KATHMANDU, MAY 3
A minor who lacked meaningful representation in his case was wrongly put in jail for almost four years for failing to pay a fine of Rs 930,000.
A division bench of Justices Sapana Pradhan Malla and Bam Kumar Shrestha ordered Jhapa District Court to release the minor from a child correction home in Morang, terming the minor's imprisonment order issued on 3 July 2017 illegal.
The apex court issued the order in a habeas corpus writ petition filed by Executive Director of Public Defender Society of Nepal Ajay Shankar Jha.
The SC quoted provisions of Section 38 (1) on Punishment chapter of the erstwhile Muluki Ain (General Code) which stated: In determining the term of imprisonment in consideration of failure to pay a fine where both fine and imprisonment have been imposed, the term of imprisonment shall not be so determined as to exceed the term of more than four years. Provided that in determining the term of imprisonment for a minor in consideration of failure to pay a fine, the term of imprisonment shall be determined as not to exceed half the term of imprisonment that can be imposed on a person having attained majority.
The court also stated that as per section 36 (3) of The Act related to Children, 2018, a child above the age of 14 and below the age of 16 should not be imposed more than half of the jail term that can be imposed on a person having attained majority.
The apex court said that as per Section 39 (2) of the Act made to Amend, integrate and repeal some Nepal laws, 2017, Section 36 (7) of The Act related to Children, 2018 shall apply and the minor who is below the age of 16 at the time when the offence was committed, should not be imposed a jail term.
The court said that Jhapa District Court's decision to impose jail term on the minor for failing to pay a fine, was not in conformity with the law. Jha told THT that although there were provisions for stipendiary lawyers in districts, nobody meaningfully represented the child before. The minor had been convicted in theft cases.
Jha said that Jhapa District Court imposed jail sentence on the minor in violation of Section 38 of Punishment Chapter of the erstwhile Muluki Ain, which stipulated that the jail term imposed on a minor below the age of 16 for failing to pay a fine, should not exceed the jail term that can be imposed on an adult person.
He said that the court of first jurisdiction failed to comprehend the spirit of the constitutional provisions that stated that no one should be deprived of equal protection of law. "There cannot be equal protection of law if on the one hand, a person who has the means to pay fine is allowed to avoid jail sentence, and on the other, when a minor who cannot pay fine is imprisoned," Jha argued. He said the country's justice system must consider compensating the minor who was unnecessarily put in jail for almost four years.
A version of this article appears in the print on May 4, 2021, of The Himalayan Times.