Civil and Criminal Law and Justice · Chapter 6
Study notes aligned to the official NEB syllabus.
Criminal law is one branch of law. It tells us which conduct counts as a crime (अपराध). It also fixes the punishment (सजाय) for that conduct. Civil law is different. Civil law settles private disputes between two persons. Criminal law treats an offence as a wrong against the whole society and the state. That is why a criminal case in Nepal is filed in the name of the Government of Nepal. The state is the party that prosecutes the case. The private victim does not prosecute it alone. So what is the purpose of criminal law? Its purpose is to protect life, property, public order and the basic values of society. It does this by forbidding harmful conduct. It also threatens a punishment against anyone who does that conduct.
An example makes the difference from civil law clear. Suppose a person beats his neighbour in a quarrel. The beating is a private wrong. For that private wrong the victim may claim compensation in civil law. But the beating is also a public wrong (hurt, कुटपिट). The state itself prosecutes this public wrong as a crime. Society has its own interest in forbidding violence. That interest is separate from the victim's own loss.
Criminal justice is the wider system that enforces criminal law. It is the whole machinery that deals with crime. This machinery detects crime. It investigates the crime. It prosecutes the accused. It tries the case. In the end it punishes or reforms the offender. The system has four main organs. The police investigate. The Office of the Attorney General and the government attorneys prosecute. The courts adjudicate, which means they decide the case. The prison and correction system carry out the sentence. A sound criminal justice system does two things at the same time. First, it brings the guilty to punishment. Second, it protects the rights of the accused and the victim. This way no innocent person is punished.
Here is an example of how the system works. Suppose a theft is reported. The police investigate and gather evidence. The government attorney files and conducts the prosecution. The court weighs the evidence and decides guilt. If the accused is convicted, the prison system carries out the sentence. At every stage the accused keeps his protections. In Nepal the accused enjoys several constitutional protections. He is presumed innocent. He has the right to be told the charge against him. He has the right to defend himself. He has the right not to be tortured. All of these are guaranteed as fundamental rights in Part 3 of the Constitution of Nepal 2015.
Most crimes are made up of two essential elements. These two must exist together. The first is a guilty act. The second is a guilty mind. This idea is captured in an ancient maxim. The maxim is actus non facit reum nisi mens sit rea. It means that an act alone does not make a person guilty. The mind must also be guilty.
Actus reus is the physical or external element of a crime. In simple words, it is the forbidden act itself. It has three parts. The first part is the wrongful conduct. This means doing what the law forbids. Sometimes it means failing to do a legal duty. A failure to act is called an omission. The second part is the surrounding circumstances. The third part is the harmful consequence that follows. Without a forbidden act there can be no crime. This is because the law punishes conduct. It does not punish mere thoughts.
Mens rea is the mental element. It is the guilty mind behind the act. It can take different forms. One form is intention. Intention is the deliberate will to do the act. Another form is knowledge. Another form is recklessness. Recklessness means consciously taking an unjustified risk. The last form is negligence (हेलचेक्र्याईं). Negligence means failing to take the care that a reasonable person would take. The rule about mens rea depends on the crime. The more serious the crime, the higher the mental element the law usually requires. A few offences are different. These are called strict liability offences. They are punishable on the act alone. For them no guilty mind needs to be proved. But these are only exceptions. As a general rule, both the guilty act and the guilty mind must be proved before a person can be convicted.
A worked example makes the union of the two elements clear. Suppose A wants to kill B. A puts poison in B's tea. B drinks the tea and dies. Here the actus reus is the act of giving the poison and the death that results. The mens rea is A's intention to kill. Both are present. So A is guilty of homicide, which means unlawful killing. Now change the facts. A hands B a cup of tea. Nobody knew the tea was contaminated. B dies. The actus reus is there, because A gave the tea that caused death. But there is no guilty mind. So A is not a murderer. The act alone, without the guilty mind, does not make A guilty. Now take the opposite case. A only wishes B dead. A does nothing at all. There is a guilty thought but no actus reus. Again there is no crime. The law does not punish bare intentions.
The sources of criminal law in Nepal today are mainly written and codified. "Codified" means the law is collected into a single written code. The highest source is the Constitution of Nepal 2015. It guarantees the rights of the accused. It also lays down one basic principle. No person shall be punished except under a law that was in force at the time of the act.
The principal source is the Muluki Penal Code 2074 (2017). It came into force in 2018. It replaced the old Muluki Ain. It is now the single comprehensive code of substantive criminal law. "Substantive criminal law" means the law that defines offences and their punishments. The Penal Code works together with two other laws. The first is the Criminal Procedure (Code) Act 2074. It governs investigation and trial. The second is the Criminal Offences (Sentencing and Execution) Act 2074. It governs sentencing. There are also special penal statutes. These cover matters such as narcotics, corruption and human trafficking. Finally, there are the precedents of the Supreme Court. A precedent is a past decision that binds the lower courts.
An example shows how these sources work together. Suppose a person is caught with narcotics. The court applies the special narcotics statute for that offence. It applies the Muluki Penal Code and the Criminal Procedure Code for the general principles and for the trial. It also applies any binding Supreme Court precedent on how the law should be read. The Constitution stands above all of them. It would strike down any punishment imposed without a law in force at the time of the act. Together these sources form the body of criminal law that the courts apply.