After the District Attorney Office of Kathmandu on Monday returned the investigation report on document forgery relating to the Lalita Niwas land grab scam to the police recommending further investigation, questions were raised if the move was aimed at stopping prosecution of those accused in the scam.

The Central Investigation Bureau (CIB) of Nepal Police had submitted the document of investigation to the government attorney office on January 6 for starting legal proceedings against the accused—more than 300 people including senior ex-government officials.

The CIB had submitted the investigation report to the government attorney with the aim of registering a case at the court by January 11 citing the statute of limitations for filing the case in such cases as per the Criminal (Code) Act-2017.

But the District Attorney Office returned the police document recommending more investigations while also making it clear that the land grab had taken place before the Criminal (Code) Act-2017 came into force and the then [now defunct] General Code-2020 BS under which the crime fell, does not have the provision of statute of limitations, so the case can be filed anytime.

Here’s what you need to know:

Provisions in two laws

As per Section 283 of the Criminal (Code) Act-2017, the statute of limitations in cases of forgery of government documents is two years from the date of learning of the crime.

The CIB, which has been investigating the Lalita Niwas land grab scam for two years, had submitted its investigation report to the Kathmandu District Attorney’s Office a few days before the deadline set by the new law expired. Superintendent of Police Shyam Kumar Mahato, also the spokesperson for the CIB, told the Post last week, “As per the Criminal Code 2017, we have to file criminal cases against them (those allegedly involved in scam) by January 11 because of the deadline set by the law.”

But the Kathmandu District Attorney Office argued that the Criminal (Code) Act-2017 is not applicable in the Lalita Niwas land grab case because the alleged forgery took place before this law came into effect.

“The forgery took place before May 2012 but the Criminal (Code) Act-2017’ came into effect from August 17, 2018,” said Ganga Prasad Poudel, chief of the District Government Attorney Office. “So, the case should be filed based on the provision of General Code-2020BS.”

The general code does not have provision of statutory limitations on the forgery of government documents.

Number 18 under the ‘Forged Document or Forgery’ chapter of the General Code states, “If a suit on any matter other than on the matter of forgery or fraud (Keerte or Jalsaji) of a document bearing government seal or of any other document held in a government office or on any matter of verbal forgery or saying or writing any false designation or of dismissal of employees (Parapajani) by saying or writing so is not filed within six months of its knowledge, from the date of cause of action, the suit shall not be entertained.”

Poudel said the CIB has submitted an investigation report by quoting the provision of the General Code. “We have to file a case in the court of law based on the same provision,” he added.

Why is General Code applicable instead of Criminal Code-2017?

As per the Act on Amendment, Integration, Adjustment and Scrapping of Some Nepal Laws-2017, the provision of forgery of the General Code is applicable if the act of forgery had taken place when the General Code was active, according to Poudel.

Section 39 (1) of this Act scrapped the General Code-2020BS. But Section 39 (2) has made a provision about the fate of the cases filed based on the General Code. “This section of the law has made it clear that statute of limitations should be applied based on the General Code,” said Poudel.

Section 39 (2E) of the Act states, “The statute of limitations in any case which has been registered or will be registered will be based on which law applies or will apply.”

Poudel said that as per Number 36 of the chapter on Court Proceeding in the General Code, a lawsuit can be filed anytime in the case where no statute of limitation has been determined.

A senior official of the Office of Attorney General told the Post that the provision of General Code is applicable in this case, citing the provision of the Act on Amendment, Integration, Adjustment and Scrapping of Some Nepal Laws-2017.

Why should Criminal Code-2017 be applied?

Former Attorney General Ramesh Badal, however, claims that Criminal Code-2017 applies in Lalita Niwas case instead of the General Code.

“The provision of the Act on Amendment, Integration, Adjustment and Scrapping of Some Nepal Laws-2017 is applicable only to the cases which have been registered at the court and are under consideration of the court,” he argued.

He wondered why the police continued to say until a few days ago that the statute of limitations was January 11 if it does not apply.

“The District Attorney Office just sought an excuse not to file a criminal case against those involved in the scam. The government could not say directly it does not want to prosecute them expecting a public backlash,” said Badal, who served as attorney general during the tenure of former prime minister KP Sharma Oli.

What does the CIB say?

CIB Spokesperon Mahato said even though the District Attorney Office returned the investigation report directing the police to conduct further investigation, it does not mean that investigation was weak.

“We have conducted an investigation under direct monitoring and supervision of a government lawyer,” he said. But after the report was returned, Mahato said that the CIB would address the issues raised by the District Attorney Office.

Questions were also raised as to why the CIB took so long until the end of the statute of limitations provided in the Criminal Code Act-2017. But Mahato said they needed to study the entire history of the land spanning over 91 years, hence the delay.