The Supreme Court (SC) has changed the grounds for allowing cricketer Sandeep Lamichhane, accused of rape, to fly to the United Arab Emirates (UAE) to play cricket after his order was widely criticized.
The joint court of judges Sapana Pradhan Malla and Kumar Chudal after holding a joint hearing on the petition of Lamichhane, who was released on bail in the case of raping a minor, demanding that he be allowed to fly to the United Arab Emirates United together with the Nepal national cricket team. Team and the Office of Attorney General’s (OAG) appeal against the Patan High Court’s order to release him on bail of Rs 2 crore, had ordered on February 27 to allow Lamichhane to go to the United Arab Emirates.
However, the reasons for allowing him to go to the UAE that SC spokesman Bimal Paudel gave while reading the order were changed when the order was delivered to the parties in the case the next day.
Paudel had said that the main reasons for allowing Lamichhane to go to the United Arab Emirates were that no semen was found in the minor’s body and the statement of her roommate. However, the order sent to the parties the following day mentions that there was no situation to send Lamichhane to judicial custody based on closed circuit television (CCTV) images, the victim’s health control report and the statement of Lamichhane, according to a source
“The order forwarded to the parties also mentions that it would be inappropriate to prevent the defendant from going abroad because he is a national/international actor. The order read out by the spokesperson mentioned the victim’s roommate’s statement and the lack of semen in the victim’s body according to the health report as grounds for not keeping the defendant in custody. Those grounds have now been removed.”
The order given to the parties also mentions the age of the victim, which was not mentioned by Spokesman Paudel, noting that there seems to be a dispute as to whether the victim is a minor or not, since the defendant claims that she is 19 years old. and not 17 as claimed by her, adding that the Kathmandu District Court should rule on the matter.
Paudel had said that the case should be expedited as Lamichhane is an international player, but the order sent to the parties says that it should be expedited as it is related to a gender violence crime.
The order given to the parties also includes a new issue. “The District Court has been ordered to provide relief through the interim relief fund, as the victim’s legal professionals have told the court that her state of mind is not correct,” the source added.
Spokesman Paudel told Setopati that he had only read the draft of the order that was not signed by the judges on Monday because there was a rush. “The order given after the judges finalize and sign it is official,” Paudel said. “The main part of that order is the partial reversal of the Patan High Court order and allow Lamichhane to go abroad to play cricket, which has not changed even now. The grounds are also the same. But there may be some minor changes to the explanation of the draft order.”
On February 27, the SC also ordered Lamichhane to appear before the Kathmandu District Court within 15 days after the completion of any tournament involving Nepal abroad. If he doesn’t, his permission to go abroad to play cricket will be revoked.
He also refused to revoke the bail granted by the Patan High Court.
The hearing on the case could not be completed on February 26 and continued the next day.
On February 24, the SC had refused to allow Lamichhane to fly to the United Arab Emirates the next day along with the Nepal national cricket team.
The Patan High Court, while granting Lamichhane bail, had set five conditions, including a ban on traveling abroad. Lamichhane had moved the SC demanding that he be allowed to travel with the national team to the United Arab Emirates to play ICC Men’s Cricket World Cup League 2 matches against the United Arab Emirates and Papua New Guinea.
Judge Ishwar Khatiwada’s court hearing Lamichhane’s petition on February 24 asked the SC administration to schedule a combined hearing of the petition and the OAG’s appeal against the Patan High Court’s order to release Lamichhane with a bail of 2 crores.
The joint hearing of Judges Dhruba Raj Nanda and Ramesh Dhakal on the appeal against the Kathmandu District Court’s order to remand Lamichhane to judicial custody in the case of rape of a minor on January 12 decided to revoke the Kathmandu District Court’s order. Kathmandu District citing lack of grounds to keep him in custody. He was released on bail of Rs 2 crore the next day.
In its appeal, the Attorney General’s Office has argued that the Patan High Court’s order to release Lamichhane on bail is contrary to the legal provisions and the SC’s interpretation during the bail hearing in cases of a similar nature.
Clause 27 of the National Criminal Procedure Law (Code) 2017 has a clear provision to detain the accused of any offense punishable by imprisonment for a period exceeding three years in detention if, based on the available evidence, the accused appears to be guilty of the crime crime or there is some reasonable ground, based on such evidence, to believe that person is guilty of the crime.
But Lamichhane was released on bail despite the fact that subsection 3(d) of Section 219 of the National Criminal Law (Code) 2017 states that a person who commits rape shall be subject to imprisonment for 10 to 12 years if the woman is older than 16 but younger than 18. The victim in the case is 17 years old.
The Patan High Court ordered Lamichhane’s release with five conditions. He was to be sent back to prison if it was determined that he had violated those conditions.
The court had prohibited Lamichhane from traveling abroad. He was also asked that he obtain permission from the Kathmandu Range District Police to leave the Kathmandu Valley.
The court had also asked the police to monitor their activities.
Lamichhane’s lawyers had appealed against the Kathmandu District Court’s November 4 order to send him into judicial custody until the case is decided. Lamichhane had been held at Jagannath Dewal Central Jail.
Previously, the Patan High Court had requested documents from the hospital where the victim was born to determine his real age after Lamichhane’s defense claimed that he was not actually a minor.
The Kathmandu District Government Prosecutor’s Office (DGAO) had registered a case against Lamichhane accusing him of raping a minor.
District Police Range, Kathmandu and Metropolitan Police Circle, Gaushala had filed the investigation report with the DGAO on October 21 after completing their joint investigation against Lamichhane. However, a case could not be filed against him due to Tihar’s vacation.
Police had investigated Lamichhane under Section 219 of the National Criminal (Code) Act 2017 after a 17-year-old girl filed a rape complaint against him.
The Kathmandu DGAO has demanded a prison sentence of up to 12 years against Lamichhane under subsection 3(d) of Section 219, which states that a person who commits rape shall be subject to a prison sentence of 10 to 12 years if the woman is 16 years old or more than 16 years old but less than 18 years old. He has also requested compensation for the victim.
Lamichhane has denied the rape charge in his statements to the DGAO and the police. He has admitted staying with the girl in the same Kathmandu hotel room on August 21. But he has said that the girl had slept in the bed and he had slept in a chair that night.
Lamichhane, a former captain of the Nepal cricket team, has been accused of raping a minor multiple times in a Kathmandu hotel room on August 21.
A 17-year-old girl filed a rape complaint against Lamichhane at the Gaushala Police Circle on 6 September.
The girl has complained that Lamichhane took her to different places in Bhaktapur and Kathmandu on August 21, a day before Lamichhane left for the bilateral series with Kenya.
He accused Lamichhane of raping her multiple times in room number 305 of a hotel in the 9th district of the Kathmandu metropolitan city that night.
Police also collected CCTV footage of the night from the hotel. The footage shows that Lamichhane had stayed at the hotel for seven hours.
The girl has claimed in her complaint that she had gone to Nagarkot with Lamichhane on August 17 after being introduced to him by a friend.
Lamichhane left to play in the Caribbean Premier League on 22 August after leading the team to a 3–2 win in the five-game Twenty20 series against Kenya. Rohit Kumar Paudel then led the Nepali team in the one-days in his absence.
An arrest warrant was issued for Lamichhane on 8 September and he was suspended from the national team by the Nepal Cricket Association (CAN) the same day after the arrest warrant was issued.
Subsequently, the Nepal Police also issued a broadcast notice against him through Interpol on 26 September.
Section 219 (2) of the National Criminal Law (Code), 2017 states: “Where a man has sexual intercourse with a woman without her consent or with a girl under the age of eighteen even with her consent, the man shall be considered as committing a rape of such a woman or girl.”