Nepal | February 28, 2020

Judge Gautam files petition challenging his indictment in land grab case

Himalayan News Service

Kathmandu, February 12

Chitwan District Court Judge Binod Kumar Gautam, who has been indicted in the Lalita Niwas land grab case by the Commission for the Investigation of Abuse of Authority, today filed a writ petition at the Supreme Court challenging his indictment.

Gautam, who was indicted for his alleged wrong legal opinion, said while he worked as an under-secretary (Law) at the Ministry of Physical Infrastructure and Transport, he only gave an opinion while submitting a proposal to the then deputy prime minister Bijaya Kumar Gachhadar  for the purpose of submitting proposal to the Cabinet for endorsement.

Gautam stated in his petition that he did not give opinion on registering any land in any individual’s name and he had merely given his opinion to the Cabinet to take appropriate decision on the issue.

Gautam said he had sincerely performed his role as a legal officer at the ministry when he was posted there and it was up to the decision maker to accept or reject his legal opinion. “It is a judicial principle that an opinion is not a decision in itself and an opinion cannot be binding on the decision maker,” he stated in his petition.

Gautam said the CIAA’s indictment was wrong also because his legal position had changed from the time he gave his legal opinion to the Ministry of Physical Infrastructure and Transport and the time of the indictment when he was a judge.

Gautam said Article 239 of the constitution  and Section 4 that defined the jurisdiction of the CIAA did not give the CIAA  power to investigate incumbent judges and as judges were appointed by the Judicial Council, any investigation against judges should be done by the JC only and not the CIAA.

Gautam argued that since the Judicial Council had the power to take disciplinary action against a judge and sack a judge, the power to suspend a judge also rested with the JC and not the CIAA.

He also cited Section 16 of the Act related to interpretation of law to argue that only the authority that had power to make appointment could take punitive action against the persons appointed by that authority.

 


A version of this article appears in print on February 13, 2020 of The Himalayan Times.


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