Note of UNIT 1: INTRODUCTION.
Concept of Procedural Law
Procedural law is that branch of law which prescribes rules, processes, methods and procedures for initiating the cases in the court, enforcing the rights and duties and for obtaining remedy. Therefore, procedural law is also known as remedial law or adjective law.
According to Salmond, “Procedural law is that branch of law which governs the process of litigation.”
Procedural law prescribes rules on jurisdiction, representation of counsels, pleading and submission of evidence/witnesses, judgments, appeal, execution of judgments, costs, time and other matters. It has following features:
- It is lexfori. It means it is applied only within the jurisdiction.
- It has both prospective and retrospective effect.
- It is uniform and consistent.
- It is supplementary law of substantive law.
- It is of remedial nature.
- It exists to serve the substantive law; therefore, it is inherently instrumental in nature.
- It does not create rights and obligation of parties
Importance of Procedural law can be listed as below:
- Helps to maintain consistency and regularity through uniform procedure.
- Helps to maintain certainty.
- Necessary for attainment of justice.
- Ensures fair justice.
- Brings substantive law in practice.
- Without Procedural law, no rights or duties are enforced.
- Helps to seeks remedies.
- Prevents unnecessary litigation.
Differences Between Substantive and Procedural Law
| S.N. | Substantive Law | Procedural Law |
| 1. | It is that branch of law which defines rights and obligations of the parties concerned. | It is that branch of law which stipulates the practice, procedure and machinery for the imposition of rights and duties. |
| 2. | It is linked with rights, duties, power, privileges, liabilities and liberty of a person. | It is linked with the process of remedy. |
| 3. | It determines how people should behave. | It determines how legal case flows. |
| 4. | It is known as the end of law. | It is known as the means of law. |
| 5. | It has prospective effect only. | It has both prospective and retrospective effect. |
| 6. | It is cognitive in nature. | It is non-cognitive in nature. |
| 7. | It is purpose or objective oriented. | It is process or formality oriented. |
| 8. | It is applicable to legal context only. | It is applicable to both legal and non-legal context. |
| 9. | It is governed by statutory law. | It is governed by statutory law and court precedent. |
| 10. | It is concerned with matters outside the court. | It is concerned with matters inside the court. |
| 11. | It has independent power to decide the outcome of a case. | It has no such independent power. |
| 12. | It is a doctrinal or major part of law that acts at a policy level. | It is a supplementary part of substantive law that acts at pragmatic level. |
| 13. | It regulates only relation between the parties of a case by guiding all the basic rights of victim party. | It regulates the relation between the parties and the court. |
| 14. | It is superior to procedural law. | It is not superior as substantive law. |
| 15. | It is complex. | It is simple and practical. |
| 16. | It defines human conduct as crime. | It deals with the mode of proving crime. |
| 17. | It determines the degree of punishment. | It determines the mode of imposing punishment. |
| 18. | It curtails the right. | It does not curtail rights. |
| 19. | To determine nature and merit of the case. | To ensure fair application of substantive law. |
| 20. | It is law of rights. | Law of action. |
| 21. | Eg: Muluki Civil Code, 2074, Muluki Criminal Code Code,2074, etc. | Eg: Muluki Civil Procedure Code, 2074, Muluki Criminal Procedure Code, 2074, etc. |
| 22. | It focuses on substance of a case. | It focuses on observance of due process. |
Types of Procedure
A. General Procedure
The procedure carried according to general laws such as Administration of Justice Act, 2073, Muluki Civil Procedure Code, 2074 and Muluki Criminal Procedure Code, 2074 is called general procedure. Unless otherwise provision has been made for special cases by the Special laws, the general procedure is carried out.
According to Sec 3(2) of Muluki Criminal Procedure Code, 2074, “The matters of procedures on which special legal provisions have not been made under sub-section 1 shall be governed by this Act.”
B. Summary Procedure
The speedy proceeding applied in cases relating to minor claims or offenses is summary procedure. The objective of summary procedure according to preamble of Summary Procedure Act, 2028 is to provide for quick disposal of minor case and save the time and money of the parties.
According to Sec 3 of Summary Procedure Act, 2028, the procedure shall be followed on following cases:
- Cases set forth in Schedule 1.
- Civil cases involving the value/price or claimed amount valued at a maximum of Rs 1000 or criminal case carrying a fine of maximum Rs 1000 or imprisonment for a term not exceeding 6 months or both punishments, other than those set forth in Schedule 2.
C. Special Procedure
The procedure of cases which is conducted according to Special Court Act, 2059 is called Special Procedure. This Act has been enacted by the Parliament in order to make provision of power and procedure of Special Court with regard to the Constitution and to accomplish the trial and decision of special types of cases in an expeditious, prompt and effective manner.
According to Sec 2 (b) of Special Court Act, 2059, “Special types of cases means the special types of cases as specified by the Government of Nepal by publishing a notice in Nepal Gazette. Following cases will be heard by this Act:-
- Cases relating to Corruption
- Cases relating to Custom
- Cases relating to Export and Import
- Cases relating to Narcotic Drugs
- Cases relating to Foreign Exchange
- Cases relating to Crime against State
- Cases relating to Human Trafficking and Transportation
- Cases relating to Money Laundering
- Cases to be filed under CIAA Act, 2048
Differences between General, Summary and Special Procedure
| Basis | General Procedure | Summary Procedure | Special Procedure |
| Meaning | Any procedure other than summary or special procedure is general procedure. | Any procedure other than general or special procedure is known as summary procedure. | Any procedure other than general or summary procedure is known as special procedure. |
| Governing Law | It is governed by Administration of Justice Act, 2073, Muluki Civil Procedure Code, 2074 and Muluki Criminal Procedure Code. | It is governed by Summary Procedure Act, 2028 | It is governed by Special Court Procedure Act, 2059 |
| Court of First Instance | Generally District Court | District Court as well as quasi-judicial bodies | Special Court |
| Time to submit rejoinder | 21 days with additional 15 days | Up to 7 days | Up to 15 days |
| Extended time limit or date for appearance | Up to 15 days for one time and 21 days for maximum 2 times. | Up to 7 days | Up to 15 days |
| Duration of time to make decision | Within 1 year of filing a petition or 1 month of the completion of examination of witness. | Within 90 days of submission of rejoinder. | Within 6 months of filing petition. |
| Duration for delivering judgment in appeal | 6 months | 90 days | 3 months |
| Appeal hearing Court | High Court | District Court | Supreme Court |
| Dispute Settlement Mechanism | Except cases under Schedule 1 and 2 of Muluki Criminal Procedure Code, 2074 and cases relating to damage of public property can be compromised. | All cases are compromised and settled through mediation | Only court verdict clears the case |
| Duration of time for appeal | 70 days for state party criminal case and 30 days for civil and individual party criminal cases | 30 days | 35 days |
| Example of cases | Except cases under the jurisdiction of summary and special court procedure. | Cases related to Schedule 1 of Summary Procedure Act, 2028 | Cases related to Corruption, Bribery, Money Laundering, etc |
Difference between civil and criminal procedure
| Civil Procedure | Criminal Procedure |
| It is applied in civil cases. | It is applied in criminal cases. |
| Generally, Civil cases are individual party cases except few cases. | Crimes under Schedule 1 and 2 are State party cases and rest of the cases are individual party cases. |
| Procedure starts with filing of plaint. | Procedure starts with filing of FIR in case of state party case and with plaint in individual party cases. |
| Direct individual can file a plaint. | Government attorney files a charge sheet in the court in state party case and Individual files a plaint directly in court in individual party cases. |
| Court fee is charged. | No court fee is charged in state party cases. |
| Parties can appoint attorney to represent them. | Only in a limited condition and cases, attorney can be appointed. |
| Parties must present witness themselves. | Court calls witness itself. |
| Case dismissal by parties is possible | Case dismissal by parties is not possible in state party cases. |
| Parties are kept in Tarekh. | Government is not kept in Tarekh. |
| Compromise can be done. | No compromise can be done except in cheating and foreign employment cases. |
| There is Alternative Dispute Resolution. | There is no Alternative Dispute Resolution. |
| No provision of punishment. | Provision of punishment and compensation |
| It is remedy oriented | It is punishment oriented. |
| Liability can be transferred. | No transfer of liability. |
| No provision of pardon or remission. | Provision of pardon and remission |
| No provision of Sadhak | Provision of Sadhak |
Procedural Fairness
Fair trial is a trial that is conducted fairly, justly and with procedural regularity by an impartial judge and with procedural regularity by an impartial judge and in which the defendant is afforded his/her rights. A fair trial does not mean fair judgment but it means ‘getting a fair judgment through legal means or due process’. The principles of liberty, equality and security are underlying principles of fair trial which must be upheld in all stages of the case proceeding.
Pre-Trial Phase Rights
- Prohibition on arbitrary arrest and detention.
- Right to know the reason of arrest.
- Right to legal counsel.
- Right to prompt appearance before a judge to challenge the lawfulness of arrest or detention.
- Prohibition of torture and right to humane conditions during pre-trial detention.
- Prohibition on incommunicado detention.
Trial Phase Rights
- Equal access to, and equality before the courts.
- Right to a fair hearing and Public hearing.
- Right to competent, independent and impartial tribunal established by law.
- Right to presumption of innocence.
- Right to prompt notice of nature and cause of criminal charges.
- Right to adequate time and facilities for preparation of a defense.
- Right to a trial without undue delay.
- Right to defend oneself in person or through a legal counsel.
- Right to examine evidence and witness.
- Right to an interpreter.
- Right against self-incrimination.
- Right against retroactive application of criminal laws.
- Prohibition on double jeopardy.
Post-Trial Phase Rights
- Right to appeal.
- Right to compensation for miscarriage of justice.
Writ Procedure
A. Mandamus, Certiorari, Quo-Warranto and Prohibition
1. Filing of Writ Petition: Person who has substantial interest and meaningful relation on matters of public interest or concern can file a writ petition within reasonable time without any delay in High Court or Supreme Court. Rs 500 should be paid as fee and following matters should be disclosed in petition:
- Facts of the issue
- Reason for filing petition
- Jurisdiction of court
- What right of the petitioner has been violated and how
- Facts asserting absence of alternative remedy
- Remedy sought
- Basis for remedy
- Why writ order should be issued
2. Preliminary Hearing: A preliminary hearing is conducted by a Single bench in this hearing. Respondent is not given any notice and only applicant’s pleading is heard by the court. Applicant puts his/her facts and arguments trying to convince the court that which and what act of respondent has caused the violation of fundamental rights of the applicant.
3. Show Cause Order: If the Court is convinced that the issues raised in the petition are proper and legitimate, then it issues a show cause order in the name of respondent to present itself with a written reply in person or through a representative, within a certain time limit. The court may not issue a show cause order in the name of respondent if it is seen that the petitioner shares no relation with the issue raised or if maintaining individuals or institutions as respondents does not seem to be proper or practical.
4. Interim Order or Stay Order: If there is a condition that the final remedy will have no meaning unless the act of respondent is not stopped, the petitioner may request for issuance of stay order against the respondent. The court might issue interim order being based on the principle of ‘balance of convenience’.
5. Notice to the Respondent: Court issues the notice with the time limit of 15 days in the name of respondent. Time limit can be extended up to next 15 days in case of unforeseen circumstances.
6. Submission of Written Response: After receiving notice, the respondent must file written statement in the court within time limit. It must include facts and proofs so as to convince court tat there is no reason to issue writ order as per the claim of applicant.
7. Final Hearing and Order: After submission of written statement of the respondent, the court gives hearing date to both parties. After hearing the pleading of both the parties, analyzing writ petition, written statement and other documents along with other evidences, court will give its verdict. Court may issue the writ order as per the claim of applicant or quash the writ petition.
B. Habeas Corpus
1. Filing of Writ Petition: The person who is unlawfully detained or anyone on his/her behalf may file a writ petition before District Court, High Court or Supreme Court. No fee is charged for filing this writ petition. Matters to disclose in this petition are:
- By whom, since when, where, under what situation is the captive being held in detention?
- Whether captive is deprived of food and water or not?
- Has any Petition been previously filed in any other court regarding the detention? If yes, what was the result?
- Whether captive is physically/ mentally tortured?
2. Preliminary Order: If the detention of the prisoner is deemed illegal according to the petition, by fixing the hearing date, court shall ask for reasons why captive can’t be released and shall order the defense to present the captive in the court. Court may issue show cause order as per the necessity to the concerned body or individual. Whereas, if there is no relation between the respondent and petition, the Court may not issue show cause order. In the following conditions, court shall not order the captive to be present:
- If captive is physically/ mentally unfit
- If captive is geographically far.
- If by any other reasons, court didn’t find it important or reasonable to bring captive in the court.
3. Special Order: Before the final order, court can issue special order to the respondent (person, body or officer) to release the captive on the condition set by court or can order to transfer the captive from respondent’s custody to court’s custody.
4. Final Hearing: Final hearing takes place in the District Court, usually in a division bench, except in the case of a vacation. To assure the truth of the fact of petition, the court may issue search warrant on following conditions:
- If there is a ground to believe that the captive is detained inhumanely and is physically tortured.
- If the petitioner shows reasonable ground tat the captive can be transferred elsewhere with the intention of deceiving the Court.
Court can examine the evidences as per the necessity
5. Final Order: After hearing both the sides, the Court may issue an order to release the captive in following condition:
- If respondent does not show reason on the prescribed date.
- If the reason stated by respondent is unreasonable.
If the captive is illegally detained or detained with malafide intention.
Prepared by Sujina Dhonju.
