KATHMANDU, MAY 4
The Supreme Court has issued a writ of mandamus to the government telling it to release industrialist Shekhar Golchha on bail/security.
The order was passed by a division bench of Justices Mahesh Sharma Poudel and Shreekanta Paudel in response to a habeas corpus writ filed by Golchha's wife Sima on his behalf. Golchha Group, Shekhar Golchha is the Chairperson of Golchha Group.
The court quashed the Kathmandu District Court's order to detain Golchha under the Securities Act observing that this Act allows the accused to post bail during the investigation and detectives did not seek bail/security from him and kept him in custody since his arrest. Police, however, said that Golchha is still in custody for further investigation.
The apex court observed that that permission was sought on April 24 to keep Golchha in custody for investigation of an offense under the Securities Act, 2007, and the Kathmandu District Court granted permission to detain the petitioner from that date. Subsequently, on May 4, the court granted permission under Section 14(6) of the National Criminal Procedure Code, 2017, to keep the petitioner in custody for a fourth time for four days, effective from May 3.
Section 104 (1) of the Securities Act, 2007 provides that, notwithstanding anything written in prevailing law, while adjudicating cases under this Act, if there are reasonable grounds to believe that a person accused under this Act may abscond or if loss or damage is seen, the investigating officer may demand necessary bail or security, and if such bail or security is not provided, the person may be detained.
However, in this case, the investigating officer did not demand bail or security from the petitioner but instead obtained permission to keep the petitioner in custody for investigation.
Therefore, the orders dated April 24 and May 4 to detain the petitioner are quashed by an order of certiorari, the court ruled apex.
Now, with respect to the offense under the Securities Act, a mandamus order has been issued directing that investigation be conducted in accordance with Section 104 by first demanding bail or security from the petitioner, and only if such bail or security is not provided, the petitioner may be detained.
The bench said that since a mandamus order has been issued, it is not appropriate to issue a habeas corpus order immediately as requested by the petitioner.
Regarding the alleged offense under the Insurance Act, 2022, it is not seen that permission was granted to detain the petitioner in custody. Only permission to issue an arrest warrant under Section 9(2) of the National Criminal Procedure Code, 2074, for investigation purposes has been granted, and as no claim has been made in the petition regarding this matter, it is not necessary to address it here.
Golchha was arrested by the CIB after being asked to conduct additional investigations based on the Nepal Securities Board's investigation report. The CIB had accused him of committing offence under Section 94,95,96 and 98 of Securities Act. These Sections deal with offence of manipulation in the share market and fraudulent acts.