Overturning the decision of a subordinate court, the Patan High Court on Thursday directed the government to release former home minister Bal Krishna Khand on bail arguing that existing documents don’t prove his direct involvement in the fake Bhutanese refugee scam.

The Nepali Congress leader will be free from judicial custody once he posts the bail amount of Rs3 million. A single bench of judge Krishna Ram Koirala ruled that the district court’s decision to send Khand into judicial custody was unjustified.

Khand’s case was sent to the single bench after a division bench on December 1 couldn't give a unanimous verdict on whether to continue his judicial custody or release him on bail. A division bench of judges Janak Pandey and Prakash Kharel failed to come to a unanimous decision as the two judges had different opinions.

While Judge Pandey was in favour of releasing him on Rs3 million bail, Kharel stood for upholding the Kathmandu District Court’s decision. “The single bench issued the order in line with Judge Pandey’s opinion,” said Tirtha Raj Bhattarai, the high court spokesperson.

Koirala’s bench has given two reasons for releasing Khand on bail. First, Keshab Dulal, a prime accused in the scam, has categorically denied having given money to Khand. Similarly, a letter written by former home secretary Tek Narayan Pandey to Narendra KC, about the financial dealings in the scam, doesn’t mention Khand. KC, personal assistant to Khand when he was the home minister, was released after posting Rs1 million in bail as per a high court order earlier this month.

After a days-long hearing, the Kathmandu District Court on June 16 had sent 16 people, including Khand and former deputy prime minister Top Bahadur Rayamajhi, to judicial custody. The district court had issued the order to dispatch 16 of the 18 defendants in the refugee scam to judicial custody.

The accused had challenged the decision in the Patan High Court. After the hearing, the court on December 1 upheld the June 16 decision of the Kathmandu District Court to send nine out of 16 people, including Rayamajhi, to judicial custody in the fake Bhutanese refugee case.

The division bench, however, had ordered the release of others on bail.

Besides Rayamajhi, the bench refused to release Indrajit Rai, adviser to the then home minister Ram Bahadur Thapa, former home secretary Tek Narayan Pandey, Dulal, and former lawmaker Aang Tawa Sherpa of Nepali Congress. Also, middlemen involved in the case—Sanu Bhandari, Sandesh Sharma, Govinda Kumar Chaudhary and Sagar Rai—were denied bail.

The court ordered authorities to release Sandeep Rayamajhi, son of former deputy prime minister Rayamajhi, on a bail of Rs3 million, and Bhutanese refugee leader Tek Nath Rizal, Ram Sharan KC and Hari Bhakta Maharjan on bails of Rs1.5 million each.

Likewise, bail amounts for Narendra KC and Shamsher Miya were fixed at Rs1 million each. On the other hand, Laxmi Maharjan, Ashish Budhathoki, Tanka Kumar Gurung and Keshav Tuladhar have been released without bail.

On May 24, the District Attorney’s Office, Kathmandu had filed criminal cases at the District Court against 30 individuals accused in the scam.

They have been charged with four types of crimes—treason, organised crime, fraud and forgery. The accused have been charge-sheeted for collecting Rs 288.17 million from 115 victims—ranging from Rs150,000 to Rs4.8 million each—by promising to send them to the US as Bhutanese refugees.

In 2019, the then government led by KP Sharma Oli had formed a task force under then joint secretary Bal Krishna Panthi to recommend ways to manage Bhutanese refugees who remained in Nepal after the end of the third-country resettlement programme.

The taskforce submitted a report including 429 Bhutanese refugees who had been left behind. Later, the racketeers, in collusion with some top officials, prepared another report and added hundreds of other people to the list of refugees.

The final hearing on the scam involving dealing of millions of rupees is yet to start in Kathmandu District Court.

Legal experts say bail is a discretion of the court. “Let us not rush into judgement. Releasing Khand on bail doesn’t mean he has gotten a clean cheat,” senior advocate Dinesh Tripathi, chair of the Constitutional Lawyers' Forum, told the Post. “The court is yet to decide whether he is guilty.”