Chapter 3: Criminal liability

Chapter 3: Criminal liability 

a) Meaning:

When we fail to do obligation, it arises liability. Likewise, criminal liability arises in violation of criminal law.

b). Classification of criminal liability 

1. Relative liability

• Presence of both actus reas and mens rea.
• There are 4 stages:

• Also included in following category 
  • Crime based on knowledge 
  • Being involved in criminal gang knowing it is illegal
  • Crime based on dishonesty 

• Case: Nepal government V. Prem alias Shankar Bika decision no. 10070 

  In this case court have clearly described about the relative liability and its stages. 

  Example: - Human trafficking and rape. 

2. Strict liability 

• When a person is liable for the commission of any act without considering his/her mens rea it is termed as strict liability. 
• Muluki criminal code section 29 states that in offences which have strict liability the evaluation of mens rea is not required.
• Section 219 of Muluki Criminal Code states sexual intercourse with girl under 18 years of age with consent does not count mens rea and is strict liability. 
• Actus reas alone is sufficient to hold liable.
• 4 board categories of strict liability:
  • Regulatory laws-traffic fine
  • Protective law-women children 
  • Law relating to social health-air, water, pollution 
  • Law relating to weight and measure
• Case: Nepal government v. Ashish Rana alias Laure 

3. Vicarious liability

• If one is liable for an act committed by another it is called vicarious liability
• It has following situations:
  • Child instructed to commit crime (section 28 of MCC)
  • Company liable for negligent act of its agent (section 30 of MCC)
  • License holder liable for allowing to drive vehicle to non-license holder. Case: Buddha Ratna Khadgi V. HMG 
  • Inciting any women to be engaged in prostitution. 

4. Inchoate liability 

• Mens rea have 4 steps that are 
  • Incitement
  • Conspiracy
  • Attempt 
  • Commission 
• Until there is 4th step i.e. commission the act falls under inchoate liability.
• Inchoate liability is imposed by state to prevent from further crime.

c) General principle of criminal liability

1. Ignorance of law is no excuse

No person can plead ignorance of law as defense in any criminal charge. Law is something that ought to be known and understood by everybody. 

• Civil code section 5
• Criminal code section 8
• Case: Cambert v. California 355, US-225 

2. Act done without guilty mind does not amount crime

1. Act must always be led by guilty mind (mens rea)

   Actus rea + mens rea = Crime

   Strict liability can be regarded as the exception to this principle.

• Criminal code section 14 

• Case: R V. Thabomeli 

  In the above mentioned case the person hits the victim and throws the body in river. But in court he presents his defense on the fact that the death was caused by drowning not by the assault. But the mens rea is assessed in this case. 

3. Doctrine of double jeopardy 

No one shall be prosecuted and punished again for the same crime. The aim of this principle is to bring every case to an end. The value of judicial decision is upheld through it and it also aids protection of court resources.

Doctrine of double jeopardy does not apply, if:

• Decision giving institution was not able or had no jurisdiction
• If the case was dismissed due to miss-trail 

In criminal law with the application of this principle the emotion of revenge in the victim is also negated. 

• Criminal code section 9
• Constitution article 20 (6)
• Case: Mahesh Chapagai v. Nepal Government D.N. 8874
• Case:  Durga lal Chaudhari v. HMG NKP 2042; Treason done by Durga Lal et al and were granted pardon as per constitution of 2019 by King, but case was again filed so Supreme Court applying this principle quashed it. 

4. Criminal law has no retrospective effect 

No law, no punishment, and prosecution should be as per the law. 

If the offence is committed and law is subsequently amended after that with the increase in punishment than the perpetrator cannot be given the large amount of punishment but if the subsequent amended law has decreased punishment, perpetrator gets less amount of punishment. 

• Sentencing Act section 5
• Criminal code section 7, 8
• Case: Hari Prasad v. Bhadra P. Kharel NKP 2062, 
• Case: Uttam Lama v. HMG NKP 2061 

5. Crime dies with criminal

After death of the offender, we cannot punish him/her.

Criminal liability is not transferred.

Though accused is dead, prosecution continues to finalize the reparation issue. (बिगो)

Laws:

• Criminal Procedure Act section 158 

• Anti-Corruption Act 2059 section 46

  Guilt of corruption may be prosecuted even after death. 

• Case: Pralad alias Kumar Karki v. HMG, NKP 2044; Murder charge, claimed self-defense but the accused died hence the case was dismissed.

6. Presumption of innocence 

It assumes the accused to be innocent until he/she is proven guilty beyond reasonable doubts on the ground of evidence. It protects accused from social degrade and stigmatization.

Its relation with procedural law can be drawn as procedural law has established the principle of due process of fair trial.

• Article 20 of the constitution of Nepal
• Right to remain silent
• Right to be informed about trial procedure
• Present in front of judiciary within 24 hours of arrest
• Right to legal representation 
• Right to fair trial
• Article 22 of the constitution of Nepal: right against torture
• Article 28 of Constitution of Nepal: Right to privacy
• Criminal code section 12

• Case: Yagya Murti Banjade v. Durga Das Shrestha; Without notice arrest and no legal representation was provided to the accused.