it derives theoretical validity from the various principles
developed within criminal jurisprudence. The nature of criminal law is to create
criminal liability in the case of breaking of norms under criminal law, unlike the
civil liability, which is not transferrable to anyone. The criminal law is invoked as a
last resort to achieve the objective of state to control or to regulate the human
behavior. It is, therefore, normative structures that play the important role to
strengthen state in the view point of its continuation by invoking formal criminal
sanction.

#
Professor, Nepal Law Campus, Tribhuvan University, Nepal and Senior Advocate, Nepal Bar
Association. Professor Pradhananga holds LL.M. (Civil and Criminal Law) and Ph.D. (Criminal
Law) from Delhi University, India.
*
District Judge, Hon. Upreti holds LL.M. (Criminal Law) and presently Ph.D. Scholar on
Punishment System in Nepal at Faculty of Law, Tribhuvan University, Nepal.
44 NJA Law Journal 2014

The criminal law, laws relating to other matters, moral rules and social values,
religious rules and alike function concurrently regulates and controls the human
behaviour in the society, whereas the criminal law is taken as a last resort.
Sometimes, only the deterrent effects of criminal law may contribute to achieve its
ultimate objective. The prime concern of the criminal law is to prohibit behaviour
that represents a serious wrong against individuals or against some fundamental
social values or institutions.2 In essence, a society or state ceases to exist in
absence of criminal law. Therefore, the enactment and enforcement of criminal
law is one of the core functions of every state.

From the very beginning of society, some rules of criminal law were accepted and
advanced as minimum rule running the society. Later on, it was advanced as a
separate branch of public law. The structure of criminal law may vary jurisdiction
to jurisdiction pursuant to their respective specific history and guiding major legal
systems. Even to the present context, there is no parity in relation to model of
codification. Some jurisdictions adopt separate enactment of particular law for
governing particular areas of crimes and some promulgate a single form of code,
and other use the both system mixing separate law for certain types of crimes and
code for traditional types of crimes. Nepal has followed the later model enacting
special law and general code concurrently. Nepali Legal System has its own specific
historical background and, with the pace of time, she has accepted basic norms of
other major legal systems or legal traditions. Currently, Nepali legal system is near
to the basic characteristics of common legal system since it has accepted the
adversarial criminal proceedings.3 However, there are some legal provisions that
are identical to the civil legal system.4 Due to the existing model of legal
structures, criminal legal provisions can be found in scattered form.

Though the plural efforts have been made for making a single consolidated code of
penal law and criminal procedural law in Nepal but no effort has been converted
into reality. In this course, the latest effort is going on to meet the destination. A
complete draft Penal Code, Criminal Procedural Code and Sentencing Act, 2010
was introduced in the Legislative-Parliament but before its enactment, the house
was dissolved and ipso facto the process came to an end. The New Legislative-
Parliament has been formed and it is hoped that the draft will introduce in the
house in the day to come. The draft code will be the governing criminal law in
future and that must be compatible to cope the potential challenges of the legal
system. It is crucial time to make the advance draft having theoretical bases and
equipped from the modern conceptual foundation before its commencement as
law. This article is also an endeavor to serve this objective and it has covered the
efforts towards codification of Nepali criminal laws, the major challenges behind

2
Andrew Ashworth, (2009), PRINCIPLES OF CRIMINAL LAW, New York: Oxford University Press,
p. 1 .
3
The State Cases Act, 1990.
4
The Muluki Ain, Chapter on 'Court Management' 115 No. and 133No.
A Critical Review of the Codification of… 45

implementation and enactment of the Draft Criminal Code, 2010 (2067) and
major measures for the improvement of judicial practices. Other aspects of the
Code have not been analyzed in this work.

2. Effort towards Codification of Criminal Laws in Nepal

Nepal has its own history of codification and enactment of law from the very
beginning of its political history. Before the unification of modern Nepal, during
the time of Medieval era, a complete code having all the characteristics of a legal
code, had been promulgated by the King Jayasthiti Malla, which was named
"Manav Nyayashastra."5 King Ram Shah, who was the King of Gorkha principality
and predecessor of the King Prithvi Narayan Shah, unifier of the modern Nepal,
promulgated legal codes or laws in their respective times. After unification of
modern Nepal, legal system of the country was governed by the religious rules and
traditional customs of the contemporary society for some decades.

Janga Bahadur Kunwar came into power through three incidents known as Kot
Parva, Bhandarkhal Parva and Alau Parva, which took place in 1846-47.6 Janga
Bahadur had contributed in the history of codification of law. The promulgation of
the first legal code of Nepal on 5 January 1854 opened a new phase in the history
of criminal law in Nepal. It had 163 chapters and each chapter had several sections
covering land, tenures and disputes, sale, purchases and exchange of property,
inheritance laws, inter-caste relation and civil and criminal procedures and
punishment.7 Though the Country Code continues the various forms of cruel
punishment and punishment of same crime also varied depending on the caste of
the victims or criminals, but it abolished the Devine test and reduced the physical
torture as a form of punishment. The codification of the Country Code 1854 is
considered as starting point of codified law in Nepali legal system. The codified law
also modified time to time as per the need of the society and changing context.
The first Country Code was in force until the commencement of new secular
Country Code in 1963.

The first Rana Prime Minister Janga Bahadur Rana was highly impressed by
Napoleon Code during his Europe visit. When he was in France, he saw a statue of
Napoleon Bonaparte holding a legal code in one hand and in another a sward.8
Within a month of his return to Nepal in 1851 AD, he appointed a law council for
the reform and to codify then prevailing law scattered in different sources of law

5
It is also known as 'Nyayabikashini' which was promulgated in 1436 BS (1380 AD). See also Prof.
Dr. Rajit Bhakta Pradhananga and Dilliram Shrestha (2005), 'An Analysis of Nyayabikashini in
Context of modern Criminal Law', KANOON, Vol. 73, pp. 3-10. .
6
T.R. Vaidya and T.R. Manandhar, (1985), CRIME AND PUNISHMENT IN NEPAL A HISTORICAL
PERSPECTIVE, Kathmandu: Bini Vaidya and Purna Devi Manandhar, p. 189.
7
Ibid, pp.191-192.
8
Rewati Raman Khanal, (2059 BS), NEPALKO KANOONI ITIHASKO RUPREKHA, Kathmandu:
Mrs.Sharaswati Khanal, p. 295.
46 NJA Law Journal 2014

like Rukka, Sanad, Sawal Shastras etc. The council was constituted comprising 230
members including all seniors Ranas, Chautarias and distinguished personalities of
that time. The council functioned approximately for three years to prepare the
draft of the Code. Finally, on 5 January 1854, the Country Code, 1854 (1910) was
promulgated under the red seal of King Surendra, red seal of crown prince Trailokya
and yellow seal of ex-King Rajendra.9 It was a milestone and foundation of modern
Nepali legal system, which became a source of all future legislations and
enactments. It laid down a basic foundation for the practice of written enactment.
The codification of the consolidated and unified legal code may be said to be the
biggest contribution on development of Nepali legal history, because in addition to
unifying the scattered prevailing law into a single code, it introduced the concept
of 'justice according to law'.10 Later on, the council was converted as a main judicial
institute after the completion of assigned task to draft the Code.11 The
promulgated Code was based on Hindu Dharmasastra and customary laws.
The promulgation of the Country Code, 1854 (1910 BS) started a new historical
phase in the Nepali legal history. It was the first exhaustive, comprehensive and
consolidated written code. It dealt not only with crimes, civil and procedural law
but also provided provisions relating to administrative law, family law, land law,
revenue law etc. The aim was to bring uniformity among law practitioners in the
different parts of the country. This was clearly written in the preamble of the Code.
The code was the first to update treatise of law made by a large body of councilors,
senior Ranas, and applicable to whole country. It was a thorough and
comprehensive document intended to regulate almost all aspects of contemporary
socio-economic, religious, administrative and cultural life in the society.12 The code
made every citizen of the country responsible for the maintenance of law and
order. The code was based on the principle of caste system. The crime and
punishment were varied based on caste and sex. However, as compared to
previous criminal laws, it was considered more humane and progressive. It reduced
savagery and severity of punishment like sentence on death penalty, mutilation
and banishment which were common punishment even for minor crimes in the
beginning of modern Nepal.13 It followed the prohibitive approach i.e. it had
prohibited certain human conducts and declared particular punishment forthe
infringement of such legal norms.
The Country Code of 1854 was promulgated in a single book. It included 163
chapters and the book was comprised of 1400 pages in its original form. Among

9
Gyaindra Bahadur Shrestha, (1990), A COMMENTARY ON THE MULUKI AIN, Kathmandu:
Pairavi Prakashan, pp.1-3.
10
Dr. Rajit Bhakta Pradhananga, (2000), "Overview of Law of Homicide in Nepal: Modern Context",
ANNUAL SURVEY OF NEPALESE LAW, Kathmandu: Nepal Bar Council, p. 264.
11
Bishal Khanal, (2044 BS), Nepalko Nyaya Prashasan Ek Aitihashik Shimhawalokana, Kathmandu:
Ram Prasad Khanal, p. 213.
12
Dr. Rajit Bhakta Pradhananga, (2003), “An Overviews of Efforts towards Codification of Criminal Law
in Nepal.” NEPAL LAW REVIEW, Vol. 16, p. 75.
13
Ibid, p.76.
A Critical Review of the Codification of… 47

163 chapters, 87 chapters addressed for different kinds of criminal offences and
punishment thereof. They may be roughly divided in seven categories based on
subject matters regulated and prohibited by it. One chapter was directly related to
forgery of document. There were 14 chapters, related to offences against human
body and life. In this category of crimes, the code included homicide, abortion,
hurt, defamation, human trafficking, offences relating to treatment and vehicular
offence. In the category of offences relating to property, the theft, arson, and
offence relating to losing and founding of animals were included. The majority of
the chapters relating to criminal law were directly related to sexual offences. It
contained two chapters on rape, 7 chapters on indecent assault, 13 chapters on
incest, and 21 chapters on different kinds of consensual sexual offences except
between husband and wife.14
The codification of first Country Code, 1854 was the great outcome to make
comprehensive and consolidated code for the country. However, it had a number
of weaknesses and shortcomings. There were lack of demarcation between state
cases and private cases among the criminal cases. There were no standard and
determined form of procedures relating to criminal cases. It basically focused on
the mode of execution of the punishment.
Avoiding the ordeal system in evidence collection, equality before the law, less
severe punishment as compared to early periods and unified forms of law were
major contribution of the first Country Code 1854. The major amendments took
place in the year 1888 and in1935. These two amendments played significant role
for the advancement of Nepali law and especially in the area of criminal laws.
These two amendments not only introduced new provisions in the old Country
Code but also gave the Country Code to a new shape. The amendments of 1888 and
of 1935 were popularly known as "the second Country Code of 1888 and the Third
Country Code 1935" respectively.15
The political change of 1950, the Rana regime was extinguished and the country
tried to move forward to the democratic system. Though political changes had
occurred but the transitional period had been so longer. Pradhan Nyayalaya (apex
court) established in 2008 BS. Consequently, an adversarial system of justice was
introduced in Nepal. Many special Acts were enacted but the old Country Code was
continued having unjustifiable criminalization and cruel and inhumane
punishments until to enactment the new Country Code. During the period, The
State Cases Act, 1961 was enacted and enlarging the scope of an adversarial
system. It was important event for the criminal justice system. Penal system in
Nepal was extremely inhumane, cruel and discriminatory until the introduction of
the ‘New Country Code, 1963' and the 'Repeal Some Criminal Cases and Remitting
Punishment Act, 1964'. The new laws abolished inhumane and cruel punishments
including Shaving the head (Mudne), Pricking with needles (Khopne), Applying hot

14
Ibid, p.77.
15
Rajit Bhakta Pradhananga, (1995), GENERAL INTRODUCTION TO THE CRIMINAL LAW OF
NEPAL, Kathmandu: Ratna Pustak Bhandar, pp. 9-11.
48 NJA Law Journal 2014

metals on the body to leave permanent mark (Damal garne), Degrading caste (jat
patit garne), Feeding faces (Abhaksha khuwaune), Removing the sacred thread
(Janai jhikidine), Making leak soles of feet (Paitala chataune), Forced pilgrimage
(Tirtha ghumaune) and banishing from village or town. The abolition of these
punishments was the important event in the history of penal reform in Nepal.16 In
1961, the King formed the Fourth Law Commission to re-draft and modernize
Country Code. According to S. P. Gyawali, the chairman of the Commission, the
Commission had mainly focused on consolidation and unification of the
provisions scattered in different prevailing laws, Sanads (Edicts), and Sawal (Rule),
modernization of punishment system and determination of punishment not on
the basis of caste, status of the offender and victim but on the basis of nature and
gravity of the offence. The Reform Commission deliberated about 13 months to
re-draft the code. Finally, in 1963 Country Code was promulgated by the King and
it came into force on 17 August 1963 and it has contributed to create the secular
criminal law in the country.17 It is declared as 'General Law of the Land'.18 In the
view point of modernizing and democratizing the criminal justice system and
punishment system; the Country Code, 1963 has contributed significantly. It is
regarded as landmark enactment in the history of Nepali legal system.
Apart from the arrangement of criminal legal structure through the Country Code
and other special laws in the country, the plural efforts have been made for
making a single, consolidated and theoretically advanced criminal code and
criminal procedural code from the beginning of democratic era (1950) to the
contemporary republican phase. Though the Country Code has incomparable
significance in the realm of criminal justice system of Nepal but it contains much
more lacunas and it is mandatory to make competent law to deal in the new area
of crimes. At the same time; it is also necessary to fulfill the obligations imposed
by the international instruments. Many provisions of criminalization, punishment
and criminal procedures can be found in scattered forms under the different
special laws and general laws. Therefore, the state has made plural attempts for
reforming and making a single consolidated criminal and criminal procedural code
for governing the penal system. Different Proposed Penal/Criminal Codes were
also made and submitted to the concern authority by the assigned Committees but
it was limited only in 'Draft' rather than implementation. The Penal Code,
Criminal Procedural Code and Sentencing Act, 2010 has been drafted and
submitted to legislative-parliament as latest effort but before its enactment, the
house dissolved, and consequently, the last effort became incomplete. The efforts
towards codification of Nepali criminal laws can be traced out as underneath:

16
PRI and CIVICT, (2002), Penal Reform in Nepal, Kathmandu. p. 16.
17
Dr. Rajit Bhakta Pradhananga, (2003), “An Overviews of Efforts Towards Codification of Criminal
Law in Nepal.” Nepal Law Review, Vol. 16, p. 83.
18
The Muluki Ain, Chapter on 'Preliminary Statement' No. 4.
A Critical Review of the Codification of… 49

2.1. Proposed Nepal Penal Code, 1955 (2012)

It was the first effort to separate codification of criminal law in Nepali legal
history. Nepal Law Reform Commission was formed in 1953 and the Commission
drafted the complete code in 1955. The legal provisions of the draft were highly
influenced by the Indian Penal Code, 1860. It was published in Nepal Gazette in
order to obtain public opinion and comments on it but never made further
discussion for reforming and enforcing it as a penal code in the country. The
purpose of that code was mentioned in its preamble as: "Whereas, it is expedient
to consolidate the provisions of the penal law scattered in different Nepali laws
and to make contemporary provisions for penal law in context of changed
circumstances of the country, on the advice and the consent of the Council of
Ministers. His Majesty King has enacted this Penal Code."19

The Code had comprised of 31 different Chapters and 377 Sections; among them
some provisions had incorporated pursuant to the notion at that time. The
concept of conspiracy, attempt and abetment were introduced for the first time in
the code. Crimes against the state, relating to mutiny, public tranquility,
corruption, election, against the public justice, counterfeiting of coin, stamps,
weights and measurement, public interest, health, safety, conveniences and
morals, religion, life and human body, marriage, property, documents,
defamation and criminal force etc. were covered by the code. The code had
adopted the definitive approach i.e. firstly defined the crime and its elements and
then prescribed punishment for commission of such crime. The code had
prescribed different forms of punishment including capital punishment, life
imprisonment, and rigorous imprisonment with hard labor, simple periodic
imprisonment, confiscation, fine and confiscation of the property of the offender.
Adopting of definitive approach and first effort to codify a single consolidate code
are the significance of this code in the history of Nepali Criminal/Penal Law. This
code has provided a foundation for making further codes in the future time
including the recent one.

2.2. Proposed Penal Code, 1973 (2030) and Criminal Procedural Code,
1977 (2034)
It was second effort to codify separate criminal law and the first effort to codify
separate criminal procedural code in Nepali legal history. The fifth Nepal Law
Reform Commission was constituted in 1972 and the Commission prepared and
published both Criminal Code, 1973 and Criminal Procedural Code, 1977 in Nepal
Gazette to seek opinion, suggestions and comments from the public.20 The
Criminal Code was not solely influenced by the Indian Penal Code, 1860 as earlier
one but was influenced to some extent. It tried to make scientific and systematic
Nepali criminal laws and also incorporated principles and concepts suitable to the

19
The Preamble, Proposed Draft Penal Code, 1955 (2012 BS).
20
Bishal Khanal, (2044 B.S.), Nepalko Nyaya Prashasan Ek Aitihashik Shimhawalokana, Kathmandu:
Ram Prasad. Khanal, p. 88.
50 NJA Law Journal 2014

Nepali context and social reality.21 The Criminal Procedure Code was designed in a
way to make simple, practical and scientific criminal procedures. Although that
was not applicable in practice, it provided modern conceptual background to
formulate legislations and other codes.

It had adopted the definitive approach as same as prior code. It comprised 31

chapters and 257 sections.22 The code contained the provisions relating to crime
against the state, public justice and tranquility, corruption, election,
counterfeiting of coin, stamps, weights and measurement, life and human body,
marriage, property, documents, defamation and use of criminal force, sexual
offences etc.

The Criminal Procedure Code, 1977 contained 15 chapters, 165 sections and 30
schedules23 to simplify criminal procedures. It had made the definitions of certain
useful terms and mentioned all the procedures along with form and formats. The
FIR, investigation, adjudication and judgment execution have covered by the
procedure code. Being a foundation of criminal procedure code, it plays
momentous role in the field of reforming and consolidating the criminal procedure
in the country. It was not limited to draft rather transformed into law.

2.3. Proposed Criminal Code and Criminal Procedure Code, 2001 (2058)
The third attempt is also made towards the codification of separate criminal code
and criminal procedure code in 2001 (2058 BS). A Task Force of seven members
under the convenership of Attorney General was formed for the purpose of
undertaking studies and recommends the Government of Nepal.24 The task force
worked for eight and half months. It prepared and submitted Drafts of Criminal
Code and Criminal Procedure Code to the Government separately. Along with the
codes the task force also suggested certain recommendations for taking necessary
steps in order to reform and reorganize criminal justice system in the country.
After submission of the draft code, the Government of Nepal formed a five
members' Preparation Committee for Implementation of Draft Criminal Code and
Criminal Procedure Code. The committee performed the assigned work and
submitted the report to the government within the time.

The Criminal Code, 2001 has adopted the punitive approach contrary to the
approach adopted by the previous penal codes. It means the Code without making
definitions of certain crime it has prohibited or criminalized certain human
conducts or behaviors as a crime and prescribed punishment for the commission
of such acts or conducts including omissions. It has comprised 33 chapters and
274 sections. The Code along with the previous provisions, has provisioned some

21
Dr. Rajit Bhakta Pradhananga, (2001), "Nepalese Draft Penal Codes in Evolution of Homicide Law
in Nepal: A Critical Review", Nyayadoot, Issue No. 117, p.5.
22
The Proposed Criminal Code, 1973 (2030 BS).
23
The Proposed Criminal Procedure Code, 1977 (2034 BS).
24
Report of Proposed Criminal Code and Criminal Procedure Code, 2001.
A Critical Review of the Codification of… 51

new phenomena or areas like- sexual harassment, sexual abuse of children,

offences relating to social discrimination and insulting behavior, offence relating
to privacy and aloneness, offence against the national and public heritage. It has
also comprised the areas spreading of HIV; water pollution, environment pollution
and obstruction in public place etc. This Code for the first time has made the
provision for compensation to victim. .

The Criminal Procedure Code, 2001 is also significant in the field of codification. It
was a second effort to make a separate and consolidated Criminal procedure. It has
15 chapters, 176 sections and 37 schedules. Formats of most of the documents
relating to the case formation to decision execution are scheduled under it. The
new conceptions and practices are also included in the code. The provision of Plea
Bargaining, provision relating to causes to be engaged in compulsory labor,25
provision relating to sending prisoner in the reform home or community centre,26
provisions relating to punishment of imprisonment,27 provision to release foreign
nationals from imprisonment instead amount paid28 etc. are newly introduced
provisions in the Code.

3. The Draft Criminal Code, 2010 (2067 BS): Recent Effort

towards Codification of Nepali Criminal Laws
This is the latest effort to make separate code in the area of criminal law, criminal
procedural law and sentencing law. The effort to make separate sentencing law is
the first effort under this code. The Government of Nepal has formed Criminal
Law Reform and Revision Taskforce on 3 December, 2008 under the convenorship
of Justice Kalyan Shrestha, Supreme Court. The objective of Task Force was to
submit a report together with suggestions for reforming Nepali criminal law by
making timely reform and to revise the draft of the Penal Code and Criminal
Procedure Code which were published after submission to the then Government of
Nepal. Secretary of Ministry of Law and Justice, Secretary of Ministry of Home
Affairs, Secretary of Nepal Law Commission, Deputy Attorney General of Attorney
General's Office, Registrar of the Supreme Court, Representative of Nepal Police,
Representative of Nepal Bar Association, An officer of gazetted class II designated
by Government of Nepal, and Joint Secretary of Ministry of Law and Justice and
Parliamentary Affairs and Prof. Dr. Rajit Bhakta Pradhanaga, Nepal Law Campus
were members of the Task Force.29 The Task Force submitted a complete report to
the Prime Minister on 20 May, 2010.

25
The Proposed Criminal Procedure Code, 2001, Sec. 134.
26
Ibid. Sec. 136.
27
Ibid. Sec. 152.
28
Ibid. Sec. 153.
29
Proposed Criminal Code, Criminal Procedure Code, and Sentencing Act, 2010, Kathmandu: The
Ministry of Law and Justice, p. 3.
52 NJA Law Journal 2014

This draft code is more scientific and comprehensive as compare to previous codes
since the Task Force has revised all the provisions of previous codes. It was the
first code that introduced in the parliament as a bill but unfortunately the
parliament was dissolved before they come as an Act. It was truly revised the
provisions incorporated in the previous codes and existing governing laws. At the
same time, this code has made an endeavor to make it compatible it with the
international instruments and to comprise contemporary conceptual standards
developed within the criminal jurisprudence.30 Though there are some rooms to
reform in it in view of theoretical and practical aspects but it can be taken as an
achievement towards the effort of codification of criminal law in the history of
Nepali legal system. The basic and significant features of the proposed criminal
code31 can be mentioned as underneath:

3.1. Application of extra-territorial jurisdiction

This code is formulated as a general criminal law and is usually applicable within
the territory of concerned country. Though this code was proposed as a general
law of the land but, in relation to the certain types of offenses having heinous and
severe nature committed against the Nepal or Nepali citizens may be subject to
extra-territorial jurisdiction. This code has proposed to empower domestic courts
with extra-territorial jurisdiction for some offenses.32

3.2. Clear provisions of defense

Excuse or immunity from criminal liabilities in certain circumstances is general
principle of criminal jurisprudence. The existing criminal law has also comprised some
provisions in this area but there is some insufficiency. The code has made clear
provisions in different sections under chapter 2. The terminology of private defense is
used instead of using the term self-defense since it contains narrower sense.

3.3. Scientific arrangement to the different levels of Mens Rea

The criminal jurisprudence has developed a concept that the crime of relative
liability is general rule and others (Crimes of strict liability or vicarious liability)
are exceptions. On this stand point, except the statutes explicitly speak, all crimes
fall under this category and all the traditional crimes can be taken as crime of this
category. Criminal liability need to determine on the basis of mental element of
the crime concern since the degree of blameworthiness and criminality based on
the different levels of this element (Mens Rea). There are four different levels of
mens rea namely; intention, knowledge, recklessness, and negligence, and each
level comprise certain elements that differentiate from the remaining. One of the
area of criticism to the current criminal law is it fails to arrange different levels of
mens rea maintaining the reciprocity with the blameworthiness and culpability. In

30
See for detail, Prof Dr. Rajit Bhakta Pradhananga and Shreeprakash Upreti (2009), "Ensuring
International Human Rights Standard in Nepalese Criminal Law", Nepal Law Review, Kathmandu:
Nepal Law Campus, Volume 21, pp. 1-17.
31
Supra note 28, pp. 7-12.
32
Ibid, sec. 2.
A Critical Review of the Codification of… 53

totality, the proposed code has arranged the different levels of mens rea in
jurisprudentially accepted manner in the relevant chapters.33

3.4. Extending the age of majority for criminal responsibility

The age of majority, for the purpose of criminal liability, is sixteen pursuant to the
current legal structure. The provision of article 1 of the Convention on the Rights
of Child concluded in 1990 to which Nepal is also a party, prescribes it as age of
eighteen. In this connection, the proposed code has created a fourth category of
age of infant person that who has attained sixteen years of age but not attained
eighteen years of age is entitled to two-third of the punishment provided for a
major person. No changes have been made in the former three categories of infant
in the view point of punishment as prescribed in the section 11 of the Children
Act, 1992.

3.5. Systematic definition of crime and arrangement of punishment

This code has adopted a definitive approach, in which firstly the conduct is defined
as crime and subsequently prescribed the quantum of punishment, in the course of
arrangement criminalization and provisions of punishments. It has subject wisely
consolidated various forms of crimes that are scattered in different existing laws.
There is no consistency in the view point of using definitive or punitive approach
in the current laws. For the purpose to ease consolidation, crimes are defined in
twenty seven chapters: offense against state, offence against public tranquility,
offense relating to contempt of authority of public officers, offense against public
interest, health, safety, convenience and morals, offense relating to arms and
ammunition, offense relating to explosives, offense against national and public
heritage, offense relating to religion, offense relating to discrimination and
degrading behavior, offense relating to marriage, offense relating to human
body, offense against the protection of abortion, offense relating to hurt, offense
relating to illegal detention, offense relating to disappearance of person, offense
relating to abduction or taking hostage, offense relating to rape, offense relating
to medical treatment, offense relating to theft and robbery, offense relating to
cheating, criminal breach of trust and extortion, offense relating to counterfeiting
currency, offense relating to stamp, offense relating to measurement, offense
relating to documents, offense relating to trespass and criminal mischief, and
offense relating to cattle. Among these offenses many crimes are found in the
existing laws and remaining is newly identified.

33
Proposed Criminal Code, Criminal Procedure Code, and Sentencing Act, 2010, Kathmandu: The
Ministry of Law and Justice, Chapter on 'Homicide'. See for detail, Prof Dr. Rajit Bhakta
Pradhananga, Shreeprakash Upreti and Ashok Kumar Basnet (2069), "An Analytical Comment on
Mens Rea in the Proposed Criminal Code, 2067", Supreme Court Bar Journal, Volume 6, pp. 1-39.
54 NJA Law Journal 2014

3.6. Acceptance of tort liability

Though the Nepali legal structure has not accepted tort liability as a form of
distinct nature in between the liability of civil nature and criminal nature even to
the date but it is arranged as private party criminal cases. The code has recognized
the act of defaming a living or dead person as criminal tort and is punished and
additional punishment is proposed for defaming through electronic or mass
media. Furthermore, some acts against privacy are also defined as the offences
against privacy and punishment is prescribed thereof.

3.7. Identification of new offenses

Basically the proposed code has continued all the areas of criminalization,
particularly the traditional crimes unless it becomes irrelevant with contemporary
context. Some undesirable conducts that have to be criminalized but injurious to
society and country and some conducts need to criminalize pursuant to the
obligation created by the international instruments in which Nepal is a party, have
been identified and proposed for criminalization. The new areas of criminalization
as identified by the proposed code can be illustrated as genocide, assault on
President, transmission of communicable disease, spreading the disease of human
immune deficiency virus, water pollution, publicity for prostitution and allowing
houses or land to be used therefore, manufacturing or selling obscene book,
pamphlet etc undesired from social morality, manufacturing or dealing of atomic,
chemical, biological or toxic weapon, preparing or laying down mines, converting
public heritage, house, land into personal one, encroachment upon natural
resources, dishonoring or damaging flag or coats-of-arms of Nepal or foreign
country with which Nepal has diplomatic relation, assault upon religious faith,
damage to religious or holy places, conversion of religion, discriminatory
treatment, forced labor, bondage, slavery, torture or inhuman treatment
conducting test on human body without consent, variation in contract or bid
work, criminal misappropriation of property, criminal breach of trust burning
bank note or currency, criminal trespass, cruelty to animal. Likewise, uniformity is
maintained in such matters which are not clearly defined as offense in Nepal law
or are scattered throughout different laws such as contempt of the authority of
public officer, offense against public justice, offense against national and public
heritage, criminal breach of trust and extortion, criminal trespass and criminal
mischief.

3.8. Changing in the forms of punishment

The proposed code has premeditated different forms of punishment for different
offenses on the bases of principle of proportion that the punishment should be
based on gravity of offense and offender's culpability. Life imprisonment, fixed
term imprisonment or fine or both; imprisonment and fine and fine have
proposed in the code. On the basis of severity of offense, lifelong imprisonment is
proposed for death caused by torture or cruelty, death caused by explosion
followed by abduction of aero-plane, death caused by poisoning drinking and
A Critical Review of the Codification of… 55

foodstuff of public use, death caused by rape. On the basis of current legal
provision,34 life imprisonment is understood as to be imprisonment for twenty
years. The existing system of reckoning twenty years for the purpose of fractional
punishment has been reviewed in the code. This code has proposed that for the
purpose of fractional punishment, life imprisonment shall be computed as 30
years imprisonment and as lifelong imprisonment for heinous crime. The existing
legal provision of confiscation, being unjustified and inappropriate in the
viewpoint of human rights, is proposed to remove accepting the provision
proposed in the draft code of 2000.

3.9. Application of judicial model of punishment

Judicial model of punishment gives discretionary power to the judge to choose
appropriate sentence to the convicted offender within the legislative permission.
This code, in most of the proposed provisions, follows the judicial model
mentioning only the maximum range of punishment so that an appropriate
punishment could be determined on the basis of aggravating and mitigating
factors of offences. The code mentions that whether to fix the minimum range of
punishment may be a matter of debate in itself and logic may be put forward for
and against it. The fixing of a minimum punishment to an offense may be severer,
injustice and that may induce to the judge to orient towards acquitting rather than
convicting and punishing the offender. Therefore, the code, trusting the discretion
of presiding judge in relation to choose appropriate quantum of punishment, has
preferred to adopt the judicial model of punishment rather than legislative
model.35

3.10. Consistent provisions of fine

Fine is not a new form of punishment in the Nepali criminal justice system. But
the provisions relating to fine are not consistent in the existing legal structure.
This code has given special attention toward the fine as a form of punishment in
the view point of parity and consistency. In the case of fine, except where a
provision of amount in question is specified, only maximum amount of fine is
proposed. To ensure that an appropriate fine could be imposed on the basis of
aggravating and mitigating factors of offense, punishment only of fine is proposed
for some offenses.

3.11. Provisions of compensation

One of the areas of criticism to the existing Nepali criminal justice system is less
attention has given towards the victim of crime from the beginning. In the view
point of Victimology, it is necessary to give sufficient preference to the victim of
crime in the existing criminal law and it is true time to address this issue. In this
context, the proposed code has made an endeavor by accepting compensation as

34
The Muluki Ain, Chapter on 'Punishment', No. 6.
35
Prof Dr. Rajit Bhakta Pradhananga and Shreeprakash Upreti (2067), "A Critical Observation of the
Proposed Sentencing Act", Prosecution Journal, Kathmandu: Office of the Attorney General Nepal,
Volume 1, pp. 1-22.
56 NJA Law Journal 2014

an integral part of criminal justice administration. It proposes to cause the

offender to pay compensation to the victim and also proposes for interim
compensation. Though the provision of compensation is not absolutely new
concept in the Nepali criminal justice administration since there are some
provisions of compensation in offense of rape, taking hostage or abduction,
human trafficking, domestic violence and alike but its insufficiency become an
issue to be reformed. Additionally, it is also proposed that if a victim of an offense
claims for compensation from the offender, the court has to determine the
amount of compensation at the very time of deciding the case. The Task force has
drafted a separate Sentencing Act with the code and this aspect is also considered
while specifying the quantum of punishment pursuant to this Code.

3.12. Separate criminalization of inchoate crimes

The existing criminal legal provisions have also criminalized the inchoate crime in
the respective chapters of Country Code and others special laws. It is not new
concept under the Nepali criminal justice system but there is no separate legal
provision in relation to inchoate crime. This code has arranged a separate chapter
(Chapter-3) for criminalizing criminal conspiracy, attempt, incitement and
abetment.36

3.13. Arrangement of provisions of limitation

Limitation is significant since it is a substantive part of criminal law that
determines the time period of filling complaint against the perpetrator. This code
has arranged the provision of limitation in the respective chapter and provisions
relating to limitation in respect of offense are determined mostly on the basis of
existing law. Generally no limitation is proposed for offense of heinous and grave
nature in the code. Limitation under existing laws in respect of such offense as
rape is proposed to be extended. Generally, the assumption of limitation starting
from the date of commission of crime or the date of having knowledge of the
commission of crime is accepted in the code; however, in cases where due to the
nature of or effect of crime or complaint cannot be made despite knowing that
crime is committed, a provision is proposed to the effect that limitation starts
from the date of release from such offense. Like the current law, limitation for
filing complaint in respect of each offense is arranged at the end of the concerned
chapter.

4. The Major Challenges Behind Enactment and

Implementation of the Draft Criminal Code, 2010 (2067)
Drafting of proposed Criminal Code, Criminal Procedure Code, and Sentencing
Act, 2010 in the view point of reforming existing criminal legal structure is one of
the achievements in the history of codification of criminal law in Nepal but its

36
See for detail Prof Dr. Rajit Bhakta Pradhananga (2068), "A Study on Criminal Liability,
Participation in a Crime and Inchoate Offences in Modern Criminal Jurisprudential Context",
Supreme Court Bar Journal, Kathmandu: Supreme Court Bar, Volume 5, pp. 1-26.
A Critical Review of the Codification of… 57

significance can be translated into living reality only after its enactment and
implementation in the country. It is not the first effort to codify criminal law
separately in the history but no effort become successful. In the case of this code,
it was, for the first time, introduced in the legislative-parliament once. Before
making comprehensive discussion in the house, the parliament collapsed and
consequently need to introduce it again in the parliament. Due to the political
commitment towards its enactment, it can be assumed that it will be entered into
the parliamentary process but it is not the sole problem in connection with its
prompt enactment and implement in full extent. Primarily it requires a
comprehensive discussion on every section with justification of changing context.
Similarly, the compatibility of the existing and proposed institutional structures to
implement law becomes equally significant to take into account in this phase. The
major challenges behind enactment and implementation of the draft criminal code
can be traced out as follows:

4.1. Setting of basic norms

The second constituent assembly has been formed recently in the country and the
assembly works as a legislative-parliament pursuant to the Interim Constitution of
Nepal, 2007. This shows that the primary function of assembly is to set out the
basic norms of the fundamental law of the land. There are many issues to be
settled which are significant in the process of constitution making including the
model of federation of country and forms of government. The experience of the
first constituent assembly is not as satisfactory as a viewpoint of performance of
legislative-parliament, particularly to enact the criminal code since it was
introduced in the house at that time. Sufficient time and attention need to pay in
the house for passing the proposed code that comprises the provisions of criminal
procedure and sentencing. Being a constituent assembly, obviously, it provides
first preference towards the constitution making process. This may minimize the
attention of the house to enact the proposed code.

4.2. Shifting paradigm of Nepali criminal law by codification

Enacting separate code for governing criminal justice system will be a shifting
paradigm in the history of Nepali legal system. Various efforts made in the past to
codify it and ending of the process without making code signifies that it is not an
easy task. Replacement of current Country Code by the proposed code can be taken
as an achievement of the parliament that creates a benchmark in the history of
criminal law in the country. The first Country Code of 1854 run 110 years and the
current Country Code of 1963 is running over the 50 years. Each legal structure has
its own significance and contribution in the country. The proposed code, being a
modern and compatible with the contemporary context, need to introduce but it is
also equally important to accept it by the at least majority legislators. Therefore,
until the majority legislators become ready to shift the paradigm established by
the previous law and legal tradition, it is difficult to enact. The commentaries on
the proposed code may play significant role in the course of discussion in the
house. The National Judicial Academy has prepared section wise commentaries on
58 NJA Law Journal 2014

the draft criminal code, criminal procedure code and proposed Sentencing Bill with
taking the help of experts.37

4.3. Theoretical issues

Though the code has made an effort to accept the current concepts and theoretical
bases in the course of proposing legal provisions in the codes but even after the
final submission of the code there are some lacuna and conflicting provisions in
the viewpoint of theoretical aspects. The proposed provisions in the areas of
criminalization, constituent elements of crimes, preference to take into custody to
the accused person rather release on bail may conflict with the established
principles within the criminal jurisprudence. Those theoretical issues need to
settle before its enactment that may take much more time in the house.

4.4. Issues of criminalization and decriminalization

Criminalization and decriminalization38 of certain human conduct is one of the
core issues at the time of codification of criminal law since it is relating to its basic
prohibitive character. In the same way, it must be harmonious with the social
norms and congruence with the theoretical foundations. There are some issues to
be addressed by the code is ongoing controversy in the society even to the date.
ipso facto invalidation of polygamous marriage, criminalization of contractual
liability without segregation, disparity on punishment proposed in killing of
animal, rejecting the concept of legal pluralism, criminalization in the area of
prostitution, leaving room to criminalize human conduct against the principle of
strict construction in some area, over criminalization in some area like section 78
of the code, and general criminalization of inchoate crimes under the separate
chapter may be controversial issues in the viewpoint of principle of
criminalization. The views of legislators may be diverse on those issues that may
cause delay to accept the code within due time.

4.5. Application of judicial model of punishment

Application of judicial model of punishment in the course of sentencing is one of
the significant characters of this code. This model permits presiding judge to
choose appropriate sentence to inflict upon the offender within the permitted
range. Theoretically it is one of the best models of sentencing that requires
competent judges as precondition. Every judge must be competent to implement
this model properly in criminal adjudication and to achieve the legislative
objectives. The current legislation has not preferred this model and proposed code
has shifted paradigm in this connection. It may be a controversial issue in the

37
Section Wise Commentaries on the Draft Criminal Code, Criminal Procedure Code and Proposed
Sentencing Bill, (2014), Lalitpur: National Judicial Academy.
38
See for detail, Prof Dr. Rajit Bhakta Pradhananga and Balram Prasad Raut (2013), "Concept of
Criminalization, Penalization and principle of Legality in Nepalese Judicial Discourse", NJA Law
Journal, Lalitpur: National Judicial Academy, Volume 6, pp. 90-118.
A Critical Review of the Codification of… 59

parliament. Whether or not the legislators fully believe on the trust and integrity
of current judges is one of the questions to be answered in the house. Therefore, it
may cause delay in passing the proposed code.

4.6. Institutional capacity of law enforcement agencies

It is a special nature of legal structure that all the laws are enforced through the
institutional capacity of law enforcement wings of the state. The new code to be
passed as law obviously brings new challenges in the viewpoint of enforcement.
The law enforcement agencies of the state should be capable to face the potential
challenges in the days to come for the purpose of applying code in the field. It is
also one of the areas to be discussed in the parliament before its enactment.

5. The Foremost Measures for the Improvement of Judicial Practices

The judiciary is one of the major agencies of implementation of existing law, and
after the introduction of new code; every tier of court should be competent to
enforce legal provisions pursued in the code. The current court practices based and
developed on the basis of existing Country Code and new changes to be brought by
the code may be stranger at the application level. Investigation, prosecution,
adjudication, sentencing and applying the new reformative measures will be
difficult in the days to come. Therefore, the basic improvement in the judicial
practices becomes mandatory with the adaptation of proposed code. The foremost
measures to be reformed for the improvement of judicial practices can be
mentioned as following:

5.1. Crime investigating wing

The crime investigating agency must be competent to enforce criminal law in
reality since the criminal case should be framed and gained its strength through
proper investigation. The scientific test and evidence have great value in criminal
cases that to prove or to disprove in the adjudication. The form of crimes and
modus operandi of crimes are changing with the changing patterns of other
variables in the surroundings. The proposed code has identified some new areas of
criminalization that may require special compatibilities in the areas of crime
investigation. Current low rate of conviction39 in the criminal cases show the level
of performance of crime investigating wing since it is relied on the traditional
model mostly based on taking of statement of accused and witnesses rather
proving crime by the scientific evidences. There is a lack of special wing within
Nepal police for investigation having adequate physical, financial and competent
human resources. The human resources are required to develop to deals with
special type of crimes. Crime investigation is a distinct responsibility of police as
compared to the other duties. The competent and experienced investigating police
personnel transfer to the other area where she/he may not need to work for crime

39
Ishwor Prasad Khatiwada, (2014), "Reality of Nepalese Criminal Justice System and Preamble of
Reform", Strengthen of Criminal Justice System, Kathmandu: Office of Attorney General, Nepal, p.
61.
60 NJA Law Journal 2014

investigation. This system does not support the specialization in crime

investigation. There should be a competent wing in each district for this purpose.
Only the scientific, prompt and perfect crime investigation can enhance the
judicial practices and may achieve objectives of criminal justice system. Therefore,
reformation of crime investigating wing of the state is primarily mandatory to
improve the judicial practices in the days to come.

5.2. Prosecuting agency

Prosecution against the suspected person is a crucial phase in criminal proceedings
that determines the claim against the accused must be based on the accurate and
legal evaluation of the evidences available in the case. Ultimate authority of
prosecution in the criminal cases on behalf of government of Nepal lies over the
Attorney General of Nepal and every district Attorney exercises the authority
delegated by the Attorney General. Current low conviction rate in the criminal
cases signify that the rooms to reform in prosecuting agency. Pursuant to the
current system, criminal prosecution solely based on the investigation of crime
investing agency and there should be coordination between two agencies. Public
prosecutor is empowered to instruct to the investigator in the course of
investigation and to follow the instructions is duty of investing officer. The public
attorney offices throughout the country are suffering from the lack of physical,
financial and sound human resources. Every prosecutor must be professional
having sound theoretical knowledge and resources for smooth functioning of the
criminal justice system. In the adversarial system, the court does not go beyond
the charge sheet and evidences so produced before the court. In the context of
commencement of new code with new and changed provisions, the prosecuting
agency must be compatible as a key agency of criminal justice system.

5.3. Institutional strengthening of court

The Court system of Nepal is based on its traditional working styles even to the
date. Changing the tiers of courts time to time on the basis of political changes
does not bring change in its mode of justice delivery. Judges and personnel of the
court discharging their regular function as usual without accepting the new
concept developed in the realm of legal field. Criminal justice system is in peril at
present since the basic norms accepted by the constitution are not applying in the
inferior courts. The proposed code has introduced new concept in both substantive
and procedural part of criminal law. Separate Sentencing Act is also proposed that
is absolutely new in our context. In this context, the institutional strengthening of
courts is mandatory for application of proposed provisions of the code. Basically
judges and remaining personnel of the court should be trained and equipped by
the new concepts admitted for future. Therefore, to the improvement of judicial
practices, before enforcement of the proposed code, extensive training to the
judges of lower courts needs to be arranged.

5.4. Sentencing
Sentencing is a crucial issue of the existing criminal justice system since certain
objectives of punishment have been set out by the legislature. It is a process of
A Critical Review of the Codification of… 61

imposing punishment to the convicted offender within the elaborate system of

substantive and procedural criminal law. Though there is no separate sentencing
law under the existing legal system but the criminal code is proposed with separate
Sentencing Act. The introduction of such law will be new experience in our justice
system. The Nepali legal framework has not introduced separate hearing for
sentencing to the convicted offender till date. Other segments within the
sentencing process can be comparable that are available in different general and
special current laws. The Sentencing Act is proposed having several provisions
including separate hearing. After introduction of separate codes for governing
criminal substantive and procedural matters, Nepali sentencing system obviously
will be standard and modern. To enforce the proposed Act, some institutional
structures need to establish and the human resources to be involved in this
institution need to train properly.

6. Conclusion
The criminal law is a strict law; secular law and last resort to control the
undesirable human conduct. The existence of criminal law is one of the indicators
of sovereign power that provides validity to the continuation of the state. It
cannot be imagined the existence of the state in absence of efficacious criminal
law. Every jurisdiction of this world has their own criminal justice system
including legal and institutional structures. The same is applicable in respect of
Nepali jurisdiction as well. Nepal has made a great effort to codify a single,
consolidated and compatible criminal code at present. It accepted new concepts
and modernized the legal provisions congruence with contemporary context. It
brings change in the criminal proceedings after their enactment and enforcement.
The achievements of objective set forth by the code will depend on institutional
compatibility and functional capacity of the institutional structure that are
responsible for the enforcwment of criminal law. Therefore, it is necessary to pay
sufficient attention to strengthen and make compatible to the institutional
structures including the courts.