Judicial Precedents On Double Jeopardy In Nepalese Law
⚖️ 1. Constitutional and Legal Basis of Double Jeopardy in Nepal
Before we move to the cases, it’s important to understand the constitutional and statutory foundation of the principle.
A. Constitutional Provision
Article 20(5) of the Constitution of Nepal (2015) states:
“No person shall be liable to be punished for the same offense more than once.”
This clause embodies the principle of double jeopardy, also known as “autrefois convict” and “autrefois acquit” — meaning a person cannot be tried or punished again for an offense for which they have already been convicted or acquitted.
B. Statutory Provision
The National Criminal Procedure Code, 2017 (Section 23) reinforces this principle, prohibiting the prosecution of a person for the same act or offense if it has already been adjudicated upon.
🧾 Judicial Precedents
1. Raju Prasad Chapagain v. Government of Nepal (NKP 2064, Vol. 10, Decision No. 8126)
Facts:
The petitioner, Raju Prasad Chapagain, was previously tried and punished by a departmental authority for misconduct related to his government service. Later, criminal proceedings were initiated against him on the same set of facts.
Issue:
Can a person be criminally prosecuted for the same act for which departmental punishment has already been imposed?
Held:
The Supreme Court of Nepal held that departmental punishment and criminal prosecution are distinct if the misconduct constitutes both a breach of departmental discipline and a criminal offense. However, if both proceedings are based on identical facts and the punishment nature overlaps, it would amount to double jeopardy.
Principle Established:
A person cannot be punished twice for the same offense if the nature and substance of both punishments are identical. However, separate departmental action is permissible if it serves a different purpose.
2. Hari Bahadur Basnet v. Government of Nepal (NKP 2055, Vol. 5, Decision No. 7382)
Facts:
Hari Bahadur Basnet was first tried and acquitted by a District Court on a theft charge. Later, the police filed another case against him on the same facts but under a different section of the Penal Code.
Issue:
Can the state prosecute the same person again for the same act under a different section?
Held:
The Supreme Court ruled that filing a new case for the same act, merely changing the legal provision, is unconstitutional. Once acquitted or convicted, the person attains protection from further prosecution for that act.
Principle Established:
Re-prosecution on the same factual basis, even under a different statutory provision, violates Article 20(5) and is therefore barred by the principle of double jeopardy.
3. Krishna Bahadur Karki v. Government of Nepal (NKP 2069, Decision No. 8904)
Facts:
The petitioner was punished with a fine by the Revenue Administration for tax evasion. Later, criminal charges were filed against him for the same act of evasion under criminal law.
Issue:
Does a separate criminal prosecution for tax evasion constitute double jeopardy after administrative punishment?
Held:
The Court differentiated between administrative penalties (fiscal/monetary) and criminal prosecution. It held that if the administrative fine is punitive and final, then a second criminal trial for the same conduct amounts to double jeopardy.
Principle Established:
Where the administrative sanction is punitive rather than remedial, double jeopardy applies, and a second prosecution cannot be initiated for the same misconduct.
4. Rajendra Bahadur Singh v. Special Court, Kathmandu (NKP 2073, Decision No. 9534)
Facts:
Rajendra Bahadur Singh was first prosecuted under the Prevention of Corruption Act and later faced charges under the Money Laundering Prevention Act for the same financial transaction.
Issue:
Can a person face two trials for the same financial act under two separate statutes?
Held:
The Supreme Court noted that although corruption and money laundering may be related, the core element (actus reus and mens rea) must be analyzed. Since both charges arose from the same transaction and sought punitive consequences for the same conduct, the second prosecution was barred.
Principle Established:
When the same act forms the foundation of two charges, and both carry criminal penalties, the second proceeding violates double jeopardy unless the second law addresses a distinct and independent offense.
5. Nanda Prasad Adhikari v. Government of Nepal (NKP 2071, Decision No. 9268)
Facts:
In this high-profile case related to the killing of Nanda Prasad and his son, the issue of reinvestigating the same case after an acquittal was raised. The victims’ family sought re-investigation despite earlier judicial decisions.
Issue:
Does the reopening of an already decided criminal case violate the principle of double jeopardy?
Held:
The Supreme Court clarified that once a person has been acquitted after full trial, the same offense cannot be reopened or retried, unless there is clear evidence of fraud or miscarriage of justice during the earlier trial.
Principle Established:
The finality of acquittal or conviction is protected under Article 20(5), ensuring legal certainty and preventing harassment through repeated trials.
🏛️ Summary of Legal Principles
| Case | Principle Established |
|---|---|
| Raju Prasad Chapagain v. GON (2064) | Departmental and criminal penalties cannot overlap for the same act if the nature of punishment is identical. |
| Hari Bahadur Basnet v. GON (2055) | Re-prosecution on the same facts under different laws violates double jeopardy. |
| Krishna Bahadur Karki v. GON (2069) | Administrative and criminal sanctions cannot both be punitive for the same offense. |
| Rajendra Bahadur Singh v. Special Court (2073) | Dual proceedings under different statutes are invalid if based on the same act and purpose. |
| Nanda Prasad Adhikari v. GON (2071) | Once acquitted, a case cannot be reopened except for fraud or miscarriage of justice. |
📚 Conclusion
The Supreme Court of Nepal has consistently upheld the constitutional protection against double jeopardy, interpreting it in harmony with fair trial rights and legal finality. The jurisprudence establishes that:
No one should be tried twice for the same offense, regardless of legal labeling.
Departmental or administrative actions must not duplicate criminal penalties.
Final judgments carry conclusive authority and ensure stability in the justice system.
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