Police deployed from the Women, Children and Senior Citizens Service Center of the District Police Complex, Kathmandu, arrested a girl in Lainchaur at 7:30 pm on 18th Magh. She was 15 years and 6 months old. The police did not have a court-issued arrest warrant. Deputy Inspector of Police Kamal Thapa Chhetri issued an ‘urgent arrest warrant’ on the spot – ‘This warrant has been issued because you need to be arrested immediately in connection with the investigation into the crime of polygamy.’

Kantipur has analyzed the arrest process of 788 accused in 490 cases filed in three district courts during the month of Falgun.
The girl, who was under 16 years of age, had not even acquired citizenship. She could not travel abroad without her guardian’s permission. But for the police, she became a ‘dangerous’ accused – she could flee and destroy evidence.

Section 9(6) of the Criminal Procedure Code, 2074 BS, gives the police the extraordinary power to arrest someone without the permission of the court, but only if there is a solid basis for the accused to flee or destroy evidence. In regular (normal) situations, the police should arrest only after obtaining permission from the court. According to legal experts, this provision, which came into effect from 1 Bhadra 2075 BS, is a protection given to citizens so that the police cannot arrest them indiscriminately. This is only for exceptional circumstances, not as a rule. However, the girl's arrest was not an exception.

To understand the trend of such arrests, Kantipur has analyzed the arrest process of 788 accused in 490 cases filed in three district courts by the Government Attorney's Offices of Kathmandu, Lalitpur and Bhaktapur during the month of Falgun. Of these, 80 percent of the total arrests in the Valley were made with urgent warrants, meaning that four out of every five accused were arrested without a prior court order. Such arrests were 100 percent in cases of indecent assault, while the rate was 98 percent for minors under 18. This shows that the police have used the warrant excessively for minors.

These facts also show that the exception to the law has become the daily routine of the police. It took until the morning of Chaitra 14 for such a police practice to come into public debate. On that day, former Prime Minister KP Sharma Oli and former Home Minister Ramesh Lekhak were arrested from their residences in Bhaktapur without seeking court permission. Both were released on Chaitra 26 after the Supreme Court ordered them to be kept out of custody and the investigation to continue. Since their arrest, their lawyers had continuously raised the question, ‘Was there a possibility that they would escape?’ Was there a risk of destroying evidence?’

These questions raised after the arrest of Oli and the writer have not been raised in the case of the 15-year-old girl who was arrested earlier or the 628 people arrested in the Valley in Falgun. Criminal law expert advocate Subash Acharya says, ‘The police will arrest them just because they have a complaint, and then they are walking on the way to court saying that I have arrested them. There is a provision in the law that says that this should not be done.’

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Reverse practice of the law

Out of the 44 minors arrested in the three districts in Falgun, only one was arrested on a warrant issued after a court order. In Falgun 2082, it appears that more than 80 percent (628 people) of the 788 accused in 490 cases registered in court by the government prosecutor’s offices in the three districts of the Valley were arrested on urgent arrest warrants. 100 percent in cases like drugs and indecent behavior, up to 97 percent in cases like motorcycle, mobile, gas stove theft . The 15-year-old girl arrested from Lainchaur on charges of polygamy is not the only minor to be arrested using such a warrant . Of the 44 minors arrested in the three districts in the month of Falgun, only one was arrested using a warrant issued after a court order . They are those arrested for cases like simple theft, accidental mutilation, and marijuana consumption .

Only two percent of urgent warrants have been issued in banking crimes (mainly check bounce), and 13 percent in money laundering . Such a warrant has not been used even once in human trafficking cases . Of the 17 accused in the rape case, three were arrested using regular warrants .

It appears that financial crime suspects with large amounts of money in bank accounts, established foreign contacts and the ability to destroy digital evidence, or sex crimes and human trafficking suspects who may threaten victims, are being arrested with regular court warrants, while those accused of indecent behavior, marijuana use, and mobile phone theft are being arrested with urgent warrants. This raises the question of on what basis the police decide who to arrest immediately with urgent warrants and who to wait for court orders.

This trend of excessive use of urgent warrants in arrests is not limited to the Kathmandu Valley. A research report titled ‘Legal Arrangements and Practices Related to Arrest’ published by the National Judicial Institute this year states that about 70 percent of arrests are made on the basis of urgent warrants, looking at data from Mugu, Bhojpur, Surkhet, Kathmandu and Dhanusha. ‘Urgent warrants, which should be applied in special situations as an exception, are being used instead of the regular arrangement of arresting with court permission,’ the report concludes.

‘We decided to investigate this issue after the perception that urgent warrants are being widely misused,’ says Sanjeev Rai, the research coordinator and director of the foundation. ‘Initially, we thought that geography, access to transport, and the condition of police manpower would make a difference. But whether it is the Kathmandu Valley or the Himalayas, the hills or the districts of the inner Madhesh, it was found that they are being used almost the same everywhere.’

Janak Prasad Ghimire, the chief public prosecutor of Lalitpur, admits that urgent warrants are being used more than regular ones. ‘There are more urgent warrants now than regular ones. Only if someone runs away or evidence is lost or the crime continues, they are caught with an urgent warrant,’ he said. ‘But, in our country, the police do not even tell us what the situation was. They catch them in a hurry.’

Criminal law expert Rajit Bhakta Pradhananga says that there is a practice of issuing such warrants in cases where it is not possible to immediately prosecute a case in indecent behavior, but an arrest is necessary. ‘Our practice is that we cannot immediately file a case for indecent behavior, but if we need to take some people under control, the police immediately issue an urgent arrest warrant and arrest them,’ he says.

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What kind of people are arrested with an urgent warrant?

Let’s look at the circumstances surrounding the arrest of the girl accused of polygamy. Darshana Hamal, the wife of Neerak Shahi, who married her, had filed a complaint with the police on 23 Magh. As mentioned in the case file registered in the court, the District Police Complex, Women, Children and Senior Citizens Service Center, then gave a verbal order to Police Inspector Saraswati Karki to search for Shahi and the girl who was said to have married him. Then on 28 Magh, Karki’s team arrested Shahi and the girl from Lainchaur. Even after receiving the complaint and going on a search, the police did not consider it necessary to seek permission from the court for five days.

The court allowed the police to detain them for four days for the first time and investigate them. The statements were completed in those four days. However, the police sought permission to detain them for 10 days for the second time, saying that they could not ‘understand’ other people they thought should understand. The Kathmandu District Court, without considering whether or not they needed to be detained, granted permission to detain them for the period requested by the police. In the case file filed in the Bhaktapur Juvenile Court on 15 Falgun, the girl’s name was kept confidential, but in many places the name was not changed, which makes it clear that the police were not sensitive about revealing the girl’s identity.

Similarly, let’s look at another example from Lalitpur. Raju Sunar and Dhane Tamang, who work as idol makers in Lubhu, were suddenly arrested in the crowded Gwarko bus stop on the afternoon of 23 Poush. They were accused of ‘walking suspiciously’ by staring at the place where bags and purses were kept for sale on the sidewalk. However, the plainclothes police were arrested on charges of ‘using abusive language and threatening’. According to their statements included in the charge sheet, both of them were returning from appearing at the Baneshwor Police Office on the same day for another case. In other words, those who were given the urgent warrant on the grounds of ‘risk of flight’ had themselves appeared on the same day when called by the police.

Police Assistant Inspector Balkumari Karki did not even mention the reason for the urgent warrant given to Sunar, let alone the crime for which he was arrested. The computer-typed warrant reads, ‘As you are required to be arrested immediately in the course of investigation of the crime..., this arrest warrant has been issued in accordance with Schedule 9 (related to Sub-section (6) of Section 9) of the Criminal Procedure (Code) Act, 2074.’

Last month, all 37 people in 19 cases of similar indecent behavior in all three districts of the valley were arrested through urgent warrants.

Similarly, Pujan Putuwar was arrested at Balaju Bypass, Ward No. 16, Kathmandu Metropolitan City, on December 28 at 4 pm. He had been working as a painter for five years and used to get tired from the daily work of scraping walls, climbing and descending stairs with buckets of paint, and changing brushes. He used to fall asleep easily at night. Moreover, he said that after his father's death a year and a half ago and a strained relationship with his wife, he started taking 'Diazepam'. This pill, known as an insomnia medicine, is sold as a drug on the street.

That day, Putuwar reached Nepaltar and bought seven sets of ampoules (diazepam, buprenorphine and promethazine) from his acquaintance Sonam Tamang for Rs 5,600. On his way back, a police team saw him walking in a 'suspicious' manner on the bypass road. The ampoules were found on him during a search.

Then the police handed him a paper - an urgent arrest warrant. However, it did not mention the reason for issuing the urgent arrest warrant and which of the conditions prescribed by law was present.

Police Inspector Dev Singh Bhandari of Balaju Police Circle has not disclosed the basis for the application filed in the Kathmandu District Court for the approval of this warrant. Even when the court extended the time, it did not find a reason for it. After that, Putuwar was taken into custody.

In the court, he said, ‘It was a mistake to use drugs. I want to be forgiven for the last time.’

Kathmandu District Court Judge Ishwori Prasad Bhandari pronounced the verdict on 13 Falgun, ‘One month and fifteen days in prison.’ However, by the time such a verdict was reached, Putuwar had already spent 75 days in custody, 30 days more than the prescribed sentence.

In another case in Lalitpur, a warrant was issued to arrest Bikash Limbu and Suman Lama, who were accused of stealing a packet of Nescafe worth Rs 712.

At first glance, these cases may seem to be a few exceptions. However, another trend is clear when looking at the statistics of cases registered in the three districts of the valley in Falgun. It seems that 90 percent of Dalit accused received necessary warrants, while 87 percent of Tharu accused, 81 percent of Janajati accused and 72 percent of Khas-Arya accused received necessary warrants. The difference in getting necessary warrants between Dalit and Khas-Arya accused is about 20 percentage points.

Senior advocate Krishna Prasad Sapkota, an expert in criminal law, says that the police are finding loopholes in the law and playing with it rather than following it. ‘This is not a good thing. If there is a problem in the law, it should be changed, otherwise it should be implemented,’ he said, ‘The rule of law is about enforcing the law. If the dignity of the law is not followed, chaos will result.’

The rate of arresting people with necessary warrants by the police is more than 80 percent in both Kathmandu and Bhaktapur districts of the valley, while in Lalitpur it is about 70 percent. Of the minors arrested in Falgun, 98 percent were arrested with an urgent warrant. The average age of a person arrested with an urgent warrant is about 29 years, while the average age of a person who receives a warrant according to a court order is 38 years. That is, the police have used urgent warrants to arrest people under the age of 30.

Retired Deputy Attorney General Gopal Prasad Rijal says that urgent warrants are being issued even when they should not be issued. ‘It seems that urgent warrants are being misused.’ It seems that urgent warrants are being issued in many cases even when arrests can only be made with the permission of the court,’ he said. ‘Not all cases require detention. It is not necessary to arrest immediately after a complaint is filed.’

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‘Legacy’ of the Civil Code

The provision of urgent arrest warrants was first included in the Criminal Procedure Code. Before the implementation of this code on Bhadra 1, 2075, the police would arrest people suspected of being involved in a crime and then present them in court within 24 hours.

Advocate Acharya sees the root of this problem in the Muluki Ain. ‘Our police have long been accustomed to the practice of first arresting people and only then taking them to court,’ he said. ‘Despite the implementation of the code, there has been a stark difference in the legal system and its practice.’

Rai, director of the National Judicial Institute, also says that due to the long rule of the Muluki Ain, the police are not ready to leave the established ‘legacy’ and work according to the new law.

The Supreme Court had questioned such actions of the police in 2076. In a habeas corpus case, the Supreme Court had told the police, ‘It cannot be considered appropriate to issue arrest warrants simultaneously without even disclosing the reasonable reason for issuing the warrant and merely showing that the formalities have been completed.’

Police spokesperson Deputy Inspector General of Police (DIG) Avinarayan Kafle claimed that urgent arrest warrants are issued only in the circumstances prescribed by law. ‘Even in the case of a person arrested by issuing an urgent warrant, we necessarily seek support from the court within 24 hours,’ he said. ‘If we had kept him in custody without such support, it would have been said that the urgent warrant was misused.’

He said that the open border with India and the anger of the person/community who has been wronged also require the police to arrest the accused on time and sometimes have to issue urgent warrants in such circumstances. ‘The first duty of the police is to enforce the law,’ he said, ‘If we enforce the law on others, we ourselves will abide by the law 100 percent.’

The Attorney General’s Office had also acknowledged this problem two years ago. The Attorney General’s Office, which is the government’s chief legal advisor and has the role of directing the police in criminal investigations, has pointed out that there are many problems in the arrest process in the ‘Criminal Justice Administration Reform Study and Suggestion Report 2081’. ‘The practice of issuing arrest warrants immediately after the complaint is registered has led to a situation where a person is arrested and is forced to stay in detention for a few days unnecessarily, even in cases where a false complaint has been filed,’ the report said. ‘A person has to go to detention without due cause, and the honor and reputation of the person has been hurt.’ Similarly, to prevent such a situation, the office has also suggested making a legal provision to inform the accused person to appear in person before issuing a warrant.

Initially, there was no such provision in Indian law, but later the Supreme Court there directed to make a law to give a person the opportunity to appear in person in the case filed by Arnesh Kumar against the Bihar state government. Stating that the necessary law was made after the Supreme Court's directive, the report of the Attorney General's Office states, 'It seems that a provision should be made for the police to give notice of presence in connection with the investigation of crimes other than serious crimes.'

In the month of Falgun, 628 people were arrested in three districts of the Valley alone with urgent warrants. If people are arrested at this rate in a year, more than seven and a half thousand people will be imprisoned in the Valley alone without the prior approval of the court in a year. Advocate Acharya says, 'This will improve only if the court starts rejecting arrests and bringing them with urgent warrants except in the cases specified in the law.'