Civil and Criminal Law and Justice · Chapter 10
Study notes aligned to the official NEB syllabus.
An inchoate offence (अपूर्ण अपराध) is a crime that is begun but not finished. It can also be an act that prepares the way for a bigger offence. The word inchoate means "just begun" or "not fully developed". So these are crimes that stop before the final harm happens. But the law still treats them as punishable wrongs. There are three classic inchoate offences. The first is attempt (उद्योग). The second is criminal conspiracy (आपराधिक षड्यन्त्र). The third is abetment or incitement (दुरुत्साहन). In each one the accused has already set a criminal plan in motion. So the law steps in before the full harm takes place. Take an example. Suppose two people agree together to rob a bank. That agreement itself is a criminal conspiracy. It is a crime even before any robbery happens. Now take another person who urges and helps someone else to commit a crime. That person abets the crime. This is true even if he never strikes the blow himself.
To understand attempt, it helps to look at the four stages of a crime. The first stage is intention (मनसाय). This is just the forming of a guilty mind. The second stage is preparation (तयारी). Here the person arranges the things needed to commit the offence. The third stage is attempt (उद्योग). This is a direct act done towards the offence after preparation is finished. The fourth stage is commission or accomplishment (सम्पादन). Here the offence is actually carried out. As a rule, mere intention is not punishable. Usually mere preparation is not punishable either. This is because a guilty thought harms no one. And preparation is often innocent by itself. The law steps in at the stage of attempt. At this point the offender has moved past planning. He has done a real and dangerous act aimed straight at the crime. Here is a simple example. A person who only wishes his enemy dead commits no crime. If he buys poison, that is usually only preparation. But then suppose he mixes the poison into the enemy's food and serves it, meaning to kill. Now he has attempted murder. He is punishable. This is true even if the enemy notices the poison and survives.
The Muluki Penal Code 2074 makes attempt an offence. Think of a person who does an act towards committing an offence. But he fails to finish it, or he is stopped before he can finish. He is still liable to punishment. The punishment is generally lower than for the completed offence. It is commonly understood as up to half the punishment set for the full offence. Why punish him at all? The attempter has shown the same firm criminal intent as the person who succeeds. He is a real danger to society. The final harm simply did not follow. So think of a thief caught with his hand in another's pocket. He is caught before he can take the wallet. He has attempted theft. He is punished for it. But he is punished less heavily than a thief who completes the act.
The maxim ignorantia juris non excusat means ignorance of law is no excuse (कानुनको अज्ञानता क्षम्य हुँदैन). A maxim is a short legal saying that states a settled rule. This rule says a person who breaks the law cannot escape blame just by claiming he did not know the law existed. Two reasons support this principle. First, laws are made in public and published. So every person is presumed to know the law of the land. Second, suppose ignorance were allowed as a defence. Then everyone would plead it. It would be impossible to prove that a person actually knew the law. The law would become impossible to enforce. Take an example. A shopkeeper sells a banned substance. He cannot escape punishment by saying he did not know it was banned. He is presumed to know the law that applies to his own trade.
This rule is carefully kept separate from a mistake of fact (तथ्यको भुल). A mistake of fact can be a valid defence. Suppose a person is honestly and reasonably mistaken about a fact. And suppose his act would not be a crime if the facts were really as he believed. Then his criminal liability may be excused. Here is an example. A person at a function picks up an umbrella. He honestly believes it is his own identical umbrella. His mistake is about a fact. He does not have the dishonest intention needed for theft. So he is not guilty. But now take a person who keeps someone else's property while knowing the law against theft. He cannot plead ignorance of that law. There is a related protection called the rule against ex-post facto law (भूत प्रभावी कानून). An ex-post facto law is a law used to punish an act done before the law existed. Criminal law is not applied backwards in time. So a person is punished only under the law that was in force when he did the act. This protection is given as a fundamental right under the Constitution of Nepal 2015.
Stare decisis means "to stand by things decided". It is the doctrine of binding precedent (नजिर). A precedent is an earlier decided case that later courts must follow. Under this doctrine, lower courts must follow the settled legal principles laid down by higher courts in earlier cases. In Nepal this rule is given constitutional force. Under the Constitution of Nepal 2015, the principles laid down by the Supreme Court in its decisions are binding on all lower courts. They also bind the government and other authorities. Precedent brings consistency, certainty and equality to the law. So like cases are decided in a like way. Here is an example. Suppose the Supreme Court interprets a certain provision of the Penal Code in one way. Then a district court decides a later case on the same point. That district court must follow the Supreme Court's interpretation. This means two people in the same situation get the same legal treatment.
Within a single judgment, two parts are kept separate. The first is the ratio decidendi. This is the legal reasoning or principle that the decision actually rests on. It is the rule that was needed to decide the case. This is the binding part. It becomes the precedent. The second part is the obiter dicta. These are remarks made "by the way". They are observations that were not needed to decide the case. They carry only persuasive authority, not binding authority. So a later court must follow the ratio of a higher court. But it may treat obiter dicta as merely helpful guidance. Here is an example to show the difference. Suppose a court decides that a contract is void because one party was a minor. The rule that a minor's contract is void is the ratio. It binds later courts. Now suppose the same judgment adds a passing comment. It wonders what the result might have been if the party had been an adult. That comment is obiter. It does not bind anyone.