What is criminal law? Its history, principles, importance and necessity.

What is criminal law? Its history, principles, importance and necessity.

Any inhumane act that causes fear and insecurity in the society is a crime. Criminal acts are punishable. Crimes should not be committed or perpetrated and those involved in criminal activities or criminals should not be protected or assisted. Criminal law is needed to maintain peace and order in society by controlling crime and criminal activities.

In today's article, you will learn about what is criminal law, what are the principles of criminal law, the jurisdiction of criminal law, the history, necessity, and importance of criminal law in Nepal, as well as the main reason for the issuance of the National Criminal (Code) Act, 2074 in Nepal.

Introduction of Criminal Law

Criminal law is a law that defines matters relating to crimes. Criminal law provides a basis to determine what constitutes a crime, how the offender is punished, and what legal proceedings are operated after a crime has been committed. Criminal laws are enacted to prevent any kind of criminal activity and to maintain peace and order in the society.

Criminal law determines what acts are considered a crime and what acts are not. This means that criminal law says not to do anything and if someone does then it is considered a crime. Threatening others is a crime. It is also a crime to conspire or attempt to kill or seriously injure anyone or to cause such an incident.

For example, if the law does not declare an act that may result in the death of a person as a crime, then it is not considered a crime and cannot be punished. For example, before the promulgation of the Civil Act 2074, Nepal's law did not make match-fixing a crime that why no legal proceedings were taken against players of Nepal's football team for match-fixing.

The case reached to the Supreme Court but the Supreme Court did not punish the players because there was lacking of law. And the Supreme Court ordered the government to make a law on the subject. After that, the law related to match fixing was made in the Muluki Ain, 2074 BS.

Criminal law studies matters related to crime, offenders, and punishment. Parliament has the right to decide what acts are crimes and codify them into statutes. Criminal law deals with matters relating to theft, robbery, fraud, felony, and treason.

Criminal law is studied in two parts, criminal substantive law and criminal procedural law. Criminal substantive law determines which act is a crime and which offense will be punished, how much punishment will be given while criminal procedural law deals with which offense was committed, what process will take place, and how to proceed, related to the court process.

History of Criminal Law in Nepal

Looking at the history of criminal law in Nepal, it can be seen that the development of criminal law has started directly or indirectly since the development of law in Nepal. According to the history of the Nepali legal system, the history of criminal law can be understood by dividing it into different periods.

Kirat Period

All the laws of the Kirat period were based on scriptures. Mundhum is one of the most important scriptures of the time. In the Kirat period, for the Justice Administration of Nepal, there were various provisions for criminal law even at that time. At that time, under the criminal law, the issues related to theft, fraud, insult, rape have been mentioned in Mundhum.

Lichchavi Period

Even during the Lichhavi period, the records of the time covered theft, murder, and kidnapping of another's wife.

Malla Period and Shah Period

Looking at the history of criminal law in Nepal, it is found that some reforms have been made in criminal law from the Malla period to the Shah period and some new provisions have also been adopted.

History of criminal law in Nepal after codification

Even after the codification of Nepal, criminal law has been developed with many amendments and changes from time to time to include new provisions according to time and situations.

Muluki Ain 1910

The Muluki Ain, 1910 was the first law to be enacted systematically. It adopted the provisions such as theft, robbery, embezzlement, forgery, and extortion under criminal law. The Civil Code was enacted in 1910, so it is not easy to read now. This law is currently not available in any library.

Muluki Ain 2020

The Civil Code 2020 amended the criminal law as per the need, amended the old provisions, and adopted the new criminal system. Such as marriage-related provisions, rape-related provisions, instrument related, etc. The Civil Code of 1910 gave legal recognition to the caste system and untouchability, while the Civil Act 2020 abolished the provision of 110 years and ended caste discrimination and untouchability. The Muluki Ain 2020 was also repealed after the new Muluki Ain 2074 came into force on Bhadra 1, 2075 BS.

Muluki Ain 2020

Muluki Ain 2074 was issued on Bhadra 1, 2075 B.S. This code has been divided into five parts National Civil (Code) Act, 2074, National Civil Procedure (Code) Act, 2074, National Criminal (Code) Act, 2074, National Criminal Procedure (Code) Act, 2074, etc.

Unless a separate act is made for a particular crime, the provisions of this national law are generally applicable, that is, in every case the punishment is as per its provisions and if a special act is made, the punishment is as per that act. The National Criminal Code Act 2074 provides for crimes related to the following issues.
  • Personal arrangements
  • Murder
  • Rape
  • Instrumental
  • Property
  • Anti-state issues

Jurisdiction of Criminal Law

Jurisdiction of criminal law is the area of ​​application of criminal law. The jurisdiction of criminal law is clarified by section 2 of Chapter 1 of the Criminal Code Act 2074. Section 2 deals with the general jurisdiction of criminal law and special jurisdiction.

According to the provisions of the Criminal Code Act, if a person commits a crime inside Nepal, action and punishment will be taken accordingly. It has been clarified that there will be punishment. Now the provisions related to this subject are as follows: -

Sub-section 1 of Chapter 1 states that anyone who abdicates, the trafficking of girls, physical and mental torture to any person by detention, cruel inhuman torture, forgery, and any other offense shall be punished as he has committed such crime within Nepal.

Sub-section 2 makes it clear that if a person commits any offense under this Act while he is out of Nepal in an aircraft or vessel registered in Nepal, he shall be punished by this Act as if he had committed such offense within Nepal.

Sub-section 3, if any Nepali citizen commits any of the following offenses against any Nepali citizen by staying outside Nepal, he she shall be punished by this Act as if he/she has committed such offense within Nepal.

(A) the offense of killing, inciting, or conspiring,
(B) the offense of abandoning a helpless person,
(C) the offense of mutilation,
(D) abduction, hostage-taking or illegal detention,
(E) the offense of forcible act or fornication,
(F) Offense of mixing food or medicine for the purpose of import into Nepal

Principles of Criminal Law

The principles of criminal law are those that seem to describe what kind of action would be a crime, what kind of action would not be a crime, and what kind of crime should be punished. There are many principles of criminal law, but what principles are adopted in the law of Nepal is mentioned in chapter 2 of the Civil Criminal (Code) Act 2074. Below is a description of some of the principles of criminal law.

6. An act that is by the law and forgivable by the law is not a crime: An act that is to be done by the law or that is considered forgivable by the law will not be considered a crime.

7. No punishment without law: No person shall be liable to punishment for any act which is not punishable by law, and no person shall be punished more than prescribed in the case of offense.

8. An act done under the illusion of facts will not be considered an offense: Any act done with good intentions believing that it should be done according to the law under the illusion of facts or considered forgivable will not be considered an offense.

But the work done in ignorance of the law will not be forgiven.

9. Principle of double jeopardy: No person will be tried and punished more than once for the same offense in the court.

10. Principle of fair trial: No person shall be deprived of a fair hearing in the proceedings of a competent court or judicial body.

11. Not to be forced to be a witness against oneself:  A person accused of any crime will not be forced to be a witness against himself.

12. Innocent until proven guilty: A person accused of a crime will not be found guilty until proven guilty.

13. An act done by children is not a crime: Any act done by a child under the age of ten will not be considered a crime.

14. Work done by an unconscious person will not be considered a crime: The work done by a person who is not aware of the nature, quality, fault, or result of such work due to mental illness while doing any work will not be considered a crime.

15. Work done with consent shall not be considered a crime: Except with the intention of taking life or mutilation or knowing that death or mutilation may occur, any work done with the consent of a person above the age of eighteen years shall not be considered a crime.

16. Work done for the sake of good will not be considered an offense: It will not be considered a crime if a person who has done such work with good intentions for the good of a person but is harmed by doing such a thing with good intentions.

17. The act done with the consent of the guardian for good will not be a crime: For the good of a person who has not attained the age of eighteen years or is unconscious due to mental illness, such act shall not be considered as guilt if it is done by his guardian or any other person with the consent of such guardian for his good.

18. Act done without permission for good will not be a crime: In the case of a person who is not in a position to immediately do any work for the good of the person, who for some reason is not in a position to immediately give permission to do such work and in the absence of a guardian who can immediately approve on his behalf. If you cause any loss or damage to yourself while working, such work will not be considered as guilt.

19. Even if it is done with permission, it will be considered an offense: Notwithstanding anything written in sections 15, 16, or 17, if the work written in those articles is considered as another offense as per the law, such act will be considered as an offense even if it is done with permission.

20. Consent: Consent may be expressed verbally or in writing or by gestures or conduct.

But the consent given in the following cases will not be considered as consent:-

(A) if it is known that a person has given his approval due to delusion of facts or any kind of loss, fear of loss, or if he has given such approval to the person acting by such consent or if he has reasonable reason to believe,

(B) if a person gives consent when he is not aware of the merits, faults, and consequences of the consent given due to mental illness.

(C) In the case of children under the age of eighteen years,

(D) Approved with improper effect.

21. No guilt if the information given in good faith causes harm: If any person is harmed by the information or knowledge of something given to a person with good intentions for his own good, such act shall not be considered as guilt.

22. Act done under fear will not be a crime: A person who carries a dangerous weapon or a poisonous or explosive device threatens to kill or mutilate a person or a close relative if he does not do anything immediately, and if he does not do so immediately, he or she or his close relative may be killed or mutilated. Such deeds done by such a person for a reasonable reason to be believed will not be considered a crime.

However, in the following cases, such an act shall be considered a crime: -

(A) In case of death or mutilation,
(B) in case of coercion,
(C) for committing an offense against the State, or
(D) If the person doing such work is in such a state of fear due to himself or because of any work he has done.

(2) Under Sub-section (1), a person who commits a crime of fear or intimidation shall be punished by the law as if he/she has committed such a crime himself/herself.

23. No harm done in good faith to prevent other harm, loss: If someone does not do any harm immediately, the loss of life or property of someone else will be greater than the loss, without any criminal intent and potentially great loss, prevention of loss or Such an act will not be considered as a crime just because it is done with the good intention of knowing that harm can be done if it is done with good intentions.

24. An act done for a personal defense shall not be considered an offense: (1) Subject to this chapter, any act done while exercising the right of private defense shall not be considered an offense.

(2) Every person shall have the right to be protected from any unlawful loss of life, or property.

(3) The exercise of the right of personal defense by this Article shall be exercised only if there is a reasonable reason to believe that no unlawful damage can be done to one's own life or property if no immediate action is taken.

27. Minor loss, not to be considered a crime for the loss: Minor loss, damage done by a person of common sense will not be considered an offense.

28. Those who have reached the age of majority will be punished for the crime committed by the children: If someone is forced to commit a crime by deceiving, teaching, or influencing a child, the person who influenced, or taught will be punished for crime as if he/she has committed such a crime himself/herself.

29. Intention is not required in the case of Strict Liability: In the case of absolute criminal liability under this Act or law, it will not be tested whether such offense was committed intentionally or not.

30. Criminal liability of the person responsible for the offense committed by the organization: The person who has committed or has committed any act or offense under any act or law by this Act or the law shall be liable. If there are wealthy or stakeholders related to the work and the company or the organization, the operator, managing director, general manager and the executive head of such organization will have to bear the criminal liability.

31. All members will be punished for the offense committed by the group: If any offense is committed by a group of two or more persons, all the members of the group will be punished for such offense.

32. The victim of the crime shall have the right to be informed of the proceedings of the case and to receive compensation:

(2) Victims of crime shall have the right to receive justice by the law, including social rehabilitation and compensation.

Nature of Criminal Law

Criminal law has its own features and nature. This law is very different from civil law. The provisions in it are different from the provisions in the civil law. In this, the provision related to punishment is also different from that of civil. Which can generally be presented as follows: -
  • Ubiquity
  • Changeable
  • Retrospective effect
  • Punishment
  • Apply equally
  • Prevent crimes

Importance of Criminal Law

  • Criminal law prevents crime
  • To maintain peace and security
  • Punish criminals
  • Provide justice to victims
  • To ensure the feeling of safety

    Requirement of National Criminal Code Act, 2074

    National Criminal Code Act, 2074 - The verification was done on 30th September, 2074 BS. Effective from 1st September, 2075 BS. This Act has been enacted by the Legislature-Parliament by Article 296 (1) of the Constitution of Nepal. This Act is an act made to amend and consolidate the prevailing law on criminal offenses.

    The Civil Crimes Code Act 2074 has been divided into three sections namely Civil Crimes (Code) Act, 2074 BS, Civil Criminal Procedure (Code) Act, 2074 BS, and Criminal Offenses (Sentencing and Enforcement) Act, 2074 BS.

    The National Criminal Code Act 2074 was issued to maintain law and order in the country to maintain the morality, equity, convenience, and economic interest of the public, to maintain peace and harmony between different religious and cultural communities, to prevent and control criminal offenses and to provide timely criminal offenses.
    Anish Kumar Tiwari

    I am Anish Kumar Tiwari, founder of this blog. I can write very well on any topics and I like to share information on different topics through my blog. Thank you for visiting my blog.

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