Nepal | June 02, 2020

SC issues directive on waiver of elders’ sentence

Ram Kumar Kamat
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Kathmandu, April 1

The Supreme Court ordered district and high courts to take a call on the waiver of jail sentences of elderly prisoners who qualify for it.

This was stated in a full text of the verdict delivered in a habeas corpus writ petition filed by 75-year-old Pemba Gurung, a resident of Manang district against the government.

The SC delivered its verdict on 15 January 2019, but prepared the full text today. The apex court said it was authorising district and high courts to waive jail sentences of elderly prisoners as the government had neither designated the officers to take calls on the waiver nor had it framed the rules/manuals to govern the process for the waiver of elderly prisoners’ jail sentence.

Gurung, who had sought waiver of his jail sentence on grounds of his age and illness, died while his case was subjudice at the SC.

Gurung had stated in his petition that  he was 75 years old and was suffering from cancer, and as he had already served 80 per cent of his jail sentence, he qualified for 50 per cent waiver of the remaining jail sentence as per section 12 (1) of Senior  Citizens Act.

The petitioner died on October 10, 2018, in Kathmandu while undergoing treatment for cancer.

Chitwan National Park Office had, on 26 November 2014, imposed a jail sentence of 14 years and a fine of Rs 100,000 on Gurung but Hetauda Appellate Court had on 14 July 2015 commuted the convict’s sentence to a jail term of 10 years and a fine of Rs 50,000.

Jail authorities had refused to grant him a waiver saying rules for the same had not been formulated.

Gurung was sentenced to 10 years in prison for killing a rhino and selling its horn.

The question raised by the petitioner was of a serious nature and while there was reason for issuing the writ of habeas corpus, it could not be issued as the petitioner died during the adjudication process, the SC observed in its verdict.

The SC further said it was a mockery of the fundamental rights of the petitioner who died while demanding waiver of his remaining jail sentence, which he qualified for.

The SC issued directive order to the home ministry to immediately designate an authority who could decide on the waiver of jail sentence of elderly prisoners. It also ordered the government to immediately prepare a manual based on which the grounds and percentage of waiver on jail sentence could be prepared. The apex court ordered the Department of Prison Management to prepare within 15 days the percentage of the waiver that elderly inmates could qualify for and the records of crimes they had committed. It further said that failure to do so could lead to non-implementation of fundamental rights of elderly prisoners.

The SC also ordered all district and high courts to visit prisons under their jurisdiction and order the release of elderly prisoners within 15 days if deemed necessary given the elderly prisoners’ age,  physical and mental condition and the nature of the crime committed.

The apex court also ordered district and high courts to take a call on the waiver of elderly prisoners’ sentence while fixing the quantum of punishment if they qualified for the same.

The SC chided Chitwan National Park that exercised quasi-judicial authority to convict Gurung in the rhino killing case saying that an authority which has the power to impose sentence cannot say that it does not have the power to waive the jail sentence.

SC’s ruling in Gurung’s case would also benefit some international prisoners who are doing time in Nepal and have sought waiver of the remaining jail sentence on grounds of age.

The verdict was delivered by a division bench of Justices Kedar Prasad Chalise and Sapana Pradhan Malla.

 


A version of this article appears in print on April 02, 2019 of The Himalayan Times.


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