NEB Class 11 · Past paper
The complete NEB Class 11 old-course exam paper for Procedural Law, all 23 questions with solved model answers.
Tap a question to open its answer.
पश्चातदर्शी असर (Retrospective effect) - short note.
Retrospective effect (पश्चातदर्शी असर) describes how a law works on matters that arose before it was passed. The general rule has two parts. Substantive law operates prospectively. Procedural law operates retrospectively. The reason lies in the different nature of each branch.
Substantive law creates or takes away rights and duties. So applying it backwards would unsettle positions people have already relied on. This is why it looks only to the future. In criminal law the Constitution of Nepal 2015 reinforces this. It protects against retrospective punishment. No person may be convicted for an act that was not an offence when it was done. No person may be punished more severely than the law allowed at that time. Here is an example. Suppose an act is made an offence only from this year. A person who did it last year cannot be punished for it.
Procedural law is different. It only changes the method of enforcing rights. A litigant has no fixed right in one particular form of procedure. So a change in procedure is normally applied at once. This includes cases already pending. Suppose the manner of filing an appeal is changed while a suit is still being heard. The new procedure will normally govern the appeal. The parties lose no substantive right. They only lose a form. This shows clearly how the different natures of substantive and procedural law lead to different rules about their operation in time.
रिट निवेदन भनेको के हो ? यसको दर्ता प्रक्रियाबारे प्रकाश पार्नुहोस् । / What is writ petition? Highlight its filing process.
A writ petition (रिट निवेदन) is the gateway to the most powerful protective remedy in Nepalese law. That remedy is the constitutional writ. The Constitution of Nepal 2015 gives the Supreme Court an extraordinary jurisdiction. The court can issue necessary orders and writs. It does so to enforce the fundamental rights it guarantees. It also does so for any other legal right for which no equally effective remedy is available. The Constitution gives the seven High Courts a similar power within their provinces. A writ petition is the formal document by which a person sets this jurisdiction in motion. It stands apart from an ordinary civil suit. It differs in its purpose. It also differs in the way it is filed and heard.
The process begins with the petition itself. It must identify the petitioner and the respondents. It must set out the facts. It must state precisely which fundamental or legal right has been violated. It must cite the constitutional and legal basis. It must ask for a named writ and specific relief. The recognised writs match different wrongs. Habeas corpus frees a person who is unlawfully detained. Mandamus compels the performance of a public duty. Certiorari quashes an illegal decision. Prohibition restrains an inferior authority from exceeding its powers. Quo warranto challenges an unlawful holding of public office. So a person held in custody beyond the twenty-four-hour limit seeks habeas corpus. A citizen denied a document the law entitles them to seeks mandamus.
Next comes registration and scrutiny. The petition is filed in the Supreme Court or the right High Court. The court checks that the petitioner has standing. Ordinary standing applies for a personal right. Wider public-interest standing applies where a question of public importance is raised. The court also checks that a prima facie case exists. When satisfied, the court registers the case. It then issues a show-cause notice to the respondents. These are typically state bodies. The notice requires them to appear and justify their action. For example, take a mandamus petition. The office accused of neglecting its duty is called on to explain why it has not acted.
Finally, the matter proceeds to hearing and decision. The respondents file a written response. Both sides argue. If the court finds the complaint made out, it issues the appropriate writ and grants relief. Otherwise it dismisses the petition. Take a habeas corpus case. If the detention is shown to be unlawful, the court orders release. Take a certiorari case. If the challenged decision was made without jurisdiction, the court quashes it. The same applies if it breached natural justice.
This process protects the citizen directly and quickly against unlawful state action. It does so at the highest level of the judiciary. So the writ procedure is often called the guardian of fundamental rights. Its strength lies in combining a simple point of entry, the petition, with the full authority of the Supreme Court and the High Courts to command, quash, restrain and release.
अर्ध-न्यायिक निकायहरुमा गरिने मुद्दाको अभियोजन र न्याय निरुपण सम्बन्धी कार्यविधिको वर्णन गर्नुहोस् । / Describe the procedure of prosecution and adjudication of cases in Quasi-judicial bodies.
A quasi-judicial body (अर्धन्यायिक निकाय) is an administrative authority. A statute empowers it to decide particular disputes in a manner resembling a court. But it is not a court proper. Examples in Nepal include revenue and tax authorities. Others are labour and administrative tribunals. Others are various officers who decide matters under special laws. Their work is specialised. It would overload the ordinary courts. So the law gives them a special procedure. It is simpler and faster than the general court process. But they are still bound to act judicially. This double character shapes everything they do. They are administrative yet judge-like.
(a) Prosecution or initiation. A matter comes before such a body in one of two ways. It may come on the application or complaint of an aggrieved person. Or it may come on the action of the state or the concerned department where the statute so provides. The claim or charge must fall within the authority's statutory jurisdiction. A quasi-judicial body has only the powers its enabling law gives it. For example, a dispute over a tax assessment goes before the revenue authority named in the tax law. A labour dispute goes before the labour authority. Neither body can reach beyond the subject its statute assigns it.
(b) Adjudication. Once a matter is registered, the authority issues notice to the opposite party. It gives that party a chance to be heard. Here the principles of natural justice apply with full force. The party must receive notice of the case against it. This is the rule of audi alteram partem. The party must be allowed to present its side. And the decision-maker must be free of bias. This is the rule of nemo judex in causa sua. Suppose a trader is penalised by a revenue officer. The officer must inform the trader of the alleged default. The officer must let the trader explain and produce accounts. The officer must not sit as judge in a matter in which the officer is personally interested. The body then examines the documents and evidence. It usually does so with relaxed formality compared with a regular court. It applies the governing statute. It decides the matter by a reasoned order. The duty to give reasons is itself an element of a fair quasi-judicial decision. It is also the thing that lets an appellate court check the ruling.
(c) Control by the courts. A quasi-judicial decision is not final beyond review. It is ordinarily subject to appeal to a higher tribunal or court. In any event it is subject to the supervisory and writ jurisdiction of the High Court and Supreme Court. Those courts may issue certiorari to quash a decision made without jurisdiction or in breach of natural justice. They may issue prohibition to stop a body exceeding its powers. So suppose the revenue officer in the example decided without hearing the trader. The trader may ultimately seek certiorari to have the order quashed.
In this way the special procedure of quasi-judicial bodies combines two things. It gives the advantages of speed and expertise. It also gives the safeguards of fairness and ultimate judicial control. The law trusts these bodies with technical disputes. But it does not leave them unchecked. Natural justice binds them from within. The superior courts stand over them from without.
विशेष कार्यविधि (Special procedure) - short note.
Special procedure (विशेष कार्यविधि) means a process prescribed by law for a specific type of case. Such a case cannot be handled conveniently or justly by the ordinary general procedure. The reason it exists is practical. Certain subjects are technical. Revenue, labour, land reform and administrative disputes are examples. They need expert, speedy decisions. So a statute sets up a special forum. That forum is a tribunal or a quasi-judicial authority. The statute gives it a special, usually simpler, procedure.
Its features follow from this purpose. It is created and limited by its enabling statute. So the forum has only the jurisdiction (क्षेत्राधिकार) that law confers. It cannot stray beyond it. It is often less formal than a regular court process. That is what gives it speed. It still must observe the core of natural justice. It must give notice. It must hear both sides. It must decide without bias. A shortcut in procedure is not a licence for unfairness. And its decisions remain subject to appeal and to the writ jurisdiction of the superior courts. So it stays within the overall framework of the judiciary.
Here is an example. A taxpayer disputes a tax assessment. The taxpayer goes before a revenue tribunal. That tribunal follows its special statutory procedure, not an ordinary civil court. Yet the tribunal must still hear the taxpayer. And its order can ultimately be tested by the High Court. So special procedure lets the legal system match its method to the particular needs of a class of cases. It does this without sacrificing fairness or judicial oversight.
न्यायाधिकरण (Tribunal) - short note.
A tribunal (न्यायाधिकरण) is a body other than an ordinary court. A law establishes it. It decides a specific class of disputes that need special expertise. Nepal uses tribunals for several subjects. Revenue and tax matters are one. Labour is another. Administrative service matters are another. In these areas the questions are technical. They also recur in large numbers.
A tribunal differs from a court in several ways. It is created by a particular statute. It is not part of the general judicial structure. It has only the limited jurisdiction that statute confers. So a labour tribunal cannot decide a land title. A revenue tribunal cannot try a crime. And it usually follows a simpler and speedier special procedure than a regular court. Its strengths flow from this design. It has expertise, because its members often combine legal and technical knowledge. It has speed, because its procedure is lighter. And it has reduced cost for the parties.
A tribunal must still act judicially. It must observe natural justice. It must give notice. It must hear both sides. It must decide without bias. It must give reasons for its decision. Its rulings are subject to appeal and to the supervisory and writ jurisdiction of the High Court and the Supreme Court. So it remains within the overall framework of the judiciary. For example, suppose an employee is aggrieved by a labour tribunal's decision. The employee may pursue the appeal or review the law allows. In a proper case the superior courts may quash a tribunal order made without jurisdiction. So the tribunal offers specialised, efficient justice. It does so while staying under ultimate judicial control.
अर्धन्यायिक निकाय (Quasi-Judicial body) - short note.
A quasi-judicial body (अर्धन्यायिक निकाय) is an administrative authority. A statute confers on it the power to decide particular disputes in a manner resembling a court. Examples include tax and revenue officers. Others are land and labour authorities. Others are administrative tribunals. It is called quasi-judicial for a reason. It decides disputes affecting rights, like a court. But it is part of the administration, not of the regular judiciary. This in-between character is its defining feature.
Such a body must act judicially. It must give notice to the affected party. It must hear that party before deciding. This is the rule of audi alteram partem. It must remain free of bias. This is the rule of nemo judex in causa sua. It must decide by a reasoned order within its statutory jurisdiction. For example, suppose a revenue officer proposes to impose a penalty on a trader. The officer must tell the trader the ground. The officer must let the trader respond and produce accounts. The officer must record reasons for the final order. The officer must not act on a mere hunch.
Its decisions are subject to appeal and to the writ jurisdiction of the superior courts. Those courts can issue certiorari to quash a decision made without jurisdiction or in breach of natural justice. They can issue prohibition to stop a body exceeding its powers. So quasi-judicial bodies allow technical matters to be decided quickly and expertly. They decide close to the administration that understands them. Yet they remain under the fairness discipline of natural justice. And they remain under the ultimate control of the courts.
अधिकार क्षेत्र भन्नाले के बुझिन्छ ? न्याय सम्पादनमा यसको किन महत्त्व रहन्छ ? / What do you mean by Jurisdiction? Why is the principle of Jurisdiction important in judgment?
Jurisdiction (अधिकार क्षेत्र) is the authority given by law to a court to hear and decide a particular matter. It is the very foundation of judicial action. A court is not a body of unlimited power. It can act only within the authority the Constitution and the statutes give it. A decision by a court that lacked jurisdiction is not merely wrong. It is void. It is a nullity that binds no one. It can be ignored or struck down whenever it is relied on.
Jurisdiction takes several forms. Subject-matter jurisdiction is the court's competence over the kind of dispute before it. It includes its pecuniary limit. This is the value of claims it may entertain. So a very large claim and a small one may belong to different levels. Territorial jurisdiction is its power over matters arising within a defined area. A suit is normally brought where the cause of action arose or where the defendant lives. Original jurisdiction is the power to hear a case at first instance. Appellate jurisdiction is the power to review a decided case. Here is a concrete example. Suppose a person files a suit about land in one district. They file it before the District Court of a wholly different district. Neither the land nor the parties have any connection there. That court simply has no territorial jurisdiction. It may hear the matter and give judgment. But the judgment is a nullity. The same is true if a court entertains a claim far above its pecuniary limit. It is also true for a claim of a kind reserved for a special forum. In Nepal the Constitution of Nepal 2015 and the procedure codes distribute these forms of jurisdiction. The District Courts try most cases at first instance. Above them are the seven High Courts. At the apex is the Supreme Court. The Supreme Court also holds extraordinary writ jurisdiction.
The importance of jurisdiction in the administration of justice is great. First, it makes sure each case is heard by the proper and competent court. So weighty or specialised matters reach the right level. They are decided by those equipped to decide them. Second, it prevents conflict and confusion between courts. It marks out the field of each. So two courts do not claim or disclaim the same case. Third, it protects the parties. It saves them from being summoned before a court that has no power over the dispute. It also saves them from a court that would be unduly inconvenient and costly to reach. Fourth, it keeps every court within the limits of law. This is itself a safeguard of the rule of law. A court that acts beyond its jurisdiction acts unlawfully, no matter how fair its intentions.
Finally, a judgment given without jurisdiction can be challenged and quashed. This is often done through the writ of certiorari in the High Court or the Supreme Court. So correct jurisdiction is the first condition of a valid and enforceable decision. A litigant who wins before the wrong court has in truth won nothing. For all these reasons jurisdiction is rightly treated as a cardinal principle of procedural law. It is the gateway that every case must properly pass through. Only then can anything a court does count.
निर्णयाधार भनेको के हो ? फैसलामा यसको किन महत्त्व रहन्छ ? / What is ratio decidendi? Why is it important in a court decision?
Ratio decidendi (निर्णयाधार) means "the reason for the decision". It is the legal principle on which a court's judgment is actually based. It is the reasoning needed to reach the result on the facts of the case. Under the doctrine of stare decisis (precedent, नजिर), it is the ratio decidendi that binds lower courts in later similar cases. The whole judgment does not bind them, only the ratio. Anything said in passing and not necessary to the decision is obiter dicta. It carries only persuasive weight. The ratio is important for these reasons.
Here is an illustration. Suppose the Supreme Court decides a case on the principle that a certain notice must be given before a particular action is taken. That principle is the ratio. It binds the lower courts. Suppose the Court also remarks generally on some unrelated matter. That remark is obiter. It is merely persuasive. In Nepal the principles of law laid down by the Supreme Court bind all subordinate courts and authorities under the Constitution of Nepal 2015. It is the ratio decidendi of those decisions that constitutes the binding precedent (नजिर). So the duty to identify the true ratio is a central skill of anyone applying case law.
हकदैया (Locus standi) - short note.
Locus standi (हकदैया) means the right or capacity of a person to approach a court for a remedy. The general rule is simple. Only a person whose own legal right or interest has been affected may sue. A stranger to the dispute has no standing. This rule keeps the courts from being burdened by those with no real stake in a matter. Take an example. Suppose two neighbours dispute the boundary of their fields. A third person has no interest in the land. That person cannot file the boundary suit. Only those whose rights are in question may do so. However, Nepalese law recognises an important exception. It is public interest litigation (सार्वजनिक सरोकारको निवेदन). This applies to a matter of public importance. It also applies to the rights of a community that cannot come to court itself. In such cases the Supreme Court permits any concerned citizen to file a public-interest writ petition. Here are examples. Suppose a public body pollutes a river used by a whole community. Or suppose the rights of prisoners or a marginalised group are at stake. A public-spirited citizen may then bring the matter. This is allowed even though no personal right of their own is injured. So locus standi strikes a balance. It excludes mere busybodies. And it keeps the courthouse door open to genuine public grievances. It is a threshold question a court settles before it will entertain a case at all.
प्रासङ्गिक कथन (Obiter dicta) - short note.
Obiter dicta (प्रासङ्गिक कथन) means "things said by the way". They are observations or statements of law made by a judge. They are incidental and not essential to the actual decision of the case. They are contrasted with the ratio decidendi (निर्णयाधार). The ratio is the reasoning necessary to the result. The ratio alone is binding under the doctrine of stare decisis. Obiter dicta are not part of the ground of decision. So they do not bind lower courts. They carry only persuasive authority. Their weight depends on the standing of the court and the judge. It also depends on the soundness of the reasoning. Here is an illustration. Suppose a court decides a property dispute on one ground. It then adds a general comment on how a different, hypothetical situation might be treated. That comment is obiter. It is useful guidance, but not a binding rule. Even so, obiter dicta are valuable. They can guide courts in future cases. They can indicate how the law may develop. And they can clarify points that were raised but not strictly decided. In Nepal the Supreme Court's principles bind the lower courts under the Constitution of Nepal 2015. So distinguishing the true ratio from mere obiter in a judgment is an essential skill. Only the ratio commands obedience.
मृत्युकालीन घोषणा (Dying declaration) - short note.
A dying declaration (मृत्युकालीन घोषणा) is a statement made by a person who later dies. It is about the cause of their death or the circumstances that led to it. Ordinarily a statement by a person who is not produced for cross-examination would be excluded as hearsay. But a dying declaration is admitted as a well-recognised exception. The justification has two parts. The first is necessity, because the maker is dead and can no longer testify. The second is a special guarantee of truth. The traditional view is that a person who believes they are about to die is unlikely to lie. Here is an example. A victim is dying of burn injuries. Before dying, the victim tells those present that a named person set them on fire. That statement may be received as a dying declaration.
For such a statement to carry weight, several things should be met. The maker should have been in a fit state of mind. The declaration should be voluntary. It should not be the product of prompting or leading. It should be properly recorded. A dying declaration can by itself support a conviction. But the court must be satisfied it is true and reliable. The court examines it with care. The reason is that it cannot be tested by cross-examination.
लिखत प्रमाण (Documentary evidence) - short note.
Documentary evidence (लिखत प्रमाण) is evidence that consists of the contents of a document produced before the court. It is unlike the spoken word of a witness, which is oral evidence. It is also unlike a material object, which is physical evidence. It covers deeds, agreements, letters, official registers and maps. Nowadays it also covers electronic records. The law treats documentary evidence under the best-evidence rule. The original document is primary evidence and should normally be produced. It is the most reliable proof of its own contents. A copy or substitute is secondary evidence. It is admitted only in recognised exceptions. One exception is where the original is lost or destroyed. Another is where the opposing party withholds it. Another is where it is a public record and the law allows a certified copy. Here is an example. In a suit on a registered sale deed, the court will expect the original deed. It will accept a certified copy from the registration office only if the original is shown to be genuinely unavailable. To be relied on, a document must also be proved. This means its genuineness and execution must be established. This is done by the maker or by someone who can speak to its authenticity. Documentary evidence is valued because it is fixed and permanent, unlike memory. It often provides the clearest proof of a transaction.
विवादको वैकल्पिक समाधान भनेको के हो ? यसका उपायहरु व्याख्या गर्नुहोस् । / What is alternative dispute resolution? Describe its methods.
Alternative dispute resolution (ADR) means the various ways of settling disputes without a full trial in the ordinary courts. This can be instead of a trial or without completing one. It has grown in importance everywhere, including in Nepal. The reason is that ordinary litigation is often slow, expensive and adversarial. ADR offers a faster, cheaper and more cooperative path to a settlement.
The principal methods of ADR are the following. Negotiation is the simplest. The parties, by themselves or through their lawyers, discuss the dispute and try to reach a settlement. No third party is involved. Two traders might simply agree to split a disputed amount. Mediation (मेलमिलाप) brings in a neutral third person, the mediator. The mediator does not decide the case. The mediator helps the parties communicate and find a mutually acceptable solution of their own. Nepal strongly promotes court-connected mediation. Courts may refer suitable civil cases to it. Conciliation is close to mediation. But the conciliator usually plays a more active part. The conciliator assesses the matter and proposes terms the parties may accept. Arbitration is the most formal method. The parties agree to submit their dispute to one or more arbitrators. The arbitrators hear both sides. They give a binding decision called an award. This method is much used for commercial and contractual disputes. It is supported by Nepal's arbitration law.
The advantages of ADR explain why it is encouraged. It is faster than litigation. It is cheaper. And it reduces the heavy backlog of the courts. Many of its forms produce an agreed rather than an imposed outcome. So it preserves relationships. This matters greatly in family, community and business disputes. For instance, two brothers may settle an inheritance dispute by mediation. They may remain a family. A bitter trial, by contrast, could divide them for life. ADR is also confidential. And it leaves the outcome largely in the parties' own hands. There are limits. ADR suits disputes the parties are willing to compromise. It is less apt for serious crimes or questions of public law. These must go to the courts. The state cannot simply compromise a murder charge. Within its proper field, however, ADR has become a valued complement to the formal court process in Nepal. Mediation in particular has become valued.
मुलतवी भनेको के हो ? मुद्दा मुलतवी राख्ने कार्यविधि उल्लेख गर्नुहोस् । / What is adjournment (multabi)? Mention the procedure of case adjournment.
Adjournment (मुलतवी) means putting off the hearing of a case. It may also mean keeping the case in abeyance. This is done to a later date or until some obstacle is cleared. A case may be adjourned for good reason. For example, a party or witness may be genuinely unable to attend. Or a connected question must first be decided elsewhere. Or a necessary party is to be added or served. Or the court's own time does not permit the hearing to go on. The procedure generally is as follows.
Here is an example. Suppose a key witness is seriously ill on the hearing day. The court may adjourn to a later tarikh rather than decide without the evidence. But suppose a party asks for repeated postponements only to delay. Then the court should refuse. Courts are expected to control adjournments firmly. Repeated or baseless postponements are a chief cause of delay in the delivery of justice.
तारिख भनेको के हो ? यसका प्रकारहरु उल्लेख गर्नुहोस् । / What is date of presence (tarikh)? State its types.
A tarikh (तारिख) is the date of appearance that a court assigns to the parties. On it they must be present for the next stage of the case. This could be filing a reply, leading evidence, hearing arguments or receiving judgment. The tarikh system keeps the progress of a case orderly. It ensures the parties know when to attend. Its types, broadly, are these.
Here is an example. After the written statement is filed, the court may give a tarikh for leading evidence. Later it may give a separate tarikh for judgment. So each party knows exactly when to appear. Suppose a party fails to attend on the tarikh without reasonable cause. They may suffer consequences, such as the case proceeding in their absence. So keeping one's tarikh is an important duty of a litigant. The system is meant to move a case forward step by step on known dates.
फैसला कार्यान्वयन अधिकृत (Decision execution officer) - short note.
A decision-execution officer (फैसला कार्यान्वयन अधिकृत) is the officer of the court entrusted with a key task. The task is giving effect to its judgments and decrees. So the successful party actually receives what the court has awarded. A judgment on paper is of no value unless carried out. This officer performs that function under the National Civil Procedure Code 2074. The officer's work includes the following.
Here are examples. Suppose a court orders B to hand over a shop to A, but B refuses. The officer enforces the order and puts A in possession. Suppose B owes a decreed sum and will not pay. The officer may attach and sell B's property to satisfy the decree. The officer acts under the authority and supervision of the court. The officer follows the lawful procedure for execution. And the officer keeps a record of the steps taken. By ensuring that decrees are actually enforced, the decision-execution officer makes the court's decisions effective. This sustains public confidence that a judgment, once won, will be realised.
अभियुक्त र अपराधीका बीच फरक देखाउँदै उनीहरुलाई थुनामा राख्ने कार्यविधि उल्लेख गर्नुहोस् । / Show the difference between accused and convicted persons, and state the procedure of keeping them in custody.
An accused (अभियुक्त) and a convict (कसुरदार / अपराधी) are at different stages of the criminal process. The law treats them differently.
The procedure for detention differs accordingly. An accused may be kept in custody only during investigation or trial. This is done by order of the court (remand / थुनछेक). It is done only where necessary. Examples are a serious offence, or a real risk of absconding or tampering with evidence. Otherwise the accused is entitled to seek bail (धरौटी) and release. This keeps with the presumption of innocence. The accused must also be produced before a court within twenty-four hours of arrest. Journey time is excluded from that count. A convict is different. A convict is detained in execution of the sentence passed by the court. That means serving the term of imprisonment imposed on a finding of guilt. For example, a man is charged with theft and awaiting trial. He may be released on bail or held on remand, as the court decides. But once he is convicted and sentenced to imprisonment, he is detained to serve that term. So the basis of detention is quite different. For the accused it is precautionary and court-authorised. For the convict it is punitive and sentence-based.
प्रतिवाद (Defence) - short note.
Defence (प्रतिवाद) is the response by which the party against whom a case is brought answers and resists the claim or charge. It is the practical form of the principle that both sides must be heard (audi alteram partem). In a civil case the defendant's defence is set out in the written statement (प्रतिउत्तर). It is filed in answer to the plaint. In it the defendant may admit or deny the facts. The defendant may raise objections, such as want of jurisdiction or limitation (हदम्याद). The defendant may plead their own version. For example, suppose someone is sued on a loan. The defendant may plead that the debt was already repaid. Or the defendant may plead that the suit is time-barred. In a criminal case the accused's defence is the stand they take against the charge. The accused may deny the offence. The accused may offer an explanation or an alibi. The accused may challenge the prosecution's evidence. The accused may lead evidence of their own. The right to defend is protected by law. It includes the right to be informed of the case. It includes the right to be given the evidence. It includes the right to be assisted by legal counsel. These come from the National Criminal Procedure Code 2074 and the Constitution of Nepal 2015. A fair chance to make a defence is essential to a just decision. A court can decide rightly only after hearing both sides.
तहकिकात (Investigation) - short note.
Investigation (तहकिकात) is the stage of the criminal process in which the police collect facts and evidence. It follows after a case is registered on a First Information Report. Its aim is to establish whether an offence has been committed and who is responsible. Under the National Criminal Procedure Code 2074, the work of investigation includes several tasks.
For example, suppose a burglary is reported. The police inspect the broken lock. They recover and seal a tool left behind. They record the neighbours' accounts. They send a bloodstain for testing. Investigation must be conducted lawfully and fairly. Evidence gathered by clearly improper means is viewed with suspicion. So is a confession obtained by coercion. The Constitution of Nepal 2015 protects a person against being compelled to confess. When the investigation is complete, the file goes to the Government Attorney. The Attorney decides whether to file the charge sheet. So investigation is the bridge between the FIR and the prosecution.
धरौटी (Bail) - short note.
Bail (धरौटी) is the conditional release of an accused person from custody. It is granted while the investigation or trial continues. The accused must furnish security. This may be a sum of money, a surety or another condition. The accused must also give an undertaking to appear before the court whenever required. Its basis is a key principle. An accused is presumed innocent until proven guilty. So the accused should not be detained unnecessarily before conviction. In deciding whether to grant bail, the court weighs several factors. It weighs the gravity of the offence. It weighs the strength of the evidence. It weighs the risk that the accused might abscond, tamper with evidence or influence witnesses. It weighs the accused's own circumstances. For example, a person is charged with a minor offence and has family and property in the area. That person is a natural candidate for bail. A person charged with a grave offence and likely to flee may be refused bail. That person may be ordered into custody (थुनछेक) instead. Suppose the accused later fails to appear or breaks the conditions. Then the security may be forfeited and custody ordered. So bail balances two things. It balances the liberty of the individual against the need to secure the accused's presence and protect the course of justice.
सोधपुछ / जाँचबुझ (Examination / inquiry) - short note.
Examination or inquiry (सोधपुछ) refers to the questioning carried out during the criminal process. Its aim is to draw out facts and evidence. It is chiefly the interrogation of a suspect. It also includes the questioning of complainants and witnesses by the police during investigation (तहकिकात). Its purpose is to discover what happened. It is also to test the information received. And it is to gather evidence that may support a prosecution. For example, in investigating a burglary the police may question the suspect about his movements that night. They may question the neighbours about what they saw. Important safeguards attach to this questioning. It must be conducted lawfully and fairly. A statement or confession obtained by coercion, threat or inducement is not voluntary. It is viewed with suspicion. The reason is that the Constitution of Nepal 2015 protects a person against being compelled to confess. It also guards the rights of those in custody. The person questioned keeps the protections the law provides. On arrest, these include the right to be informed of the grounds. They include the right to consult legal counsel. Proper, fair examination is valuable to a case. Examination conducted by improper means undermines two things. It undermines the reliability of the evidence. And it undermines the fairness of the trial. (Note: the examination of witnesses in court is dealt with under the law of evidence in Unit 4.)
अदालती व्यवस्थापन भन्नाले के बुझिन्छ ? / What do you mean by court management? (Explain.)
Court management (अदालती व्यवस्थापन) means the efficient running and organising of the work of the courts. Its aim is to deliver justice promptly, fairly and economically. A court is not only a place where law is applied. It is also an institution that must manage people, cases, time, records and resources. If that management is poor, cases pile up and justice is delayed. If it is good, disputes are resolved within a reasonable time. Then the public keeps faith in the courts. So court management is an essential part of procedural justice, even if it is less visible.
Its principal elements may be set out as follows. The first and most important is case flow management. This is the planned movement of each case from its filing to its final disposal without needless delay. It involves fixing timelines for the stages of a case. It involves controlling adjournments (मुलतवी) so cases are not postponed without good reason. It uses the tarikh (तारिख) system to keep the case moving. It involves scheduling hearings to use the court's time well. It gives priority to old and urgent cases. And it monitors pendency to clear the backlog. Here is an illustration. A suit in which every date is lost to a fresh excuse can stretch over years. Firm case flow management is the answer. It holds parties to set dates for evidence and argument.
The second element is the use of ICT. This includes electronic case registration and tracking. It includes online case information and cause lists. It includes digital records. And it includes virtual hearings. All of these speed up the work and make it more transparent. The third element is bench and courtroom management. This keeps the decorum, order and discipline of the court. So hearings proceed with dignity. The fourth is the administration of personnel and records. This is the efficient management of court staff, files and physical resources. Underlying all of these is sound leadership and planning by the judiciary. In Nepal the judiciary has adopted strategic plans and reforms. They are directed at reducing delay and improving the quality of justice.
The importance of court management is plain. It reduces delay and backlog, the greatest weakness of the justice system. It lowers the cost of litigation for the parties and the state. It improves the quality and consistency of justice. It does this by giving judges the time and order they need. And it strengthens public confidence in the courts. For these reasons court management is recognised as a key concern of a modern judiciary. It rests on good case flow management. And it is supported by ICT and courtroom discipline.
इजलासको मर्यादा (Bench decorum) - short note.
Bench decorum (इजलासको मर्यादा) is the discipline, dignity and order that must be kept in the courtroom. It centres on respect for the bench, the judge and the court. Justice can be done only in an atmosphere of solemnity. So everyone present must observe certain norms of conduct. This includes lawyers, parties and the public. The norms are these.
Bench decorum protects the authority of the court. It also helps ensure a calm, fair hearing. This is why it is an essential part of court management.