29th Poush , Kathmandu. Cricketer Sandeep Lamichhane, who is in jail on rape charges, has been released on a bail of Rs 20 lakh. But the High Court Patan’s order to release him on a bond of 20 lakhs does not mention any provision of the Civil Code of Criminal Procedure Act.
The bench of Judges Dhruvraj Nand and Ramesh Dhakal overruled the district court’s order to send him to prison for preliminary investigation, but did not mention the legal system in the order to release Sandeep on bail.
It was also natural that they could not mention the legal system, because the legal system that matches the evidence and the situation in Missile would not ask Lamichhane for bail, but would have sent him to prison. The High Court ruled that Lamichhane should be granted bail on five grounds. But according to the legal provisions of the day Aadhaar, the judges have not disclosed.
According to the first basis mentioned in the order, Lamichhane was released on the basis that the victim girl’s bail was completed. The high court ordered that Lamichhane should not be detained as some of the evidences have already been processed.
As the second basis, the High Court pointed out that the possibility or suspicion that the victim could be pressured or influenced to make an adverse bank letter is irrelevant. Even if the accused Lamichhane exerted pressure and influence on her claim, there is no need to keep her in prison as it would be meaningless. If we look at the basis taken by the court, after the acquittal, it seems that hundreds of other accused of rape cases who are in prison should be released on bail.
As the third basis, the court has pointed out the situation of the defendant Lamichhane. It was informed during the bench debate that Lamichhane was going through a state of mental stress. The High Court has not asked for any documents to prove that he is suffering from mental problems and legal professionals have not submitted any documents either. It seems that the court considers the matter that was brought to attention during the debate as the basis.
From the immediate evidence, the defendant is found guilty, which is the main basis for detaining the accused. But the High Court, Patan has envisaged a new condition saying that even in such a case, the defendant must be kept in custody.
It is not clear on the basis of which legal provision it says so. The court claimed that the condition was not attracted in the case of Lamichhane, saying that there was sufficient consideration in this regard. The provisions of the Criminal Procedure Code are not discussed in his discussion.
The existing legal situation is given priority over other national values and principles while adjudicating disputed matters.
“According to criminal jurisprudence, the court should be lenient if it is appropriate to allow the accused to proceed with the trial of the case without incarceration.” The order has been revoked.’ The High Court has not even mentioned the legal basis of the order to release Lamichhane on bail.
In any criminal case, there is a legal provision that the accused should be detained, released on bail or released on a simple date. Section 67 of the Civil Code of Criminal Procedure Act 2074 requires that the accused be detained only on certain grounds.
First of all, there must be a basis for believing that the accused is guilty or is guilty from the immediate evidence.
Secondly, if there is a case of Schedule-1 and 2 punishable with imprisonment for life or more than 3 years, the accused should be sent to prison.
Thirdly, there is a provision in the Criminal Procedure Code that those who attempt to commit such crimes, incite others or commit criminal conspiracy, should be sent to prison.
‘Evidence immediately obtained’ is an important basis to be considered by those who decide to detain or not to detain any accused until the case is decided. The High Court has concluded that the evidence obtained immediately in the case against Lamichhane cannot be said to be that he is not guilty.
The High Court accepted that the incident was initially confirmed by the statement made by the victim to the doctor during the medical examination, his physical examination report, the conversation on Snapchat, the matter of visiting Nagarkot and the hotel room booking ledger.
It is said in the order that ‘the resolution of the dispute whether the victim was forced or not will be decided at the time of the decision of the presented case. However, it seems that the above-mentioned immediately received evidence should be accepted as evidence in the present petition.
In the case of Lamichhane, the High Court has already mentioned in its order that he may be guilty. Even the high court has accepted the conclusion of the district court that he was involved in the incident from the preliminary evidence. He is not sentenced to life imprisonment. But even if a girl above the age of 18 is raped, she can be sentenced to 7 to 10 years in prison, so looking at the legal provisions, it does not seem that she can stay out of prison.
Section 67 (3) of the Civil Criminal Procedure Code Act 2074 shows the conditions under which the accused may be released on bail. Those mentioned above can be released on bail for offenses punishable by less than 10 years.
There should be three conditions for that. Either the accused should be a child. Otherwise, he must have been physically or mentally disabled. The accused can be released on bail even if they are more than seven months pregnant women and seventy-five years old. But in the case of Lamichhane, these criteria are not attracted.
Judges Dhruvaraj Nand and Ramesh Dhakal of Patan High Court, who have to examine the validity of the district court’s order, limited to whether it is appropriate to keep the accused in custody or not, have entered into unnecessary and irrelevant topics.
In the application scheduled for hearing in their court for the first time on Thursday, they have submitted 19 long orders including international environment, which is a very difficult task to write in a few limited hours of study.
During the judgment, they have also entered into irrelevant matters. While the victim’s claim and the accused’s counter-argument are yet to be judicially examined, the High Court has connected traveling together in Nagarkot and staying together in a hotel with conduct. This explanation does not help to say whether the order passed by the district court that he should be detained was correct or not.