The investigation into the Lalita Niwas land case, which started with the arrest of Bhatbhatini Superstore owner Min Bahadur Gurung on June 27, carried on for 62 days. During that time, the Central Investigation Bureau arrested many other individuals booking them for organised crime and document forgery.
The District Government Attorney’s Office (DGAO) in Kathmandu, however, on August 27, said it was only booking 290 people for document forgery and not organised crime leaving the CIB disappointed and surprised.
This decision by the District Government Attorney’s Office meant the CIB was wrong to have held these people in custody for so long. According to Nepal’s law, those being booked for document forgery could only be kept in custody for 24 days with a case being registered in the court on the 25th day. However, in the Lalita Niwas land case, the deadline for investigation has been consistently extended citing the need for time to probe into organised crime alongside document forgery.
The defense made
In the investigation report submitted by the police, it was observed various people forged government documents in 1986, 1993, 2011, and 2013.
However, since the Prevention of Organised Crime Act was only enacted in 2014, the DGAO said that under the principle of retroactive law, prosecution cannot take place.
“The incident preceding the law cannot be prosecuted by the latter. As per the law, we cannot book them for organised crime,” says Chief of the District Government Attorney’s Office Mahesh Prasad Khatri.
Given the new development, criminal law expert and senior advocate Satish Krishna Kharel points out that the decision to keep the individuals under custody for a month longer than legally viable.
“There is a potential case to be registered against the police for this unlawful detention. The question now is why did the District Government Attorney’s Office initially consent to extend the remand and how did the court sanction the detention,” Kharel questions.
Former Attorney General Agni Kharel hints the police might have said it was organised crime as it felt it needed more time for investigation. Given there is a clear understanding of retroactive law, Kharel says the District Government Attorney’s Office must have been aware and mindful. The failure to do so has put forward the doubts, he adds.
Meanwhile, officials from the CIB of the Nepal Police, report that the investigation was indeed being carried out under the collaboration of the District Government Attorney’s Office. It says the office knew what CIB was doing.
“We cannot proceed with the investigation of organised crime without consulting the public prosecutor. Why the nature of the case was changed should be questioned and clarified with the office. We are just as puzzled,” said SSP Dinesh Acharya.
Questions around arrests
On June 27, the CIB detained seven individuals, including Bhatbhateni proprietor Gurung, former election commissioner Sudhir Kumar Shah, former Dillibazar Land Revenue Office chiefs Dharma Prasad Gautam and Kaladhar Deuja, along with officials Gopal Karki, Surendra Man Kapali, and Bhupendra Mani KC.
The bench led by Judge Ishwor Prasad Khatiwada issued an interim directive that restrained the arrest of 17 individuals, including Deuja, Kapali, and KC, in document forgery as long as the case lodged by the Commission for the Investigation of Abuse of Authority (CIAA) was sub judice in the Special Court.
Following the issuance of this order, a discussion emerged around the investigation of the Lalita Niwas land case about the statute of limitations. In the National Civil (Code) Act (2017), it is stated that the case needs to be registered within two years of notice of the stipulated crime.
However, the CIB returned to the court with a petition to vacate Judge Khatiwada’s order and while speaking in a press conference, CIB chief AIG Kiran Bajracharya said that the case would be prosecuted according to the Civil Code, 1963, and that there would be no statute of limitations.
Working in doubts regarding the possibility of extension of custody, the bureau officers experienced relief as the court authorised to remand the accused in custody. On July 21, the bench of judges Prakash Kumar Dhungana and Nahakul Subedi endorsed the CIB’s request to extend the custody.
Following this development, the CIB apprehended additional individuals. On July 4, the CIB also extended the deadline under the Prevention of Organised Crime Act, asserting that elements of organised crime were present in the case. Consequently, the CIB was granted a period of up to 60 days for their investigation, while working together with the government attorney’s office.
But there seems to be a riff after the new development and change in the nature of the Lalita Niwas land case.
CIB versus public prosecutor?
According to the law, the public prosecutor possesses the authority to oversee the investigations carried out by the police. Frequently, the police undertake investigations in collaboration with the public prosecutor.
Advocate Satish Krishna Kharel says the public prosecutor is expected to exercise control over every stage of criminal investigation and provide legal guidance.
“However, in our system, this does not seem to be the case; de facto authority seems to be vested in the hands of the police,” says Kharel.
In the Lalita Niwas land case, there appears to be a lack of coordination between the public prosecutor and the CIB. Not only was the recommendation to proceed with the case involving organised crime overlooked but many other recommendations outlined in the investigation report were also disregarded by the public prosecutor’s office.
The CIB established former EC Shah as a pivotal person in the Lalita Niwas land case and recommended prosecution with a penalty/compensation of Rs 293.2 million. The CIB had also concluded that during his tenure in the Bhaktapur Land Revenue Office, Shah contributed to the encroachment of government land by procuring land from the Rana family.
It was also uncovered that Shah had acquired land equivalent to 360 square metres under his wife Urmila Shah’s name. Additionally, the property marked as lot number 36, registered under the names of Shah’s wife and Gehnath’s wife Bhuvankumari Chapagain, encompassed over 500 square metres of land.
The CIB also recommended that secretary Krishna Bahadur Raut should be prosecuted in the case. However, this was also overlooked. It faced accusations when they arrested Raut after his arrival from the Tribhuvan International Airport on July 9. Later, the court released him through a writ of habeas corpus.
The CIB has designated 286 individuals as defendants and submitted a report with their opinion, whereas the public prosecutor has identified 290 people as defendants to reclaim the land. This furthers the claims of lack of coordination between the two.
But this isn’t the first instance of a lack of coordination between the CIB and the public prosecutor. A dispute arose between the government prosecutor and the CIB after the name of Maoist leader Krishna Bahadur Mahara was included in the charge sheet for the case involving the smuggling of nearly nine kg of gold concealed in electronic cigarettes (vape).
According to sources, a disagreement arose when the CIB objected to the inclusion of mobile contact analysis details, of Krishna Bahadur Mahara, in the charge sheet. These details were taken from the CIB report that was still under investigation.
“DGAO Chief Achyutamani Neupane had made contrary decisions,” a source disclosed, requesting anonymity.
In the Lalita Niwas land case, there was an insistence from the DGAO to include statements from former prime ministers Madhav Kumar Nepal and Baburam Bhattarai. However, the police visited Nepal and Bhattarai’s residences and only obtained statements from them as government witnesses.
This story was translated from the original Nepali version and edited for clarity and length.
