Criminal Law

B.A. L.L.B. Year III

Course Code No.: Law 451
Full Marks: 100

Dr. Ramesh Parajuli (Advocate/Translator Notary Public)

E-Mail: amesh06@yahoo.com
Contact: 9851183388
 Concept, Meaning and Nature of
Crime and Criminal Law
Definition of Crime
(a) In Broad Sense: Act against the society.
(b) In Strict Sense: Act in contravention to criminal
law.

 Social views are reflected in criminal law.

Criminal law represents social values and norms.
Society creates and changes law. Sometimes law
takes leading role to change the society. In such
situation law enforcing agencies must be proactive
for a long time.
 Point of Discussion
Why Social Behaviour Reform Act, 2033
defunct?
 Social Control
Positive Control Negative Control

Formal Informal
Control Informal
Control Formal
Control
(e.g. society Control
awards sb. E.g.
Without Punishing/
provisions of (Criminal
penalizing
law) Law)
without
law
Nature of Crime and Criminal Law
1. Crime is an act against society. Society reacts against the
criminal through criminal law.
2. Criminal Law aims to punish the offender.
3. State prosecutes the case on behalf of the society.
4. The whole process of prosecution runs in strict formal style.
5. Criminal law originates from supreme legislation.
6. The notion of crime is relative to time and place.
Illustrations: Sati system, child marriage, polygamous
marriage, untouchability notion etc.
7. Crime exists in every society whether developed,
undeveloped or primitive.
 Difference between Crime, Tort
and Civil Wrong
S Issue CRIME CIVIL WRONG TORT
N
1 Concept Act committed by Act against individual Violations of law by one person
person against society or person. against another person.
state.
2 Purpose of Punitive (Peace and To enforce rights. (To Compensation
law Order in society) ensure legal certainty)
3 Subject All heinous offences. Tort, breach of contract Defamation, battery, Looting,
matters and breach of trust are cheating, negligence,
subject matters of Civil trespassing, disturbing others
Wrong. while enjoying own rights etc.
4 Point of Supreme Legislation Tort, contract or Common Law. (In Nepal - no
Origin relationship of trust. separate tort law but we have
list of criminal cases with
Individual Plaintiff (Byaktibadi
Faujdari mudda) which is
somehow related to tort).
SN ISSUE CRIME CIVIL WRONG
5 Starting FIR in Police station Generally District court
6 Investigation By Police Parties submit evidences
7 Laws Criminal Law (Cr. P C or P.C.) General Law
8 Prosecutor’s Yes. (Charge sheet) No. (Lawyers of both parties)
Role
9 Nature Act against society Act against person
10 Locus standi Open Limited to parties
11 Limitation Usually unlimited Restricted
12 List No. 9 of the Chapter in Court Other than criminal cases
Management of Muluki Ain,
2020 B.S.
 Classification of Crime on the
basis of Criminal Liability
1) Crimes of Relative Liability:
2) Crimes of Strict Liability:
3) Crimes of Vicarious Liability
4) Crimes of Inchoate Liability
5) Crimes of Joint Liability
1. Crimes of Relative Liability:
• Actus Reus + Mens Rea both present.
• Heinous offences
• Four stages of crime exist
i. Intention
ii. Preparation
iii. Attempt
iv. Commission of Crime
2. Crimes of Strict Liability:
• Actus Reus alone sufficient
• Mens Rea relevant in punishing
• Arguments for and against Strict Liability
a)Social interest
b)Prompt decision
c)Educative pattern
•Examples: Regulatory Offences, Trafficking offences,
Adulteration in food and drug, weight and measure,
environment pollution, driving without licence etc.
3. Crimes of Vicarious Liability:
• Liability arising from an act committed by others.
• Arises by 3 ways (torts):
i. By Ratification (e.g. guaranteer)
ii.By Blood relationship (e.g. parent or guardian)
iii.By Special relationship (e.g. master & servant / employer & employee)
•Limited scope in criminal law.
• Concept of vicarious liability only arises in case of civil liability.
As exc eption, it is applied even in criminal cases under 3 situations:

i. Deployment of innocent agent (e.g. to commit crime, causing

child to theft/steal, cause labour to carry narcotic load etc.).
ii. Negligence by company’s agent (only fine because no physical
body to imprison).
iii. Persons connected with crime as abetor.
Some Examples of Vicarious liability:
•Chattle owner liable for damage of crops by
domestic chattle. (Chapter of 4 footed animals in
Muluki Ain)
•Allowing person without licence to drive
vehicle if causes accident, up to 10 years
imprisonment. (Section 161(5) of Motor vehicles
and Transport Management Act, 2049).
3. Crimes of Inchoate Liability:
i. Crime of Incitement
ii. Crime of Conspiracy
iii. Crime of Attempt
4. Crimes of Joint Liability:
• “When a criminal act is done by several
persons, in furtherance of the common intention
of all, each of such persons is liable for that act
in the same manner as if it were done by him
alone.”  (Section 34 of IPC)
 Jurisdiction and Criminal Law
Power of court to decide a case.
1) Types of Jurisdiction:
A. Territorial Jurisdiction
B. Extra-territorial Jurisdiction
C. Personal Jurisdiction
-----------------------------------------------------------------------------------------
-
D. Territorial Jurisdiction (Concept):
• A court's power over events and persons within the bounds of a
particular geographic territory.
• The sovereign jurisdiction that a state has over the land within its
boundary limits, over its inland and territorial waters and to a
reasonable extent over the airspace above and subsoil below in such
land and waters, and over all persons and things within those areas
subject to its control.
 
 Territorial Jurisdiction (Concept)…
• Territorial jurisdiction refers to jurisdiction over cases arising in or involving persons
residing within a defined territory. It can also be the territory over which a government,
one of its courts, or one of its subdivisions has jurisdiction. If a court does not have
territorial jurisdiction over the events or persons within it, then the court will not be able
to bind the defendant to an obligation or adjudicate any rights involving them
• Nepalese Criminal Law recognizes Territorial Jurisdiction under following 3 situations:
(i) Nepalese courts will extent territorial jurisdiction over Nepalese citizen or foreign
national for crimes / attempts committed within the territory of Nepal.
(ii) Nepalese courts will extent territorial jurisdiction over Nepalese citizen or foreign
national who start criminal activities in Nepal or commit some part of crime in Nepal
and complete such crime in foreign land residing in Nepal or foreign land.
(iii)Nepalese courts will entertain jurisdiction in case someone stays abroad but commits
crime inside Nepal or in case of starting to do crime from abroad but complete the
crime in Nepal or in case of commission of crime in foreign land but affecting inside
the territory of Nepal.
• Example 1: Jurisdiction of District Court: “Except
as otherwise provided in the prevailing law, the
District Court shall have powers to try and settle, in
original jurisdiction, all the cases within its
jurisdiction.”-- Section 7 of Administration of Justice
Act, 2048.
• Example 2: No. 29 of the Court Management
Chapter in Muluki Ain, 2020 B.S. enlists types of
cases (civil and criminal) that come under the
territorial jurisdiction of district courts.
 B. Extraterritorial jurisdiction (ETJ)
• ETJ is the legal ability of a government to exercise authority beyond its normal boundaries.
• ETLaws are those laws  extending beyond its boundaries in the sense that they may
authorize the courts of that country to enforce their jurisdiction against parties appearing
before them in respect of things that they did outside that country.
• For example, many countries have laws which give their criminal courts jurisdiction to try
prosecutions for piracy or terrorism committed outside their national boundaries.
Sometimes such laws only apply to nationals of that country, and sometimes they may apply
to anyone.
• Example 1: “This Act shall extend throughout Nepal and anyone committing an offence
against Nepali citizen under this Act from foreign territory shall also remain within the
scope of this Act.” Section 1(3) of Human Trafficking and Transportation (Control) Act,
2064.
• Example 2: “It shall be extended throughout Nepal and applicable to all Nepalese citizens,
public servants residing anywhere outside Nepal and to the non- Nepalese citizens residing
in foreign countries having committed any act that may be deemed to be corruption under
this Act.” Section 1(2) of the Prevention of Corruption Act, 2059.
• Example 3: Section 2(1) & (2) of the Narcotic Drugs
(Control) Act, 2033 provides for Extra Territorial
Application of the Act. Accordingly, (1) This Act shall
also apply to Nepalese citizen or foreigner, who, while
residing in a foreign country, conduct transaction of
export or import of narcotic drugs from or into Nepal in
contravention of this Act or Rules framed or order issued
hereunder. (2) Any person who commits above mentioned
any act shall be prosecuted and punished according to
this Act as if he/she had committed such act within
Nepal.
 C. Personal Jurisdiction:
• Personal jurisdiction is the power of a court to
adjudicate the personal legal rights of parties properly
brought before it.  Requires that the court not only have
jurisdiction over the subject matter of the action, but
also that it have jurisdiction over each party to the
action.
•Personal jurisdiction concerns power of a court to
decide a case between the parties. Physical presence in
an area is always a basis for personal jurisdiction.
 2) Extradition (Supurdaki)

• Nepalese Extradition Act, 2045 (1988) regulates the procedure of

extradition in Nepal.
• Foreign government may request Nepal Government to extradite
their citizen from Nepalese land who has settled in Nepal after
absconding succeeded by commission of crime in foreign land. Nepal
government if deems appropriate may extradite such foreign national.
• Nepalese government may request foreign government to extradite
any of its national who has absconded to foreign land after
committing crime in Nepal.
• Extradition is done between only those countries having extradition
Agreement. Nepal has such treaty with India (India-Nepal Extradition
Treaty, 1953) which is in process of amendment and China has
recently proposed same with Nepal.
• Extradition Treaty as defined in Section 2.5 denotes a treaty concluded
between Nepal Government and any foreign country relating to the
extradition of accused or offender relating to any offence.
• Nepal government will not extradite any foreign citizen even if
demanded under following 3 situations:
i. If the accused or offender is demanded for punishment on political
offence.
ii. If requested for extradition after expiry of limitation to initiate
proceedings against demanded accused or offender as per law of
that country.
iii. If legal proceedings is ongoing against such accused / offender as
per prevailing Nepal law.
THANK YOU