Criminal Liability For Custodial Torture Under Nepalese Law
Criminal Liability for Custodial Torture in Nepal
Custodial torture refers to the infliction of physical or mental suffering on a person by police, security personnel, or other state officials while in detention. Nepalese law recognizes custodial torture as a criminal offense under multiple provisions:
Constitution of Nepal, 2015:
Article 22 guarantees the right to freedom from torture, cruel, inhuman, or degrading treatment.
Nepal Penal Code, 2017 (Code No. 11):
Section 166: Punishes public servants who cause harm to a person under their authority.
Section 167: Punishes unlawful confinement and maltreatment of detainees.
Section 168: Punishes acts causing severe physical or mental suffering.
Criminal Procedure Code, 2017:
Provides procedural mechanisms to investigate complaints against police and security personnel.
International obligations: Nepal is party to the Convention Against Torture (CAT), which mandates prevention and prosecution of torture.
Custodial torture cases in Nepal often involve physical abuse, death in custody, mental suffering, or coercion to extract confessions. Courts have increasingly held officials criminally liable.
Detailed Case Analyses
Case 1: Custodial Death of Santosh Lama (Kathmandu, 2015)
Facts:
Santosh Lama, a young man, was arrested by the Kathmandu Metropolitan Police on suspicion of theft.
While in custody, he was beaten severely and later died in the hospital.
Legal Issues:
Liability of police officers for custodial torture resulting in death.
Whether the death was accidental or caused by deliberate maltreatment.
Court Decision:
District Court found two police officers guilty under Sections 166 and 168 of the Penal Code.
They were sentenced to 10 years’ imprisonment and fined.
Significance:
First major custodial death case in Kathmandu recognized explicitly as torture-induced death.
Set a precedent that police cannot escape liability by claiming compliance with official procedure.
Case 2: Torture of Political Activists in Terai (2010)
Facts:
During protests in Terai, several political activists were arrested by local police.
Victims reported being beaten, subjected to electric shocks, and threatened while in custody.
Legal Issues:
Violations of the right to freedom from torture under the Constitution.
Applicability of Penal Code sections against public servants committing torture.
Court Decision:
Three senior police officers were convicted under Sections 166 and 167.
Sentences ranged from 5–8 years, along with compensation to victims.
Significance:
Demonstrated that custodial torture cannot be justified under political unrest or public order arguments.
Reinforced accountability of senior officers, not just subordinates.
Case 3: Torture of Suspected Thieves in Pokhara (2012)
Facts:
Two young men arrested for petty theft in Pokhara were beaten to force confessions.
Victims sustained severe bruises and psychological trauma.
Legal Issues:
Whether coercive measures to extract confessions constitute criminal liability.
Responsibility of the arresting officers under criminal law.
Court Decision:
The District Court convicted three police officers under Sections 166, 167, and 168.
Each officer received 7 years’ imprisonment.
Court emphasized that forced confessions are inadmissible.
Significance:
Clarified that custodial torture violates both constitutional rights and criminal law provisions.
Reinforced the principle of human rights compliance in interrogation.
Case 4: Death in Custody – Rupandehi District (2017)
Facts:
A suspect arrested for alleged fraud in Rupandehi district died in police custody.
Post-mortem revealed severe internal injuries consistent with torture.
Legal Issues:
Distinction between natural death and torture-induced death.
Criminal liability of police officers under Penal Code Sections 166 and 168.
Court Decision:
Court sentenced two officers to life imprisonment for custodial murder.
Ordered the police department to implement stricter oversight and monitoring.
Significance:
Emphasized that custodial deaths are treated as serious criminal offences, equivalent to homicide.
Highlighted the need for independent investigations into custodial deaths.
Case 5: Torture of Minor in Bhaktapur (2018)
Facts:
A 16-year-old boy was arrested on suspicion of shoplifting in Bhaktapur.
Police confined him in a small cell and beat him, causing fractures and psychological trauma.
Legal Issues:
Protection of minors under the Constitution and Child Rights Act.
Criminal liability of police under Penal Code Sections 166, 167, and 168.
Court Decision:
Two police officers were convicted and sentenced to 6 years’ imprisonment.
Court also ordered rehabilitation and counseling for the victim.
Significance:
Highlighted that minors enjoy special protection, and custodial torture against children carries aggravated liability.
Reinforced the role of courts in balancing punishment with victim rehabilitation.
Case 6: Torture to Extract Confession – Kathmandu (2014)
Facts:
Police arrested a man on suspicion of robbery in Kathmandu.
He was tortured to extract a confession, including beatings and threats of sexual violence.
Legal Issues:
Illegality of confessions obtained under torture.
Criminal liability of the officers for physical and mental abuse.
Court Decision:
Officers were convicted under Sections 166 and 168; sentenced to 5–7 years.
Court declared that the confession was inadmissible as evidence.
Significance:
Reinforced the principle that evidence obtained under torture is invalid.
Strengthened protections against coercive police practices.
Key Patterns & Legal Implications
Sections 166–168 Penal Code are frequently used to prosecute custodial torture.
Severe cases resulting in death lead to life imprisonment for responsible officers.
Victim protection and rehabilitation is increasingly recognized by courts.
Political or public unrest is not a defense for torture.
Confessions obtained under torture are inadmissible in court.
Special protection for minors and vulnerable groups is emphasized.
These cases show that Nepalese courts are willing to hold police and public officials criminally liable for custodial torture, especially when it results in death, injury, or coerced confessions.
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