The District Attorney's Office, Kathmandu, has been embroiled in controversy after recommending not to prosecute Mahendra Gautam, who was arrested on charges of setting fire to Singha Durbar during the Gen-G demonstration on 24 Bhadra.

The District Attorney's Office, Kathmandu, had also written to the police on February 22, saying that there was no evidence or basis to prosecute him, saying that he would be released from custody on February 23.

Some legal experts have commented that it is wrong to decide not to prosecute a person who has confessed to burning down a government office when a case should be filed. Some have also supported the decision of the government attorney not to prosecute a case in the absence of evidence.

Ramhari Kafle, head of the District Attorney's Office, Kathmandu, said that they had recommended not to prosecute Gautam as they had not found any evidence other than the video claiming that he had returned after burning down Singha Dabar during the arrest and investigation.

'Only one video of Gautam was made public. "It could not be confirmed that he was involved based on other evidence," Kafle said. "Since it seems that the case cannot be prosecuted after receiving other evidence, this has been recommended to the High Government Attorney's Office, Patan, and a decision will be made by Wednesday."

Gautam himself uploaded the video of him burning Singha Durbar. The police arrested him after 5 months. The District Court, Kathmandu, issued a summons and detained him for investigation. Gautam had said that he had returned after setting fire to Singha Durbar. The police arrested Gautam from Chitwan on the basis of the video and initiated the investigation.

At the time of arresting Gautam, the police had obtained an arrest permit from the District Court, Kathmandu based on that video. At that time, the video was a basis for arrest and an arrest permit was obtained on that basis, but as no further evidence was found during the investigation, it was concluded that the case would not be prosecuted.

The Constitution gives the Attorney General the final decision on whether or not to prosecute a person on behalf of the Government of Nepal. The right to prosecute includes technical issues such as who to prosecute, what offenses to prosecute, and how much punishment to seek.

There have been disputes over the misuse of that right to prosecute some of the equally involved individuals and acquit others, prosecuting others for other offenses that carry lesser punishments even though they are involved in serious offenses, and forcibly prosecuting more cases than necessary.

Clause 2 of Article 158 of the Constitution gives the Attorney General the authority to prosecute cases. Since the Attorney General has delegated this authority to the District Government Attorney's Office, it is recommended that no case be prosecuted if no evidence is found. 'In cases in which the rights, interests or concerns of the Government of Nepal are vested, the Government of Nepal shall be represented by the Attorney General or a government attorney under him.' The Attorney General shall have the final decision on whether or not to prosecute a case on behalf of the Government of Nepal before any court or judicial body or authority, except as otherwise provided in this Constitution,’ the article states.

Based on this basis, on February 21, the District Attorney’s Office recommended to the High Government Attorney’s Office that there was no basis for filing an indictment against Gautam, and District Attorney Govinda Prasad Humagain also wrote a letter to the Kathmandu Police Complex asking for Gautam’s release. Gautam has been released after the letter from the Government Attorney’s Office.

The arrested Gautam was a resident of Khairhani Municipality-9, Chitwan and was currently residing in Anamnagar, Kathmandu Metropolitan City-29. He had said in the video, ‘We broke the gate of Singha Durbar and set fire to all offices, starting from the Ministry of Home Affairs.’

The Kathmandu District Court had also extended his remand for criminal nuisance. Chief of the High Government Attorney's Office, Patan, Ishwori Prasad Dhakal said that the file received from the District Government Attorney's Office not to prosecute the case is under study and a decision will be made by Wednesday after reviewing the grounds and reasons sent by the District Government Office.

The decision made by the District Government Attorney's Office will come into effect if it is ratified by the Attorney General's Office. If the Attorney General does not ratify the decision to prosecute the case, a case must be filed. The decision made by the District Government Attorney's Office is initially ratified by the High Government Attorney's Office and the decision is submitted to the Attorney General's Office. The decision is then ratified by the Deputy Attorney General in the Attorney General's Office and then to the Attorney General.

Section 285 of the Civil Code provides for the offense of criminal nuisance if damage is caused to public, government or private property. Those who commit such an offense are subject to imprisonment for up to four years and a fine of up to 40,000 rupees. In addition, there is a provision to pay compensation equal to the amount of damage caused.

Legal experts comment on selective prosecution

Legal experts have commented on selective prosecution in Gautam's case. Senior advocate Dinesh Tripathi claimed that it is wrong to charge someone and not charge someone. Stating that the court has the right to decide whether someone is guilty or not, he claimed that it is wrong to not take the charge sheet to court.

Senior advocate and former Attorney General Mukti Pradhan said that while there is sufficient evidence to prosecute, one cannot be acquitted, but one should not file a case with the sole intention of forcibly filing a case when there is no evidence. The government attorney should not only file a case but also go to the district court and present the grounds and evidence for why one should be found guilty, and a proper decision should be taken after looking at that. He said that in the case of the person accused of burning Singha Durbar, it can be said to be right or wrong only by looking at the grounds and evidence taken by the government attorney's office.

Former Supreme Court Justice Balram KC said that if one is involved in a serious crime, one cannot be acquitted. He argues that it would be better to file a case and have the matter decided by the court itself, given the increasing impunity everywhere. Since the accused himself admitted that he had set fire to the building, he suggests that it would be better to decide to file a case than not to file one.

He argues that the High Government Attorney's Office and the Attorney General's Office are still yet to make a decision, so it may be reconsidered. However, he argues that it is unfortunate that Senior Advocate Dinesh Tripathi has already filed a case against some of those arrested on charges of involvement in arson of government structures on Bhadra 24 and that the decision not to file a case against those arrested while their cases are pending.

The District Government Attorney's Office, Kathmandu, had earlier filed a charge sheet against Bamraj Kami of Humla, Bikash BK, and Jitendra BK of Jajarkot, who were arrested on charges of involvement in arson of government buildings, based on the photos and videos they had taken at the exhibition site. A case was registered against them in the Kathmandu District Court on Poush 3.

The court has sent everyone to remand for trial. However, Gautam, who was found to have a video of arson inside the burning Singha Durbar, has been released from custody without seeking approval from the higher authorities after the government prosecutor's office decided not to prosecute him.

The time limit for prosecuting criminal nuisance and weapons and ammunition offenses is only 6 months from the date of the incident. There are still 123 cases under investigation for these two offenses. These cases must be registered in court by February 24.