The Supreme Court has issued an interim order not to arrest Sher Bahadur Deuba and his wife Arju Rana Deuba.

The Supreme Court has concluded that only the Special Court has the jurisdiction to hear cases of crimes investigated by the Money Laundering Investigation Department. The Supreme Court's order states that the arrest warrant issued by the Kathmandu District Court on Chaitra 24 has been automatically deactivated.

A bench of Justices Mahesh Sharma Poudel and Nityanand Pandey issued the interim order on Monday after hearing the arguments of the writ petitioner and the government.

The Supreme Court has mainly taken three grounds to order not to arrest the Deuba couple. The Supreme Court has said that the method and format of the arrest warrant are not suitable as the first ground.

'National Criminal Procedure Code' Sub-rule (4) of the regulation provides that if an application is made pursuant to sub-rule (1) and the circumstances appear reasonable, the court may grant permission to issue an arrest warrant in the format as per Schedule 2,’ the order states, ‘However, it does not appear that the method and format specified in these legal provisions were followed while requesting and granting permission to issue an arrest warrant from the Money Laundering Investigation Department and the Kathmandu District Court.’   In such a situation, the order states that the procedure of the prevailing law was not followed in requesting and granting permission to issue an arrest warrant. 

As a second ground, it has been taken that the grounds and reasons were not disclosed while requesting permission to issue an arrest warrant from the Money Laundering Investigation Department and granting permission accordingly from the Kathmandu District Court. 

‘In Clause (c) of Sub-section (1) of Section 16 of the Prevention of Money Laundering Act, 2064, it appears that if a person is accused of committing an offence related to money laundering and financial investment in terrorist activities or is involved in the offence or there is reasonable grounds to suspect that he/she is absconding or may lose or destroy any evidence or may obstruct or adversely affect the investigation proceedings, he/she shall be arrested and detained in accordance with the prevailing law,’ the order states. ‘When arresting someone, it is necessary and mandatory for the investigating agency and the court hearing the case to comply with these legal provisions. However, as mentioned in the above case, the grounds and reasons were not disclosed when requesting permission to issue an arrest warrant from the Money Laundering Investigation Department and granting permission accordingly from the Kathmandu District Court.’

Although there is no dispute that the Supreme Court can lawfully arrest for the investigation of an offence subject to the prevailing law, the order states that such arrest should not be made arbitrarily. 

‘There can be no dispute that such arrests should be made in accordance with the methods and procedures established by the prevailing law,’ the order states. ‘In that case, it is necessary for the investigating agency and the court to always be aware of this matter.’

And as a third basis, permission from the special court has been taken as not having been obtained.  

‘The ordinance published in the Nepal Gazette on April 18 to amend the Money Laundering Prevention Act, 2064, added a restrictive clause to Sub-section (2) of Section 22 of the Act, stating that if the investigation conducted by the department shows that a case will be prosecuted, the government prosecutor will file a case in the Special Court,’ the order said. ‘It is not apparent from the investigation file that the Money Laundering Investigation Department requested the Special Court to issue an arrest warrant to the petitioner, stating the grounds and reasons, and that permission was granted accordingly by the Special Court.’