A STUDY ON THE FORFEITURE OF THE PROPERTY IN NEPALESE CRIMINAL JUSTICE SYSTEM
Introduction
Rush G. in his book ‘Dictionary of Criminal
Justice’ defines criminal punishment as an miserable action conducted by the
state (especially the court) for any action of an individual which is against
the law of land. [1]
Similarly, Packer H. has stated the elements of punishment as:
a. Punishment
gives rise to certain sorrows or uncomfortable situation.
b. Punishment
is attracted upon the violation of law.
c. Punishment
is attracted only when the criminal offence is done.
d. Punishment
is done in accordance to the values of criminal law.
In this way, we can summarize that the system of punishment in
criminal offence is a reflection of the basic values of criminal law. But,
there is an obvious necessity that the punishment inflicted upon the offender
must reflect the existing social condition. The cruel punishment systems which
were favorable in ancient times have now gradually come across to the
reformative system where crimes are not taken as result of personal traits
rather it is considered as a social phenomenon. Hence, if we look at the
changes in the punishment system, the harsh punishment which existed in the
early times have been decreased and are more focused to the reformation of the
criminal attitude of the person and efforts have been started to made to create
such a condition where the offender after fulfilling a certain time in state
confinement, returns to the society and attain ordinary livelihood.
But, in this course, certain punishment practices are still seen
where the offender of certain criminal offences are still given harsh
punishment. A serious example can be seen as the punishment system of
forfeiture of property of the offender in the offence of homicide. This
practice still is legally provided in Nepalese Legal System which is more
likely to create a situation of economic subordination of the offender after
fulfilling the term of imprisonment to assimilate with the society.
Objectives
The objectives
of the research are as follows:
a.
To study about the general concept of forfeiture of property in
criminal offences with special focus to homicide.
b.
To study on the existing legal provisions regarding forfeiture of
property in Muluki Ain 2020 B.S.
c.
To critically analyze the existing provision of forfeiture of
property in the offence of homicide.
Methodology
The researcher has entirely adopted the secondary sources of
authority to conduct the research. It consists of the literature review, case
law review as well as the report reviews relevant to the subject of study. The
materials obtained from the Internet sources regarding the particular topic are
also included.
Organization of Study
The paper is organized into three chapters where the Chapter 1
deals about the general background of the study, its objectives, limitations
and methodology of study. Chapter 2 consists of the concept of forfeiture of
property, its classification, existing legal provisions of forfeiture of
property in Nepalese Legal System. Chapter 3 consists of the Analysis,
Conclusion and Bibliography.
Meaning of Forfeiture of
property
Forfeiture is a broad term that can be used to describe any loss of property
without compensation. The involuntary
relinquishment of money or property without compensation as a consequence of a
breach or nonperformance of some legal obligation or the commission of a crime.
The surrender by an owner of his or her entire interest in real property,
mandated by law as a punishment for illegal conduct or Negligence.
Article 1(c) of the Council of Europe
Convention on Laundering, Search, Seizure and Forfeiture of the Proceeds from
Crime and on the Financing of Terrorism (2005) defines the term forfeiture as a
measure ordered by a court following proceedings in relation to a criminal
offence or criminal offenses resulting in the final deprivation of property.
Forfeiture can be distinguished from
seizure or freezing, where in a person is temporarily prohibited from
transferring, converting, disposing of, or moving his or her property or other
“economic advantages”. As person whose assets have been confiscated has
probably already had his or her assets seized. Seizure usually occurs during
the investigation of a criminal offense and after an application to the court
by prosecutor.
Forfeiture of Property has occurred in the United States during wartime, ever
since the revolutionary war. [2]As a means of financing
hostilities against England. During the Civil War, both the North and the South
confiscated property. World War I and World War II witnessed a revival of
property seizure as an instrument of policy.
Classification of forfeiture of property
There are many models for forfeiture in different states, as
mentioned above. There are also many different approaches to what should be
confiscated by the courts. As stated in the legislative guide to the United
Nations Convention against Transnational Organized Crime and the Protocols
Thereto[3],
some states opt for a property based system of forfeiture; others opt for a
value-based system, while others combine both approaches. Under the first
model, property that represents the proceeds of crime is confiscated . under
the second model, the value of the proceeds of crime is assessed and money of
equivalent value is confiscated. This approach is called a value forfeiture
order. The model adopted in the MCC combines both approaches. It targets the
proceeds of crime first and then property of corresponding value. It also
allows, at the court’s discretion, the payment of money instead of the
forfeiture of property.
3. Legal provisions of forfeiture
of property in Nepal
3.1.In Homicide
Chapter 10 on Homicide under Muluki Ain 2020 B.S. states that in
cases where a person kills another person by hitting, stabbing or poking (Hani, Ropi, Ghochi) with a dangerous
weapon with or without the edge, all the persons who have used the weapon shall
be considered murderers. Everyone (in such a case) shall be liable to the
punishment of imprisonment for life, along with confiscation of the entire property.
3.2.Procedures for forfeiture of property
i.
No. 186 of Court Management
Judgment in a case involving punishment of
imprisonment for life with forfeiture of entire property or that of
imprisonment for life or a case required to be referred/submitted for
confirmation in accordance with the laws in force shall be referred or
submitted by the office for confirmation and such judgment shall be as
confirmed by the competent court.
ii. Number 7 on Punishment
If the law provides that punishment of
imprisonment for life with forfeiture of entire property shall be imposed, the
offender shall be sentenced to imprisonment for life and then forfeiture of his
or her entire property shall be made in accordance with law.
iii. Number 23A on Punishment
If, in making
forfeiture or forfeiture of entire property of the offender in the course of
recovering such punishment or government amount.
iv. Number 24
If the judgment
debtor dies and a death indenture is executed in presence of five local
gentlepersons including a member of the concerned Village Development Committee
or Municipality, the record of imprisonment, fine and Five percent fee shall be
obliterated.
v. Number 25:
Person who is liable for
paying fine to the Government should be kept in prison if s/he is not able to
pay the government fine and such fine must not be taken from forfeiting her/his
property.
Vi. Number 26.
In forfeiting the property in consideration
for a fine and imprisonment in accordance with law, punishment shall be
recovered only from the partition share of the offender to the extent
recoverable.
vii. Number 27.
In making forfeiture of entire property, the
partition shares of the other coparceners who have not obtained their partition
shares shall be set aside, and the property of the offender only shall be confiscated.
viii. Number 30.
While also
preparing an inventory of or auction selling a property in the course of
effecting forfeiture or forfeiture, it shall be done in witness also of the Talukdar and Jimidar in that place, if they are available, if they are not
available, a member or representative of the concerned Village Development
Committee or Municipality and at least
Two gentlepersons
ix. Number 33.
After a judgment is
made holding the forfeiture of entire property or recovery of government amount
in question, no forfeiture, forfeiture, auction sale shall be made until the time-limit
for appeal is expired or the appeal judgment is made.
x. Number 35.
If, in executing
forfeiture or forfeiture, any old book that is worth being held in a government
library is found, a submission shall be made to the Government of Nepal for a
reply whether such a book has to be held in a government library or not.
4. Analysis
It is important to
point out that forfeiture of assets is extraordinarily complicated and requires
a lot of time, money, and specialized personnel to investigate and determine
the value of proceeds of crime and what property of equivalent value may be
seized. In early times, states used to direct its function in policing
activities i.e., maintaining the order and peace in the society hence the
sources for the income generation were less. In that situation, forfeiting the
property of the offender convicted for heinous crimes used to be the good
income source of the state. Besides, in heinous offences, the offenders were
usually given the death penalty as punishment, so the intention of the state to
become the guardian of the property of such offenders was also acceptable.
However , the
situation have completely changed where the state has taken the responsibility
of controlling the economic activities within the state and also in Nepal,
death penalty has been abolished. So in this situation, there is no point on
the previous stand of government in forfeiting the property of the offender
convicted under homicide. The imprisonment of life has been 20 years which guarantees
the survival of the offender even after fulfilling the sentence in the prison.
So in this aspect, state must rethink about the economic entrepreneurship of
that person who completes her/his term in the prison.
Number 14 on the
Chapter of Punishment under Muluki Ain provides that a person whose entire
property is attached dies, such punishment of forfeiture of entire property
cannot be waived unless and until that person is acquitted of the offence. This
provision stands clearly against the general principle of criminal law i.e.
crime dies with the criminal.
Conclusion
The study does not infer that forfeiture of property in criminal
offence is irrational. Newer practices in the forfeiting the property have been
implemented in the offence of trafficking of narcotic drugs. This is rational
in the sense that such property is forfeited under law which the offender has
earned by transacting the narcotic drugs. Nepalese provision regarding the
trafficking of narcotic drugs attracts forfeiture of property which involves
those which are used in trafficking of narcotic drugs. But in homicide, the
involvement of the issue of property cannot be justified.
In this way, it can be said that the provision of forfeiture of
property in homicide under Nepalese law cannot be said as an irrational
provision from the beginning as it should be seen contextually. But in the
present time, it can be said that such provision has not been revised according
to the changing notion of criminal justice. The Criminal Draft Code[4]
under its chapter of punishment and compensation has not recommended for the
scope of forfeiture of property in any offences on the humanitarian ground.[5]So,
there is an alarming need of reforming the existing practice of forfeiting the
property in those offences like homicide where the issue of property is not
included.
Bibliography
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3. Sharma,
Lokendra , Criminology, Pairabi Prakashan, 2067, 66
4. Shrestha,
Gyaindra Bahadur, Muluki Ain, Pairabi Prakashan, Baghbazar, Kathmandu, 2063
5. Shrestha,
Gyaindra Bahadur, Ain Sangraha, Khanda 1, Pairabi Prakashan, Baghbazar,
Kathmandu, 2063
[1]
Lokendra Sharma, Criminology,
Pairabi Prakashan, 2067, 66
[3]
Page 289
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