Even after the Supreme Court upheld the High Court’s order to remand him in judicial custody for trial in a cooperative fraud case, Rastriya Swatantra Party President Rabi Lamichhane has again filed a petition at the Rupandehi District Court seeking release from custody. He has also submitted a bank guarantee to the court, requesting to be freed by paying the claimed amount determined by the court.

There is no practice of releasing a person in custody unless they are proven innocent, yet Lamichhane is waiting for an unusual stroke of fortune, observers say.

Lamichhane, a suspended lawmaker, has been in custody at Rupandehi District Prison over charges of embezzlement from Supreme Savings and Credit Cooperative in Butwal and involvement in organised crime.

On Monday, he registered a fresh petition at the district court demanding release. Along with the appeal, he submitted a Prabhu Bank guarantee worth Rs27.48 million, covering the amount attributed to him in the cooperative fraud and organised crime case.

According to Padam Aryal, the court’s information officer, Lamichhane’s petition has entered the process. He said Judge Dilliram Sharma Aryal’s bench on Monday had ordered that the defendants be informed. The court administration scheduled a hearing for Tuesday, assigning it to Judge Pralhad Kumar Yogi’s bench. Yogi is the same judge who had initially ordered Lamichhane’s release on bail of Rs10 million in January. Yogi, therefore, recused himself from the case, and a new hearing was scheduled for Wednesday.

On Wednesday, the hearing fell under Judge Dipendra Thapa Magar’s bench. However, after the bench was assigned, Lamichhane’s lawyer Rajendra Thapa requested a postponement, citing illness.

“Lamichhane’s own lawyer sent a request for adjournment, stating he was unwell,” information officer Aryal said.

Court officials have questioned why the party requesting the hearing then sought to postpone it. They suspect the defence may be waiting for a bench they deem favourable. “Such practices have been observed before, where parties try to test the court’s integrity,” court administration officials said.

The Rupandehi District Court has ten judges in total. Apart from Yogi, who issued the initial bail order, any other bench could have heard the case. “But the postponement was probably an attempt to find a favourable judge,” said a court official. “This is one of the tactics parties use, but the court’s ruling does not change because of it.”

Meanwhile, lawyer Thapa said he requested the postponement because he was unwell and due to insufficient time to study the case thoroughly. “I was indeed ill, but the main reason was that I hadn’t had enough time to prepare,” he said. “We will present our arguments at the next hearing.”

Along with his petition, Lamichhane submitted documents citing a 21 December 2023 joint bench order of the Supreme Court in a fraud and organised crime case involving Geeta Sharma and Bhuvan Maharjan, in which the Government of Nepal was the plaintiff, and a habeas corpus case involving Binod Thapa Magar, where the court precedent indicated that reconciliation is possible in cooperative fraud criminal cases.

“In accordance with existing laws, I have already submitted a bank guarantee equal to the amount claimed against me in the cooperative fraud case. Based on this, I request to be released from custody by settling the amount and to be allowed to face the organised crime charges—which I assert are irrelevant and baseless—on a general hearing date without detention, as provided under Sections 68, 69, and 71 of the National Criminal Procedure Act, 2017,” Lamichhane wrote in his petition.

He also stated that the amount deposited via bank guarantee was provided by well-wishing relatives. According to the petition, Shankar Prasad Shrestha provided Rs15 million, Ramananda Ghimire Rs9.48 million, and Manohar Pradhan Rs3 million.

In the petition, Lamichhane has requested release under Section 71 of the Criminal Procedure Code, 2017, using a bank guarantee as per Section 68.

Section 68 states: Except in the case referred to in Section 67, the court may ask for a bail/bond, guarantee or bank guarantee from the accused if a reasonable ground exists for proving the charge against the accused. Provided that the bank guarantee shall be unconditional and renewable at such times as may be specified by the court.

Section 71(1) states that in the course of examining evidence, the court may, regardless of the stage of the proceedings and considering the circumstances of the case, remand the accused in detention pursuant to Section 67 or require bail, bond, guarantee, or bank guarantee from the accused pursuant to Section 68. The fact that the accused was not previously remanded in detention or that bail, bond, guarantee, or bank guarantee was not earlier demanded shall not prevent the court from doing so subsequently.

Likewise, Section 71 (2) mentions that if the court has reasonable grounds to believe that an accused remanded in detention under Section 67 or 68 is not guilty of the offence, it may, at any stage of the proceedings, hear the matter and order the release of the accused from detention.

Senior Advocate Ram Narayan Bidari argued that Section 71 does not apply in Lamichhane’s case. “This provision applies when new evidence emerges during proceedings that requires detention or release,” he said. “In Rabi’s case, there has been no such new evidence, so how can this law be invoked?”

According to Bidari, an informal discussion within the Supreme Court’s full bench concluded that this provision should not be used, and it has never been applied. “I don’t see the possibility of further interpretation from the court. Rabi has filed the petition just for show,” he said.

Senior Advocate Surendra Bhandari said that while the law allows for such petitions, the provision has not been interpreted. “That’s why it has become an interesting subject even for law students,” he said. “We must wait to see how the court interprets it.”

Bhandari argued that although Lamichhane has sought release under Section 71, paying the claimed amount essentially means admitting guilt. He claimed Lamichhane has provided evidence against himself. “The law does not envision release merely upon payment of the claimed amount,” he said. “There can also be imprisonment and fines, which are determined only after the verdict.”

Bhandari warned that if Lamichhane is released after paying the claim, other inmates will also start demanding release on the same grounds. He also said that since the High Court had overturned the District Court’s bail order and the Supreme Court had upheld the High Court’s decision, the District Court is unlikely to order his release based on a different interpretation.

Lamichhane and three others are accused of transferring Rs109.93 million from the Butwal-based Supreme Cooperative to Gorkha Media Network Pvt Ltd and misappropriating it. Lamichhane has paid the portion attributed to him.

The Rupandehi District Court had ordered his release on bail of Rs10 million on January 26. The Office of the Government Attorney appealed to the High Court, seeking his detention. Lamichhane also went to the Butwal bench of the Tulsipur High Court, seeking to be placed on general date instead of paying high bail.

On April 4, a joint bench of High Court Judges Ramesh Dhakal and Swikriti Parajuli overturned the District Court’s bail order and ordered Lamichhane’s detention. He was arrested in Kathmandu immediately afterwards. Lamichhane then appealed to the Supreme Court, which on May 22 upheld the High Court’s decision.

Meanwhile, Rupandehi Prison has stated that no discrimination has been made against Lamichhane during his stay. “We have provided him with the same facilities as other inmates,” the prison administration said in a statement on Friday. For security reasons, he has been given a separate room and allowed visits and communication facilities upon request.