Orders the district court to adjudicate cases within three months
KATHMANDU, JUNE 28
The Supreme Court today rebuked Kathmandu District Court for not adjudicating a criminal case filed against Abadh Lal Shah, a resident of Ward No 18 of Kathmandu metropolis, who has been in judicial custody for three years and three months awaiting trial.
A division bench of justices Sapana Pradhan Malla and Til Prasad Shrestha issued a writ of mandamus on May 28, to Kathmandu District Court and others to decide Shah's case within next three months. The court released the full text of its order today.
Shah was arrested on 31 December 2019 on the charge of fraudulently obtaining two citizenship certificates for one person - naturalised citizenship and citizenship by descent - on the same day from Kathmandu District Administration Office and securing two passports on the basis of the two citizenship cards to use those documents for wrong reasons.
The police filed a criminal case against him under citizenship, forgery and passport law on 26 January 2020. He was sent to judicial custody on 29 January 2020. Police had also recovered illegal foreign currency from his house. The petitioner had argued that he could face a maximum jail term of one year and six months and as he had already spent three years and three months in jail, his detention was illegal.
Citing constitutional provisions, international law and case laws of the US and Indian Supreme Court, the SC said it was the duty of the court to deliver verdict within the timeframe determined by the law.
Unnecessary delay in adjudication of a case is a miscarriage of justice, the bench observed. The bench said the delay happened in the case as some defendants were absconding, but that did not justify the delay and hence the lower court should decide on the required process with regard to absconding defendants and in the case of the petitioner, it should decide within three months. Speedy justice is inherent in the right to fair trial which is linked to right to natural justice, fundamental rights and due process of law. Right to speedy justice is a fundamental right, the bench observed.
Stating that justice delayed is justice denied, the bench said the adjudicating bodies should always be mindful about delivering verdicts in time and avoiding delays. If a case is not decided within the appropriate time, then that goes against the right to fair trial guaranteed by Article 20 (9) of the constitution, the SC observed. The bench said right to fair trial was also linked to right to life and right to liberty guaranteed by the constitution.
Petitioner Shah had filed a writ of habeas corpus saying he had already spent more time than the punishment he may get as a result of all criminal charges levelled against him and hence his detention was illegal.
The SC said Section 78 of the Criminal Procedure Code stipulated that no one 'shall' be put in jail for more than the period of imprisonment he/she could be imposed by the court in a case.
The court said the petitioner, if convicted, could face a maximum jail term of five years and hence it cannot be said that he had already spent more time in jail than the maximum punishment he could face in these cases, and thus his detention was not illegal. This court, however, is serious about the delay in the adjudication of the case, the top court observed.
The SC said that Section 77 of criminal procedure code stipulated that the court should deliver verdict in a case within one year from the date the court gives court date to a case party for appreciating evidence and Section 131 of the same code stipulates that the court should deliver verdict generally within one month from the date the court finishes appreciating the evidence. The court also cited Article 10 of the Universal Declaration of Human Rights and 14(1) of the International Covenant on Civil and Political Rights that give everybody the right to fair hearing.
Article 14 (3) prohibits improper delay in the adjudication of cases.
The top court cited Baker Vs Wingo case decided by the US Supreme Court where the court said: Although a great many accused persons seek to put off the confrontation as long as possible, the right to prompt enquiry into criminal charges is fundamental and the duty of charging authority is to provide a prompt trial.
The petitioner had named Kathmandu District Court, Attorney's Office, Kathmandu, and Nepal Police headquarters as defendants.
A version of this article appears in the print on June 29, 2023, of The Himalayan Times.
