1-FIR, Arrest and Detention

FIR, Arrest and Detention
By: Deepika Acharya

Law of Crimes-II, KUSL
12th Jan, 2018
Legal Provisions
1. Government Cases Act, 2049
(s. 3,4,5,6,7,8,9,10,11,12,13,14,15,16)
Introduction
• The Government Cases Act, 2049 gives the
power to police to conduct investigations for
the crimes stipulated in Schedule 1.
• Altogether there are 31 crimes provided in
the schedule for which the police investigate
the case.
FIR
• The work of investigating officials (police-officers) begins
with the filing of complaint or FIR.
• FIR is called First Information Report. Section 3 of the Act
provides for this provision.
• The victim, victim’s relatives or anyone who is aware of the
crime can lodge the complaint at nearest police station to
where the offence has been perpetrated or likely to be
perpetrated.
• The state cases act requires the complaint to be lodged
with evidence and information about alleged perpetrators.
What should FIR Include?
• The FIR should include the area and date of
commission of the crime, the names of the actual
culprits, their actions, evidence and other descriptions
regarding the offense.
• The FIR should be submitted in the set format and if it
is done verbally, it’s the duty of officer in charge of
police station to record in the writing as narrated.
• The complaint should be booked in the police station.
After booking, if circumstances permit, investigating
officials must rush to the crime scene.
Refusal to deny?
• Any police authority refusing to register the
FIR permits the complainant to approach
higher police authority to the office of CDO.
Arrest
• While rushing the officials must be prepared for
counterattack. If the suspect can be chased they must
be chased.
• Police officials can go beyond the territorial
jurisdiction for investigation and later convey it.
• Before investigation the police officials must submit
the preliminary report to Government Attorney and
Attorney can give necessary directions to carry out the
investigation. Police personnel then investigate into
the case and collects evidence through it.
• The four general deeds shall be prepared as
accordingly to the crimes as an evidence.
• The police then take statement of accused in
front of government attorney and may do
possible searching if there are reasonable
grounds to believe.
• The suspects are arrested with the information
received by giving an arrest warrant.
• But in cases where there is chance that suspect may
escape, they can be arrested without giving warrant
(in cases like road accidents, drugs trafficking).
• Section 14(1) of the State Cases Act also states that an
arrestee should be told why they are being put under
arrest.
• Furthermore, clause 121 of the section on Court
Management of the Civil Code of Nepal prescribes
that the arresting officer to deliver a notion of the
grounds of arrest to the person before detention.
Detention
• After arrest the suspect must be presented before
court of law within 24 hours excluding the period of
journey. According to section 9(1) of the State Cases
Act, the interrogation of a suspect should be carried
out in the presence of a government attorney.
• The court can order maximum 25 days or the specific
days at once or time and again according to the
crime to detain the suspect for further investigation
to abstract the important information as s. (15) of
the State Cases Act.
• If it is illegal detention, then the writ of habeas
corpus can be filed by anyone having sufficient
interest or direct interest before the
prosecution starts.
Problems
• There occur different problems in following the Criminal Procedure. Some of them are:
1. It is the prime responsibility of the police to accept an FIR and lead the investigation. But
in reality the police regularly refuse to register complaints when the accused are high-
level state officials. ( Case of Maina Sunuwar i.e incident of 2004 but FIR accepted only in
2005)
2. The investigating police officers often force the accused to accept allegations and
fabricate documents through the making of these records.
3. Most arrests do not follow these legal provisions.
4. In obvious, contravention with article 21 (3) of the Constitution, which unequivocally

guarantees the right of detainees to consult and be defended by a legal practitioner of
choice, the detainee is not allowed to consult his/her lawyer before or during the
Interrogation.

CASE:
Maina Sunuwar Case
• On 19 January 2004, a group of 15 uniformed Royal Nepalese Army (RNA) soldiers
took Maina Sunuwar, 15, from her home in Kavrepalanchowk district. The next
day security forces denied having arrested Maina. Her mother’s inquires were
denied until April 2004, when she was informed at RNA headquarters in
Kathmandu that Maina had been killed. It required another year of sustained
international pressure before the army proceeded with an internal inquiry, which
mildly sentenced the perpetrators. It wasn’t until 13 November 2005, under
pressure from the Office of the UN High Commissioner for Human Rights, that the
police proceed with investigations. Her body was discovered illegally buried at the
Panchkal army camp. She had been tortured to death, but no further
investigations were conducted.
• Her family, with legal support from Advocacy Forum, lodged a writ of mandamus
at the Supreme Court on 10 January 2007 seeking an order to complete the
investigations. It required an additional three Supreme Court orders and another
year before police completed a charge sheet in February 2008. The case has spent
over four years in the legal system and to date only charges have been filed.
Conclusion and Recommendation
• Criminal Justice System has lots of flaws and it is not

sufficient enough to deter the crimes in the country.
• The legal framework should be strong and every
individual in the country should abide by legal
provisions. As to become specific in terms of
investigation, the investigating officials lack the
expertise in investigation process.
• Thus, changing the legal frameworks, providing
training and expertise to investigating officials and
fulfilling one’s rights and duties may curb the
problems occurring during investigation process.

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FIR, Arrest and Detention

By: Deepika Acharya

3. Most arrests do not follow these legal provisions.

4. In obvious, contravention with article 21 (3) of the Constitution, which unequivocally

• Criminal Justice System has lots of flaws and it is not

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