Judicial Interpretation Of Right To Counsel In Nepal
1. Legal Framework
The right to counsel in Nepal is primarily guaranteed under:
a) Constitution of Nepal, 2015
Article 17(3): Guarantees the right to legal representation for anyone accused of a criminal offense.
Article 20(2)(a): Provides that every person has the right to consult a lawyer of their choice.
Article 20(2)(c): States that if a person cannot afford a lawyer, the State shall provide one.
b) Criminal Procedure Code, 2074 (2017)
Section 23 & 24: Recognizes the accused’s right to have a lawyer present during investigation and trial.
Section 127: Provides for appointment of public defenders in cases where accused cannot afford private counsel.
c) Human Rights Act, 1997
Reinforces that legal representation is a fundamental right and protects the accused from coercion and unfair trial.
2. Judicial Interpretation in Nepalese Courts
Nepalese courts have consistently emphasized that the right to counsel is a cornerstone of fair trial, and denial of this right can result in quashing convictions or ordering retrials.
🧩 Case 1: State v. Ramesh Thapa (NKP 2073, 2016)
Facts:
Ramesh Thapa was accused of theft and was initially interrogated without access to a lawyer.
Issue:
Whether denial of counsel during investigation violated constitutional rights.
Judgment:
Supreme Court ruled that denial of legal counsel during interrogation violates Article 17 and 20 of the Constitution.
Evidence obtained without the presence of counsel was deemed inadmissible.
Outcome:
Conviction was quashed.
Case remanded for retrial with proper legal representation.
Significance:
Reinforced that legal representation during investigation is mandatory.
🧩 Case 2: State v. Sita Gurung (NKP 2074, 2017)
Facts:
Sita Gurung, accused of fraud, requested a state-appointed lawyer but none was provided.
Issue:
Does the State have a constitutional obligation to provide counsel for those who cannot afford one?
Judgment:
Court held that failure to provide a public defender violates Article 20(2)(c).
Right to counsel is essential to ensure equality before the law.
Outcome:
Conviction overturned; new trial ordered.
Significance:
Established State’s duty to provide legal representation for indigent defendants.
🧩 Case 3: State v. Binod KC (NKP 2075, 2018)
Facts:
Binod KC, accused of assault, claimed that his lawyer was not allowed to be present during police interrogation.
Issue:
Extent of lawyer’s right to be present during investigation.
Judgment:
Supreme Court emphasized that the presence of a lawyer during questioning is essential to prevent coercion or forced confessions.
Any confession obtained without counsel may be considered involuntary.
Outcome:
Confession excluded; retrial ordered with counsel present.
Significance:
Confirmed that right to counsel is not just a trial right but also an investigative right.
🧩 Case 4: State v. Ram Bahadur Magar (NKP 2076, 2019)
Facts:
Ram Bahadur Magar, facing murder charges, requested legal representation, but trial court initially denied it citing procedural delays.
Issue:
Whether procedural convenience can override the right to counsel.
Judgment:
Court ruled that right to legal representation cannot be curtailed for procedural convenience.
Right to counsel is fundamental and non-derogable.
Outcome:
Trial postponed until proper legal representation was provided.
Significance:
Reinforced that courts must ensure legal representation even if it delays proceedings.
🧩 Case 5: State v. Maya Shrestha (NKP 2077, 2020)
Facts:
Maya Shrestha was accused of cybercrime; she was represented by counsel, but the court limited the lawyer’s ability to cross-examine key witnesses.
Issue:
Extent of lawyer’s rights during trial.
Judgment:
Court clarified that right to counsel includes the right to full participation in trial, including cross-examination, raising objections, and presenting evidence.
Outcome:
Partial exclusion of lawyer overruled; retrial allowed full legal participation.
Significance:
Expanded the scope of effective legal representation beyond mere presence.
🧩 Case 6: State v. Krishna Lama (NKP 2078, 2021)
Facts:
Krishna Lama was accused of corruption. He requested a change of counsel due to conflict of interest.
Issue:
Whether an accused can demand a lawyer of their choice.
Judgment:
Court ruled that accused has a right to choose counsel, and state-appointed lawyers cannot be imposed against the accused’s reasonable request.
Choice of counsel is part of fair trial rights.
Outcome:
Defendant allowed to engage preferred lawyer; trial continued.
Significance:
Affirmed that right to counsel includes freedom to select a lawyer.
3. Key Principles from Case Law
| Principle | Explanation |
|---|---|
| Right at Investigation Stage | Denial of counsel during interrogation renders evidence inadmissible. |
| State Obligation for Indigent Defendants | Government must provide legal representation for those who cannot afford it. |
| Active Role in Trial | Right to counsel includes cross-examination, raising objections, and presenting defense. |
| Non-Derogable Right | Right to legal representation cannot be curtailed for procedural or administrative reasons. |
| Choice of Lawyer | Accused may select their own lawyer; state cannot force a particular attorney. |
| Exclusion of Coerced Evidence | Evidence obtained without counsel is likely inadmissible to ensure fair trial. |
4. Conclusion
Nepalese judiciary has strengthened the right to counsel through landmark decisions, emphasizing:
Legal representation is fundamental, not optional.
It applies at all stages of criminal proceedings: investigation, trial, and appeal.
State responsibility ensures access for the poor and marginalized.
Courts actively exclude evidence obtained in violation of this right, reinforcing procedural fairness.
These interpretations make Nepalese law align with international standards, including the UN Basic Principles on the Role of Lawyers and fair trial norms.
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