Procedural Law · Chapter 6
Study notes aligned to the official NEB syllabus.
Every case begins with a complaint. But the form differs between civil and criminal matters. The reason is that the two kinds of case protect different interests. A civil case protects a private right. A criminal case addresses a public wrong on behalf of the state. So the law gives each its own starting document.
In a civil case, the proceeding starts with a plaint (फिरादपत्र). This is the written statement of the plaintiff. In it the plaintiff sets out the facts. The plaintiff states the cause of action. The plaintiff states the relief claimed. The plaintiff states the value of the claim. The plaint is filed in the court having jurisdiction. It is filed with the required court fee, under the National Civil Procedure Code 2074. The defendant is then summoned by म्याद. The defendant replies with a written statement (प्रतिउत्तर). Here is an example. Suppose Hari lends Rupees three lakh to Gopal. Gopal refuses to repay. Hari cannot simply seize Gopal's property. He must file a plaint in the competent District Court. The plaint states the loan, the non-payment and his prayer for recovery. He pays the court fee on that value. The court then summons Gopal to answer. That plaint is the lawful registration of the civil complaint.
In a criminal case of the serious (State) kind, the process begins differently. Information of an offence is given to the police. This is done by a First Information Report (जाहेरी दरखास्त). On that basis the police register the case. They begin investigation (तहकिकात). For example, suppose a shopkeeper is robbed at knifepoint. He goes to the police and lodges a जाहेरी दरखास्त. It describes what happened, when, where and by whom if known. The police record it. They open the case. They start to gather evidence. So "complaint registration" covers two things. It covers the civil plaint. It covers the criminal FIR. Each is the lawful starting point of its own kind of case. In each, the complaint must reach the proper authority in the proper form. Only then can the machinery of justice move.
Italayanama (इतलायनामा) is, in general terms, a formal written notice or intimation. It is used in the course of proceedings. It is an official communication by which a court or authority informs or intimates a person in connection with a case. For example, it may notify a party or a concerned person of a step taken. Or it may require them to appear or to do a required act. It belongs to the family of notices by which the process of the court is communicated to those it concerns. So those people have knowledge of the action being taken. And they can respond to it.
The practical importance of such an intimation is the same as that of any notice. Fairness requires that a person affected by a proceeding should first be told of it. For example, suppose an authority proposes to deal with a person's interest in a matter. An intimation of the kind an इतलायनामा conveys lets that person come forward and be heard. Without it, the person could be bound by something decided behind their back. So its proper issue and service matter, like those of the summons (म्याद). Action taken without informing the person concerned would offend the basic requirement of notice. That requirement underlies natural justice. (The precise statutory sense of इतलायनामा varies with context. It is described here cautiously in words rather than tied to a particular section.)
Arrest (पक्राउ) is the act of lawfully taking a person into custody. It is used chiefly in criminal matters. Its purpose is to make the person available for investigation and trial. Arrest removes a person's physical liberty. So the law surrounds it with safeguards. Under the National Criminal Procedure Code 2074, arrest must follow legal procedure. The Constitution of Nepal 2015 reinforces this. It does so among the fundamental rights relating to justice.
The chief safeguards are these. A person arrested must be informed of the grounds of the arrest. The person is entitled to consult, and be defended by, a legal practitioner of their choice. This applies from the time of arrest. The person must be produced before a court within twenty-four hours of the arrest. This excludes the time needed for the journey from the place of arrest to the court. The person may not be detained beyond that period except on the order of the court. Arrest may be made under a warrant (पक्राउ पुर्जी) issued by a court. It may also be made without a warrant in the cases the law permits. One such case is a person caught committing a serious offence in the act.
Consider a man arrested one evening on suspicion of burglary. The police must tell him why he is being arrested. They must allow him to contact and consult a lawyer. They must bring him before the court within twenty-four hours. Travel time is left out of that count. Then a judge can decide whether his further detention is justified. Suppose the police held him for days without producing him before a court. The detention would be unlawful. It would be open to challenge, including by a writ of habeas corpus. These protections exist for a reason. Arrest takes away personal liberty. And the law guards personal liberty closely.
A charge sheet (अभियोगपत्र) is the formal document by which a criminal prosecution is brought before the court. It is filed after investigation is complete. In serious offences the state, not the victim, prosecutes. The charge sheet is the instrument of that prosecution. When the police have finished the investigation, the next step depends on the evidence. If the evidence discloses an offence, the file goes to the Government Attorney (सरकारी वकिल). The Government Attorney decides whether to prosecute. If so, the Government Attorney files the charge sheet in the competent court. The charge sheet sets out the name of the accused. It sets out the facts of the offence. It sets out the specific charge and the law under which it is brought. It sets out the evidence relied on. And it sets out the punishment demanded.
The filing of the charge sheet marks the formal beginning of the trial stage. For example, take the burglary reported above. It is investigated. The stolen goods and the tool are recovered and linked to the suspect. The police send the file to the Government Attorney. Suppose the Attorney is satisfied that the evidence discloses the offence. The Attorney files an अभियोगपत्र. It names the accused. It describes the burglary. It charges the relevant offence under the Penal Code. It asks for the prescribed punishment. The accused is then informed of the charge. The accused is given the documents and evidence against them. The case proceeds to the recording of evidence and to judgment. So the charge sheet is the bridge from investigation to trial.
Once a person is in the criminal process, a question arises. Should they remain free or stay in custody while the case continues? This is governed by bail and remand. Bail (धरौटी / जमानत) is the release of an accused, pending investigation or trial. The accused furnishes security. This may be a sum of money, a surety, or another condition. The accused gives an undertaking to appear when required. Bail reflects an important principle. An accused is presumed innocent. So the accused should not be detained unnecessarily before conviction. Remand, or custody (थुनछेक), is different. It is the keeping of the accused in detention by order of the court while the case proceeds. It is allowed where it is necessary. Examples are serious offences. Another is where there is a real risk that the accused will abscond, tamper with evidence, or influence witnesses.
In deciding between the two, the court weighs several things. It weighs the gravity of the offence. It weighs the strength of the evidence. It weighs the risk to the investigation and trial. It balances the liberty of the individual against the needs of justice. Suppose two accused appear before the court. One is charged with a minor affray and has roots in the community. The other is charged with a grave offence and was found with a passport and packed bags. The court may release the first on bail. It may set a modest security and an undertaking to attend. The court may order the second into custody. The reasons are the seriousness of the charge and the clear risk of flight.
There is, further, a clear distinction between two statuses. An accused (अभियुक्त) is a person charged but not yet proved guilty. The accused is therefore presumed innocent. A convict (कसुरदार) is a person found guilty by the court after trial. Their treatment is different. The lawful basis for detaining each is also different. The accused is held only as a precaution, by court order. The convict is held to serve the sentence imposed.