Sentencing Mechanism Under Nepalese Criminal Justice System

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Sentencing Mechanism Under Nepalese Criminal Justice System
Thesis · July 2022

DOI: 10.13140/RG.2.2.33683.55841
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Contents
CHAPTER-I 1
INTRODUCTION 1
1.1 General Background 1
1.2 Statement of Problem 3
1.3 Objectives of the Study 3
1.4 Significance of the Study 4
1.5 Scope of the Study 4
1.6 Methodology 4
1.7 Review of Literatures 4
1.8 Organization of the Study 6
CHAPTER- II 8
CONCEPTUAL FRAMEWORK ON SENTENCING 8
2.1 Concept of Sentencing 8
2.2 Approaches of Sentencing 11
2.2.1 Punitive Approach 11
2.2.1.1 Theory of Retribution 12
2.2.1.2 Theory of Deterrence 12
2.2.1.3 Theory of Incapacitation 13
2.2.2 Therapeutic Approach 14
2.2.2.1 Theory of Rehabilitation/Reformation 17
2.2.2.2 Theory of Restoration 18
2.2.3 Preventive Approach 18
2.3 Sentencing Models 19
2.4 Principles of Sentence Determination 20
2.5 Sentencing and Human Rights 22
CHAPTER-III 28
i
LEGAL FRAMEWORK ON SENTENCING MECHANISM UNDER NEPALESE
CRIMINAL JUSTICE SYSTEM 28
3.1Constitutional Provisions 28
3.2Legislative Provisions 30
3.2.1 Criminal Offences (Sentencing and Execution) Act, 2017 32
3.2.2 National Penal Code, 2074 B.S 59
CHAPTER-IV 69
ROLE OF NEPALESE JUDICIARY IN THE DEVELOPMENT OF EFFECTIVE

SENTENCING MECHANISM 69
CHAPTER- V 73
FINDINGS, CONCLUSION, RECOMMENDATIONS 73
5.1 Findings 73
5.2 Conclusion 75
5.3 Recommendations 76
BIBLIOGRAPHY 77
Constitution and Laws 77
Books 77
Website 79
ii
CHAPTER-I
INTRODUCTION
1.1 General Background
Crime is a universal phenomenon. It has always been an integral part of civilization.

Crime cannot be eradicated altogether from society however it can definitely be cur-
tailed. Crime, the intentional commission of an act which is deemed socially harmful
or dangerous affects peace and order in the society. It is the utmost duty of the state to
maintain peace, security and tranquility in the society. Ensuring peace, security and
justice from the state is not only the desire of every citizen but also a matter of rights
of the citizens. Development and upliftment of individuals, society and nation is pos-
sible only in a just and safe environment. Therefore, the state institutes a criminal jus-
tice system to maintain law and order in the society as well as to control undesirable
activities against the society and nation.
The sole purpose of criminal justice administration is to guarantee peace and security
in the society by controlling criminal activities. For this, the state has to create a cred-
ible environment in which the perpetrators are punished, and the creation of such a
credible environment is possible only through the effectiveness of criminal justice
administration. The prime concern of criminal law is to create criminal liability in
case of breaking of norms under criminal law. 1The enforcement of criminal law is one
of the core functions of every state. The state has responsibility to prevent crime, in-
vestigate the accused involved in crime, punish the guilty in accordance with the pre-
vailing law and provide justice to the victim with compensation. The enforcement of
criminal law i.e to punish the offender and provide justice to the victims is guided by
the criminal justice system of a country. The fundamental objective of the criminal
justice system can be categorized into two folds: conviction and sentencing. The first
function is to determine the innocence or guilt of the accused person and the second
function is to determine an appropriate sanction out of the many prescribed by law in
a particular situation. Sentencing is the last and executing stage that imposes the de-
termined quantum of punishment upon the convict and therefore, it is seen as a crucial
1
ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 1, New York: Oxford University
Press, (2006).
1
stage in the criminal justice administration. Punishment refers to the legal conse-
quences of violating a criminal law, which are often unpleasant. Generally speaking,
it is always stipulated in the statutory legislation. The concept of punishment refers to
the relationship between wrongdoing and state imposed sanctions. Essentially, the
concept of punishment is concerned with the basis upon which the evils imposed by
the state on individuals can be justified. An effective sentencing system should deter-
mine the appropriate structure of sanctions and the factors relevant to fitting the sen-
tence to the criminal. After a criminal conviction has been determined by the compe-
tent court, the sentence refers to the appropriate sanction. The assessment of guilt or
innocence and the determination of the proper punishment for the convicted offender,
if guilt is proven, are the two main concerns of the entire criminal adjudication pro-
cess. The sentencing procedure in this course may involve a large number of people,
ranging from lawmakers to a probation officer. Lawmakers create sentencing regula-
tions; the probation officer creates the report that the judge could consider, and judges
render the judgments. The criminal justice system as a whole can influence or con-
tribute to the sentencing process. Investigation authorities, parole board, prosecutors,
prison administration officials, and victims play their respective role during the sen-
tencing process.
Nepal has entered into a new era in the development of the criminal justice system.
Article 20 of the Constitution of Nepal ensures the rights of offenders in relation to
criminal justice, which includes their rights during the process of conviction and sen-
tencing. In the criminal justice system of every country, investigation, prosecution,
adjudication, and sentencing are the most important steps, and the same applies equal-
ly in Nepal. The National Penal Code, 2017, National Criminal Procedure Code, 2017
and the Criminal Offence (Sentencing and Execution) Act, 2017 have come into force
from August 17, 2018 and these laws have repealed the general law Muluki Ain. In
this context, enactment of a specific act relating to sentencing is particularly new
practice in the Nepalese criminal justice system.
The sentencing process is the most contentious aspect of the criminal justice system.
Depending on the complexity, it can be the simplest or the most complex process. It is
in the sentencing phase that a defined quantum of penalty is imposed upon an offend-
er and therefore, the society witnesses this segment. Sentencing contributes to societal
2
satisfaction toward the criminal justice system. It is essential that the sentencing pro-
cess be free, fair, and credible not only to its subjects (the victim and defendant), but
also to society as a whole in order to reflect its inherent characteristics.
1.2 Statement of Problem
Within the criminal justice system the efficacy of punishment is measured through the
process of sentencing. In order to properly decide how and how much to punish, it
must be, firstly, established on what basis punishment is justified and why we are
punishing. 2 Therefore, punishment and sentencing are inextricably linked to each oth-
er.3Sentencing is one of the most controversial processes in the criminal justice sys-
tem. Therefore, the researcher will try to find out the answers to the following ques-
tions through this dissertation:
1. Whether the existing laws and policies relating to sentencing in Nepal are adequate
and time-relevant?
2. Whether the existing laws and policies relating to sentencing in Nepal are implement-
ed effectively to achieve the ends of justice?
3. Whether the Nepalese judiciary has played a role in the development of an effective
sentencing system in Nepal?
1.3 Objectives of the Study
1. To identify and analyze the laws and policies relating to sentencing in Nepal.
2. To identify the approaches and models of sentencing adopted in Nepalese Criminal

Justice System.
3. To determine the challenges in the implementation of sentencing laws in Nepal.
4. To analyze the strengths and weaknesses of the sentencing mechanism in Nepal.
5. To identify the role of the judiciary in the effectiveness of sentencing in Nepal.
2
MIRKO BAGARIC, PUNISHMENT AND SENTENCING: A RATIONAL APPROACH 4, Caven-
dish Publishing Limited (2001).
3
ALLEN MANSON, THE LAW OF SENTENCING 3, IRWIN Law Inc. (2001).
3
1.4 Significance of the Study
Sentencing is the final and executing stage of proceeding of any criminal case which
motivates the researcher to find out the legal process, analyze, determine the chal-
lenges, problems and provide suggestions in this field. This study is expected to make
specific contributions in the area of criminal procedure of government-plaintiff crimi-
nal cases to the students of law, lawyers, judges and investigation officers as well as
for those who are willing to work in this field.
1.5 Scope of the Study
The researcher has focused merely on existing laws, precedents, international stand-
ards and policies related with sentencing. The research dissertation is apprehensive
with sentencing laws and policies of Nepal. This study attempts to explain a brief
overview about criminal procedure of Nepal and the process of sentence determina-
tion to the convicts of criminal offenses.
1.6 Methodology
This research dissertation adopts doctrinal as methods of research to collect infor-

mation and data about the subject matter. This paper is prepared with the application
of the principles and methods of doctrinal research. It has followed analytical, histori-
cal, and descriptive and comparative methods based on necessity where it requires.
The researcher has collected information from both the primary as well as secondary
sources. Primary sources include legislation, precedent or case laws and secondary
sources of data from articles, journals, reports.
The researcher has collected these sources of information from the Central Library of
Tribhuwan University, Central law Library, National Law College Library and other
various libraries and websites.
1.7 Review of Literatures
Various literatures have been consulted throughout this research to make this research
authentic and further convincing. A wide array of text books, articles, journals, maga-
zines, thesis and literature written by eminent scholars and published by various au-
4
thorities have been reviewed for this study. This study has obtained much information
from various websites as well. Likewise, constitutional provisions, legal provisions
and judicial decisions of the Supreme Court of Nepal are taken as the major sources
of this study.
The literatures reviewed for the purpose of this research are as follows:
Gyaindrabahadur Shrestha in his book Muluki Aparadh (Samhita), Ain 2074,
Muluki Faujdari Karyavidhi (Samhita), Ain, 2074 and Faujdari Kasur (Sajaya
Nirdhaaran Tatha Karyanwoyan) Ain, 2074, Mul Dafaa Sahit Ek Tippani has
analyzed the provisions of newly implemented substantive and procedural criminal
laws of Nepal. The writer has elaborated the interpretation of the provisions relating
to sentencing section-wise along with the reference to court cases. However, the prob-
lems and challenges in the implementation of these laws and procedures relating to
sentencing have not been discussed.
In the book, Faujdaari Kaanoonko Ruprekha written by Surendra Bhandari, the

historical development of Nepalese Criminal Law has been discussed. Though the
analysis of Nepalese Criminal Law and its development is done with reference to the
interpretations of the Supreme Court in some of the disputed issues, the book lacks
explicit analysis of sentencing mechanism in Nepal.
Theories of punishment and sentencing policy of the court in Nepal have been elabo-
rated in the book Criminology Penology written by Madhav Pd. Acharya / Ganesh
Bdr. Bhattarai. The authors have attempted to describe various types of punishments
recognized by Nepalese penal law and sentencing policy adopted by the MulukiAin as
well as various models of sentencing adopted around the world.
In the book Sajaaya Nirdhaaran Ra Kaaryaanoyan , written by Mahesh Sharma

Poudel the concept of sentencing , models of sentencing , Nepalese sentencing laws,
sentencing principle applied by Nepal have been discussed however the challenges in
the implementation of these laws has not been discussed.
In the book entitled Sentencing and Criminal Justice, (4th ed.) written by Andrew
Ashworth the conceptual part of sentencing, purpose of sentencing in criminal justice
, sentencing policy, models of sentencing has been analyzed. The sentencing policy of
the United Kingdom has also been explained explicitly.
5
Ahmad Siddique in his book Criminology & Penology, (6thed.) has discussed about
punishment and various theories of punishment. In the therapeutic approach, Mr.
Siddique has stressed on the importance of both prison reforms and parole. Under-
standably he has given probation the most important place in this approach.
In the book Criminology & Penology with Victimology written by Professor N.V.
Paranjape, the author has discussed sentencing mechanisms as well as various types
of punishment. However, dealing with various types of punishment the author hasn’t
touched on the reformative approach of punishment rather the author basically focus-
es on retribution and deterrence.
In the book entitled The Principles of Criminal Law-I written by Dr.T. Padma and
K.P.C. Rao the authors have discussed the sentencing policy and various theories re-
lating to sentencing.
Joel Samaha (University of Minnesota) in his book CRIMINAL JUSTICE has

discussed the concept of sentencing, history of sentencing, importance of sentencing
as well as nature of sentencing.
In the book entitled SMITH AND HOGAN’S CRIMINAL LAW (13th ed.) written
by David Ormerod, the author has discussed crime and punishment , wrongdoing
and punishment and elaborated the purposes of sentencing with reference to the
breaking of criminal laws.
In the book entitled Criminal Justice: An Introduction to the Criminal Justice

System in England and Wales (2nded.) by Davies, Croall and Tyrer, the authors
have explained about aims of sentencing, types of sentence, sentencing procedure,
factors influencing sentencing decisions and structuring sentencing decisions.
1.8 Organization of the Study
To make it systematic and scientific, this study has been divided into five chapters
and other necessary parts in every chapter. The first chapter is the introductory part
which has incorporated general background, statement of problems, objective of the
study, significance of the study, limitation of the study, methodology and organization
of the study. The second chapter covers the concept, meaning, theories, models and
6
approaches of sentencing. Third chapter is about the legal framework concerning the
sentencing laws and policies. The fourth chapter deals with the role of Nepalese judi-
ciary in the development of effective sentencing mechanism in Nepal. Fifth chapter is
the final chapter that covers findings of the research, conclusions drawn as well as
necessary recommendations.
7
CHAPTER- II
CONCEPTUAL FRAMEWORK ON SENTENCING
2.1 Concept of Sentencing
Crime is a moral wrong undesirable to the society that confers upon society a duty to
punish and set up institutions to facilitate punishment. A person who pleads guilty to
or is convicted of a crime normally faces punishment. 4 Punishment is an integral part
of every criminal justice system. Criminal justice is fundamentally concerned with
defining crime, identifying the perpetrators of crime, prosecuting the convicts, prov-
ing the prosecution charge by the application of relevant legal standards and applying
proper and appropriate punishment thereto. The main purpose of punishment is to
prevent crime, build a safe society, enforce the law and administer justice. 5 Punish-
ment is an imposition of a burden or hardship. Punishment is usually experienced as
unpleasant, often as painful though we are nowadays more likely to conceive of it as a
deprivation (of certain rights) than as the infliction of pain. 6 Punishment is the act of
inflicting physical, mental or financial torture or suffering on a person who commits a
crime.7
Punishment under law is the authorized imposition of deprivations of freedom or pri-

vacy or other goods to which the person otherwise has a right, or the imposition of
special burdens because the person has been found guilty of some criminal violation,
typically involving harm to the innocent. 8 The unpleasant imposition may include a
fine, penalty, or confinement, or be the removal or denial of something pleasant or
desirable. The individual may be a person, or even an animal. The authority may be
either a group or a single person, and punishment may be carried out formally under a
system of law or informally in other kinds of social settings such as within a family. 9
Punishment is the imposition of monetary fines, forced incarceration, bodily suffer-
4
MARK R. REIFF, PUNISHMENT, COMPENSATION and LAW 77 (1st ed.) Cambridge University
Press, Cambridge (2005).
5
RAJIT BHAKTA PRADHANANGA & SOMAKANTA BHANDARI, FAUJDAARI KAANOONKO
SAAMANYA PARICHAYA 182, Pairavi Book House (2075 B.S).
6
JOHN KLEINIG, ETHICS AND CRIMINAL JUSTICE: AN INTRODUCTION 196 (1st ed.), Cam-
bridge University Press, Cambridge, (2008).
7
Shanti B.K v GON, NKP 2061 vol 6, decision no.7399.
8
Available at https://infogalactic.com/info/Punishment, accessed on 5/30/2022.
9
Id.
8
ing, and in extreme cases – death.10 Punishment, in its most general sense, refers to an
undesirable change in a person’s well-being that is seen to result from or is deliberate-
ly imposed as a response to some act or omission committed by that person or by oth-
ers for whom he is deemed responsible. 11
The efficacy of punishment is measured through the process of sentencing under the
elaborate system of substantive and procedural laws within criminal justice. Sentenc-
ing is the system of law through which offenders are punished. Sentencing is defined
as the formal pronouncement of the judgment and the punishment to the defendant
following his/her conviction of crime. When the objective of criminal law is to deter-
mine whether the accused person is guilty of the offence s/he is charged with and to
prescribe suitable punishment.12Sentencing is one of several stages at which decisions
are taken in a criminal process that begins with decisions such as reporting a crime or
arresting a suspect, and goes through to decisions to release a prisoner on parole or to
revoke a community order13.Sentencing is the imposition of a punishment on an of-
fender following conviction for a criminal offense. 14
Sentencing is a key function of the criminal justice process and involves many and
different and often conflicting considerations. 15 The aim or purpose of sentencing is
the objective that the sentencer or policy maker is seeking to achieve. When a sen-
tence is to be imposed, the first decision to be made should be to the object to be
achieved by it.16According to John Champion, the goals of sentencing are 17:
● to promote respect for the law,
10
DAVID BOONIN, THE PROBLEMS OF PUNISHMENT 3 (1st ed.) Cambridge University Press,
(2008).
11
MARK R. REIFF, PUNISHMENT, COMPENSATION and LAW 77, (1st ed.), Cambridge Universi-
ty Press, Cambridge (2005).
12
AHAMAD SIDDIQUE, CRIMINOLOGY, PROBLEM AND PERSPECTIVE 318 (4 thed.) Eastern
Book Company,(1997).
13
ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 22 (4th ed.) Cambridge Uni-
versity Press, Cambridge, (2005).
14
DEAN JOHN CHAMPION, SENTENCING: A REFERENCE HANDBOOK, CONTEMPORARY
WORLD ISSUES 2, ABC-CLIO, Santa Barbara, California, (2007).
15
DAVIES, CROALL & TYRER, CRIMINAL JUSTICE: A INTRODUCTION TO CRIMINAL JUS-
TICE SYSTEM IN ENGLAND AND WALES, 236 (2nd ed.) Longman; (January 1,1998).
16
DAVID A. THOMAS, PRINCIPLES OF SENTENCING: THE SENTENCING POLICY OF THE
COURT OF APPEAL CRIMINAL DIVISION 455 and 503, Heinemann (1970).
17
9
● to reflect the seriousness of the offense,
● to provide just punishment for the offense,
● to deter the defendant from future criminal conduct,
● to protect the public from the convicted offender, and
● to provide the convicted offender with educational or vocational training, or

other rehabilitative assistance.
The purpose of sentencing is different from the purpose of the whole criminal justice
system. Sentencing is one segment of the criminal justice system. Andrew Ashworth
writes: 'It is important to distinguish the aims of the criminal justice system from the
aims of sentencing, which merely relate to one element. The system encompasses a
whole series of stages and decisions, from the initial investigation of crime, through
the various pre-trial processes, the provisions of the criminal law, the trial, the forms
of punishment, and then post-sentence decisions concerned with, for example, super-
vision, release from custody and recall procedures. It would hardly be possible to
formulate a single meaningful ‘aim of the criminal justice system’ which applied to
every stage.18According to John Champion the purposes of sentencing are: 19
(1) Retribution,
(2) Deterrence and Prevention,
(3) Just deserts and Justice,
(4) Incapacitation and Control, and
(5) Rehabilitation and Reintegration.
18
ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 67 (4th ed.) Cambridge Uni-
versity Press, Cambridge, (2005).
19
10
2.2 Approaches of Sentencing
The sentencing process involves the determination of the appropriate action both in
qualitative and quantitative terms20.The significance of the sentencing process is to be
appreciated in the context of individualization in the administration of criminal jus-
tice. Individualization means that instead of fitting the offence, the criminal sanction
should fit the offender. The punishment should be adjusted in such manner to each
particular offence that for every part of the mischief there may be a motive to restrain
the offender from giving birth to it 21.Various approaches and various theories within
those approaches have been developed to justify punishment or to provide a theoreti-
cal basis for it. Three different approaches have been developed as a result of chang-
ing attitude of society in the area of punishment 22.
1. Punitive Approach
2. Therapeutic Approach
3. Preventive Approach
2.2.1 Punitive Approach
Punitive approach is the ancient and traditional approach of punishment. It examines

the past conduct of the offender and put a moral blame on the offender since he/she
has committed a wrong. Under this approach offenders are portrayed as dangerous
and cannot be reformed, therefore, they must be punished. The purpose of the punitive
approach is to punish wrongdoers for societal protection. This approach implies that
punishment is inevitable in the case of crime. Punitive approaches consider that if the
wrongdoer is not punished, it contributes to the increase in law breaking. Punishment
is the key component of this approach.
Under the punitive approach of punishment major three theories of punishment name-
ly; retributive theory, deterrent theory and incapacitation theory have developed.
20
AHAMAD SIDDIQUE, CRIMINOLOGY, PROBLEM AND PERSPECTIVE 377 (6 thed.) Eastern
Book Company, (2009).
21
Punishment for stealing a smaller amount of money should be less than that for a relatively higher
sum.
22
AHAMAD SIDDIQUE, CRIMINOLOGY, PROBLEMS AND PERSPECTIVES 110 (5th
ed.)Eastern Book Company, Lalbag, Lucknow (2005).
11
2.2.1.1 Theory of Retribution
This is one of the oldest forms of punishment. The notion of retributory punishment
seems to be based on a sense of revenge. According to this theory an offender is pun-
ished for the purpose of vengeance and expiation. This theory believes that the of-
fenders should be punished in the same way as the offence was committed- essentially
the idea of “an eye for an eye.” It is based on the principle that wrongdoers should be
punished because they deserve it 23. The retributionists believe that it gives the victims
of crime, or society as a whole, a sense of satisfaction knowing a criminal received
the appropriate level of punishment for the crime committed. This theory does not be-
lieve that criminals can be reformed and considers that punishment is only for the
sake of punishing.24 According to this theory, the scales of justice are balanced only
after the offender suffers equally just as the victim suffers. At present, this belief is
considered inhumane and against the principles of human rights. For this reason, the
state does not adopt this kind of penal policy.
2.2.1.2 Theory of Deterrence
The theory of deterrence is based on the idea that the incidence of crime will be re-
duced because of people’s fear or apprehension of the punishment they may receive if
they offend. Deterrence regards punishment not as an end in itself but as a means to
amend; the end being the prevention of the crime which actual or threatened punish-
ment presumably achieves. The concept of deterrence theory can be traced back to the
works of philosophers such as Thomas Hobbes, Cessare Beccaria and Jeremy Ben-
tham. To “deter” means to stop or to discourage. The deterrence theory of punishment
suggests that punishment is awarded to stop crime. Deterrence aims to prevent future
crime and can focus on specific and general deterrence. Specific deterrence deals
with making an individual less likely to commit a future crime because of fear of get-
ting a similar or worse punishment. Deterrence theorists believe that if punishment is
severe, certain, and swift, a rational person will measure the gains and losses before
engaging in crime and will be deterred from violating the law if the loss is greater
23
MICHAEL CAVADINO & JAMES DIGNAN, PENAL SYSTEMS: A COMPARATIVE AP-
PROACH 32, Sage Publications Ltd, (2005).
24
MADHAV PRASAD ACHARYA, APARAADHSHASTRA 105, Ratna Pustak Bhandar: Kathmandu
(2067 B.S).
12
25
than gain. Deterrence is the sole purpose of threats of punishment. Basically there
are two type of deterrence: general deterrence and specific deterrence. General deter-
rence refers to the impact on members of the public who become less likely to commit
a crime after learning of the punishment another person experienced. Punishment can
protect society by deterring potential offenders, by preventing the actual offender
from committing further offences and by reforming and turning him into a law abid-
ing citizen.26 The theory of deterrence can be linked to the sociological school of ju-
risprudence. The sociological school establishes a relationship between society and
law. It states law to be a social phenomenon with a direct and/or indirect connection
to society. One of the main objectives of the deterrence theory is to create an example
for the individuals in the society by creating fear of punishment. You are being pun-
ished not because you have stolen a sheep, but in order that others may not steal sheep
in future.27
2.2.1.3 Theory of Incapacitation
This is another old approach that is still used today. Incapacitation simply refers to a
person's exclusion from society. This can include incarceration in a prison, house ar-
rest, and, in the worst-case scenario, execution. The issue with this method, according
to many, is that it ignores rehabilitation and recidivism, both of which tend to be high
in communities that practice incapacitation. The incapacitation theory of punishment
advocates that offenders should be stopped from committing subsequent crimes by
removing them from society (temporarily or permanently) or by some other technique
that limits their physical ability to reoffend in some way. The most prevalent means of
incapacitating offenders is incarceration; but, other, more severe kinds of punishment,
such as capital punishment, are also used. The overall goal of incapacitation is to keep
the community's most dangerous or prolific offenders from reoffending.
25
Available at https://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf accessed on April
21 2022.
26
P.J. FITZERLAND, SALMOND ON JURISPRUDENCE 94 (12thed.) Sweet and Maxwell, London
(1966).
27
Dr. Hari Bansha Tripathi, Sajaya Nirdaaran Sambandhi Niti: Siddanta Abhyaas ra Sudhaarko
Aawashyakta, NATIONAL JUDICIAL ACADEMY JOURNAL (2067 B.S) at 17.
13
2.2.2 Therapeutic Approach
Its root is totally different than previous approach; it deals to the criminal, as a vic-
tim of the circumstances, sick person, requires treatment and a person with psycho-
social disease. It believes that the correction, rehabilitation and reformation are pos-
sible and needed for the criminal. Criminal may be re-socialized and rehabilitated as
law-abiding people. This approach is based on rationalist thinking, natural rights and
humanitarian ground. It deals about the prison reform, probation, parole, juvenile
justice, other social institutions and crime prevention, community services, open
prison system and other concerned rehabilitative or treatment measures for crimi-
nals. Main focus is centralized on the criminal rather than crime. The basic idea of
this approach is not to inflict pain or suffering to criminals but to take the criminal to
make law-abiding citizens. It is known as the rehabilitative or reformative approach
of punishment. Reformative theory of punishment falls under it as an idea at an op-
erational level.
Though this approach is emerged as an alternative to the traditional approach of

punishment/sentencing but it is also not free from the criticism. It has some limita-
tions. It is not applicable for all criminals. Habitual and recidivist criminals never
utilize such rehabilitative program. Some incorrigible criminals are never reformed.
They can use negatively the alternative measures for their criminal aims. There is
little room to utilize this approach independently. This approach may contribute
proper combination with the punitive approach.
Criminal punishment involves the coercive restraint of individuals by the state, usual-
ly through prison confinement and hard treatment. It is therefore a practice in need of
moral justification. The two most common arguments of justification focus either on
the retributive nature of punishment or on its deterrent effect.28 According to the re-
tributive view, offenders deserve punishment for what they have done. According to
the deterrence theory, punishment is justified to the extent that it deters further crime
either by the offender or by others who fear a similar fate. The retributive justification
turns on that which has already occurred, namely the violation of law by the individu-
28
Available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3863&context=lcp ac-
cessed on April 23, 2022.
14
al to be punished. The deterrence theory looks to the future consequences of punish-
ment as the basis for justification29.
Both arguments rest on a common assumption about the ability of individuals to con-
trol their actions. Retributive and deterrence theorists agree that unless criminals have
control over what they do, that is, unless their actions are freely chosen, they are not
fully responsible. If they are not responsible for their crimes, criminals cannot be said
to deserve punishment, and the retributive theory is without foundation. Furthermore,
punishment can have a deterrent effect only on those who are able to conform their
behavior to that which is legally required or permissible. Threat of punishment cannot
deter those who are unable to refrain from violating the law. Thus the deterrence ar-
gument also depends on a condition of responsibility 30. In his article, Responsibility
and Excuse in Law and Medicine: A Utilitarian Perspective, Seymour Halleck argues
that criminals vary in the degree to which they are in fact able to control their ac-
tions31. He contends that because they are not fully responsible for what they have
done, the standard retributive and deterrence arguments are inadequate to justify the
practice of criminal punishment. Furthermore, since degrees of responsibility vary, he
regards it as unjust to treat all criminals as if they were equal in this regard. Thus Hal-
leck questions the justice of subjecting offenders to determinate sentencing 32. Halleck
suggests that an adequate response to the problem of criminal wrongdoing can be de-
termined without presupposing the problematic notion of responsibility if a medical
model replaces the current penal model33. Accordingly, he believes that offenders
should be regarded as medically ill, not morally evil, and criminality should be
viewed "as a condition that can be treated." 34
Halleck argues, however, that there is a punitive, as well as therapeutic, element in-
volved in the involuntary treatment of criminal offenders. He says that when offend-
ers are sentenced to programs such as those he recommends, "some punishment is in-
29
MARTIN P. GOLDING, PHILOSOPHY OF LAW 69-105 (2nd ed.), Prentice Hall (1975).
30
Id.
31
Seymour L. Halleck, Responsibility and Excuse in Law and Medicine: A Utilitarian Prespective ,
1986, Available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3863&context=lcp
32
Id. at 140-42.
33
Id. at 128.
34
Id. at 143.
15
tended and past criminal behavior is not excused” 35. This view is not obviously com-
patible with the view that criminals are not responsible for their violations of law. If
they are not excused for the wrong they have done, then they must be blameworthy.
Halleck suggests that they are blameworthy when he argues that non-therapeutic pun-
ishment requires a non-utilitarian (or retributive) justification36. This admission is in-
consistent with his stated adherence to a utilitarian perspective and with his claim that
the notion of responsibility should be abandoned in our social response to crime.
Because Halleck admits that there is a non-therapeutic element to the treatment re-
ceived by offenders, the propriety of his medical model is called into question. This
admission also leaves unjustified this punitive aspect of the therapeutic response to
crime. The medical model is, at best, appropriate only with reference to the treatment
of criminals. Thus, the punishment of criminals can be justified only by its therapeutic
effect. Halleck might believe that the punitive aspect of the punishment received by
offenders ultimately serves some therapeutic end; perhaps he thinks it helps teach
them that they are responsible (in the sense of culpable) for their actions. However, it
is not clear how it could be therapeutically helpful to blame criminals for past actions
over which they presumably had no control. In the cases of therapeutic punishment
described by Halleck, the punishment is used in response to negative behavior dis-
played by patients while in treatment; it is not imposed in response to actions taken
prior to therapy37.
Thus, it appears unlikely that the punitive aspect of the involuntary treatment of of-
fenders can be regarded as therapeutic in nature. The fact that they would be confined
and treated against their wills in response to their own wrongdoing introduces an as-
pect of non-therapeutic punishment that even Halleck's medical model cannot elimi-
nate. Because his model leaves the non-therapeutic punishment of criminals without
either definition or justification, Halleck has yet to show that it is possible to eliminate
the notion of criminal responsibility by the adoption of a medical response to crime 38.
35
Id at 144.
36
Id.
37
Id at 150.
38
Id at 150-152.
16
2.2.2.1 Theory of Rehabilitation/Reformation
According to this theory the object of punishment should be the reformation of the
offender. This is not virtually punishment, but a mere rehabilitative process. It aims at
making the criminals as far as possible a better citizen by means of moral and ethical
training that is teaching him to go straight as an upright man and meaningful citizen. 39
Rehabilitation seeks to prevent future crime by altering a criminal’s behavior. This
typically includes offering a host of programs while in prison, including educational
and vocational programs, treatment center placement, and mental health counseling.
This approach also typically gives judges the flexibility to mix in rehabilitation pro-
grams as part of a criminal’s sentencing. The goal is to lower the rate of recidivism, or
people committing another crime after getting released from prison. Crime is not the
result of an original sin in a criminal but is much more a product of its environ-
ment.40The reformative theory is of recent origin and posits that the purpose of pun-
ishment is to reform the offender as a person so that he or she may become a normal
law-abiding citizen once again 41. Forms of punishment that are aimed at rehabilitation
are, amongst others: periodical imprisonment, imprisonment for corrective training,
community service orders and especially committal to rehabilitation centers. 42 Refor-
mation is really procured through punishment if the offender accepts his or her pun-
ishment as just and deserved and amends him-self or her-self accordingly. Refor-
mation through punishment has the following factors:
● The offender must display the potential for moral improvement.
● The offender must realize that what he or she has done is wrong and accept his or
her punishment as the logical consequence of his or her wrongdoing.
● The punishment must be justified in terms of rules for which the offender has re-
spect.
39
Available at https://sclsbd.org/wp-content/uploads/2019/06/12.-Application-of-Reformative-
Theories-Akiful-Islam.pdf. accessed on April 17, 2022.
40
SUBASH C. GUPTA, CAPITAL PUNISHMENT IN INDIA, Deep & Deep Publications, New Delhi
(1986).
41
RABIE, STRAUSS & M.C. MARE, PUNISHMENT: AN INTRODUCTION TO PRINCIPLES 23,
(5th ed.) Lex Patria Publishers (1994).
42
WAYNE LFAVE & AUSTIN W. SCOTT JR, CRIMINAL LAW 24 (1sted.) West Publishing Co.
(1986).
17
This theory regards crime as a creation of the society and holds a belief that the perpe-
trator may have been involved in the crime due to influence of the society and social
environment, therefore the perpetrator should be treated as a patient.
2.2.2.2 Theory of Restoration
This new approach to criminal justice calls for the offender to make direct amends to
the victim of their crime, as well as the community where the crime occurred. Judges
use this approach mostly with juvenile offenders. In this approach, the criminal and
the victim meet so that the offender can hear what the victim says about their experi-
ence with the crime committed. The offender then strives to make amends and seek
forgiveness.
Though this approach is emerged as an alternative to the traditional approach of

punishment/sentencing but it is also not free from the criticism. It has some limita-
tions. It is not applicable for all criminals. Habitual and recidivist criminals never
utilize such rehabilitative program. Some incorrigible criminals are never reformed.
They can use negatively the alternative measures for their criminal aims. There is
little room to utilize this approach independently. This approach may contribute
proper combination with the punitive approach.
2.2.3 Preventive Approach
Preventive Approach is based on the notion of “prevention is better than cure”. The
idea of crime prevention is as old as mankind. This approach to punishment is more
recent than both previous approaches. Actually this approach is based on the idea
that 'the prevention is better than cure.' It tries to prevent the crime rather to refer the
punishment or treatment on the crime or criminals after the occurrence of crime. It is
also universal in nature and believed to eliminate those conditions, which
are responsible for crime. It is more forward step than reformative approach
to punishment and make try to create the crimeless society. So that it includes
the effort to improve the family relations, social solidarity and harmony. It empha-
sizes better adjustment in school, provision of education and recreation designed to
produce useful and upright citizens and the use of aids in the fields of social work,
medicine and psychiatry. It emphasizes on psychiatric program, educational pro-
gram and community program. Its ultimate motto or destination is to make crimeless
18
society. It is a single approach and it has obviously no theory of punishment
is included because it is concerning with the pre-crime environment. It searches the
causes of crime only to the purpose of controlling it rather than consider the sanction
for it.
Throughout history, societies have practiced some primitive methods for crime pre-
vention. People have used natural and man-made barriers, military and vigilante forc-
es as well as a variety of necessary mutual protection to defend against attack by en-
emies or outlaws in every culture, up to and including modern times
Various approaches to preventing crime have been developed over approximately the
past two decades on the basis of a considerable amount of research and evaluation.
The major fields of crime prevention include a range of responses developed over
many years, including developmental, environmental, situational, social and commu-
nity-based crime prevention, and interventions may be classified into a number of
groups. One system refers to social intervention mechanisms, individual treatment
mechanisms, situational mechanisms and policing and criminal justice mechanisms,
for example43.
2.3 Sentencing Models
There are three major models of sentencing throughout the world namely:
Legislative model
In the legislative model the legislature sets out the sentence and the judges have no
discretion to determine the sentence. 44 The length of the punishment for each offence
is determined by statute under the legislative model of sentencing. In accordance with
this approach, neither the prison administration nor parole boards, nor the court at the
time of sentencing, are given any discretion in deciding when the prisoner will be
freed. According to this paradigm, the legislative body is given sole discretion over
the sentence meted out to convicted criminals. The determinate or flat-time sentence
is the name for this kind of sentence.
43
Nick Tilley and others, Problem-Solving Street Crime: Practical Lessons from the Street Crime Initi-
ative ,London, Home Office Research Development and Statistics Directorate Room, (2004).
44
Prof. Dr. Rajit Bhakta Pradhananga and Shreeprakash Upreti, An Overview of Concept and Principles
of Sentencing Process, POKHARA LAW REVIEW, Year 1, Vol. 1, at 9.
19
Judicial Model
In the judicial model the judges exercise the discretion in determining the sentence
within the range set out by the legislature.45 In the judicial model of sentencing, the
judge determines the sentence's length from among options set forth by the legisla-
ture. Administrative authorities are not granted the option to shorten such term. There
is no ultimate discretion granted to the judges; they can only exercise their discretion
within the parameters set by the law.
Administrative Model
In administrative model legislature establishes a wide range of imprisonment for a

particular crime, the judge imposes the sentence which is generally indeterminate and
the decision to release the inmate is later determined by the administrative agency
generally by a parole board46. In this model, the court is required to determine the
punishment that the legislature has prescribed as being appropriate for a specific of-
fence. However, a later administrative body, typically a parole board, makes the
choice to release the prisoner. The indeterminate sentence is the classification of sen-
tence used in this model. The notion is that the offender should only be imprisoned for
as long as is required for rehabilitation, but neither a legislature nor a judge may pre-
determine how long the sentence should be for a certain person. Presumptive model is
the name given to this approach.
2.4 Principles of Sentence Determination
Determining punishment is a different issue in the criminal justice system. There is a

difference between conviction and determining the sentence. Various principles have
been developed regarding sentence determination. These principles are found to be
used by legislative law and courts in a single or mixed form.
2.4.1 Principle of Proportionate Sentencing
The overall punishment must be proportionate to the gravity of the offense is the un-
derlying notion of this principle. In its simplest form, proportionality principle is the
45
Id.
46
Id.
20
view that the punishment should equal the crime. The proportionality principle is one
of the main goals of sentencing. Let the punishment fit the crime is the basis of this
principle. The severity of an offense is determined by the amount of harm it causes.
The intensity of the offense, the degree of responsibility of the perpetrator, as well as
proportionality and injury, are all key factors in this principle.
2.4.2 Principle of Parity
Similar sentences should be imposed for similar offences committed by offenders in

similar circumstances. This principle holds that punishment should not be meted out
differently in the same circumstances and for the same offense which is based on the
principle of equality. The essence of this principle is that different punishments
should not be imposed differently on the convicts of the same offense in similar cir-
cumstances and there should be no inequality in the punishment given to the convicts
of the same situation with the same charges. This idea states that offenders who are
equally culpable should be punished in about the same manner. In general, it is antici-
pated to ensure equity in sentencing for criminals in similar situations who contribut-
ed equally to the crimes committed.
2.4.3 Principle of Parsimony
The sentence must be no severe than is necessary to meet the purposes of sentencing.
The offender should be punished to the extent as much as he is needed to be punished.
The purpose of sentencing is to achieve the goals of sentencing. If the goals of justice
can be achieved through less punishment then it is not necessary to impose harsh and
higher punishment is the main essence of this principle. The principle of parsimony
requires that judges impose the least severe sanction that would achieve the chosen
sentencing purpose. This principle encourages the judge to impose the smallest possi-
ble quantum of punishment.
2.4.4 Principle of Individualization
According to the principle of individualization of punishment, it is believed that the

judge should determine the punishment based on the circumstances of the offender,
the background of the offender and so on. The principle of individualization requires
the sentencing judge to move beyond gravity of offence and degree of responsibility
21
to consider issues such as the background and circumstances of the offender, as well
as the offender’s aggregate experience of his or her treatment at the hands of the state.
Because the system imposes criminal sanctions on the criminal rather than the crime,
the principle of individualization of punishment states that the punishment applied at
the stage of sentencing should match the criminal rather than the crime.
The importance of the sentencing process must be understood in the context of indi-
vidualization in criminal justice administration. Individualization indicates that the
criminal sentence should be tailored to the offender rather than the crime. The princi-
ple of individualization has a number of practical consequences for sentencing. It ex-
plains why a judge may consider state misconduct in arriving at a just sentence in the
circumstances. 47 This principle is closely related with the reformative approach of
punishment.
2.4.5 Principle of Totality
The totality principle is a common law principle which applies when a court imposes
multiple sentences of imprisonment.48 Where an offender is to serve more than one
sentence, the overall sentence must be just and appropriate in light of the overall of-
fending behavior. In different offenses, if the maximum punishment has already been
imposed out to any of the offenses, the punishment should not be imposed exceeding
that.49
2.4.6 Imprisonment as Last Resort
Prison or imprisonment should be taken as the last of the last resort. This principle is
enshrined in domestic legislation of almost all the countries with the objective of
promotion and proportional use of alternatives to custody.
2.5 Sentencing and Human Rights
Punishment is related to human rights as it relates to human life, liberty and property.
Individuals' rights are harmed if penal laws, procedures, and punishments fail to con-
47
Available at https://www.justice.gc.ca/eng/rp-pr/jr/rpps-ropp/p4.html accessed on April 26, 2022.
48
Dr David A. Thomas, PRINCIPLES OF SENTENCING: THE SENTENCING POLICY OF THE
COURT OF APPEAL CRIMINAL DIVISION, Heinemann (1970).
49
NKP 2074, Vol.7, Decision no. 9846.
22
form to human rights laws and principles. Punishment deprives some of the normal
rights of a citizen. In the criminal justice system, the principle that an act is not con-
sidered a crime until the law declare it as a crime(nullum crimen sine lege) , no pun-
ishment until punishment prescribed by the law (nullum poena sine lege )and an act
without punishment is not considered a crime( nullum crimen sine poena) is seen as a
major principle.50 These principles relate to human rights. Various international hu-
man rights instruments have developed a number of provisions and standards related
to criminal justice. The provisions made in this way must be followed by its member
states in determining the punishment.
Equal Punishment between the Offenders for Same Offense
Equal access to justice is regarded as the core principle of the criminal justice system.
All are equal before the law and are entitled without any discrimination to equal pro-
tection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination. 51 All
persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impar-
tial tribunal established by law.52 This principle holds that punishment should not be
meted out differently in the same circumstances and for the same offense which is
based on the principle of equality, is directly related to the issue of human rights.
Protection of Individual Freedoms of the Offender
Citizens' right to liberty is considered a very important right in the criminal justice
system. No one shall be subjected to arbitrary arrest, detention or exile. 53Everyone has
the right to liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law. 54It is necessary to punish
for criminal offenses, but in doing so, it should be done in such a way that the right to
50
N.K.P 2067, Vol. 5, Decision no. 8378.
51
UDHR,1948, Art. 7.
52
ICCPR, 1966, Art. 14
53
UDHR Art.9.
54
ICCPR Art. 9.
23
freedom of the offender is not violated beyond the required limits. The principle of
proportionality of punishment according, to which punishment should be proportional
to the amount of the offense, and the principle of no more punishment than necessary,
is embedded in the right to liberty of the individual.
Principle against Self-Incrimination
The statement of the accused plays an important role in concluding whether the alle-
gation against the person is true or not. His/her statement is also decisive in conclud-
ing whether he/she has committed any crime or not. In the determination of any crim-
inal charge, no person should be compelled to testify against himself or to confess
guilt.55The constitutional guarantee of not having to testify against oneself does not
compel any person to speak against himself except on his own initiative. 56
No Punishment without Crime
No one shall be held guilty of any penal offence on account of any act or omission
which did not constitute a penal offence, under national or international law, at the
time when it was committed.57 No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence, under na-
tional or international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time when the criminal of-
fence was committed. If, subsequent to the commission of the offence, provision is
made by law for the imposition of the lighter penalty, the offender shall benefit there-
by. 58 There shall be no crime without punishment and it should be stated that under
which law which act has been committed while keeping in detention. 59
Double Jeopardy
This principle is based on the ancient roman maxim nemo debet bis virari which
means no punishment twice or more for the same offense. No one shall be liable to be
tried or punished again for an offence for which he has already been finally convicted
55
ICCPR Art. 14(3)g.
56
Rabindra Bhattarai v. HMG Council of Ministers, et.al, NKP 2055, Vol.11, Decision no. 6622.
57
UDHR Art.11(2) ¶1.
58
ICCPR Art.15(1).
59
Ajay Shankar Jha v. OPMCM, NKP 2074 , Vol.7, Decision no. 9845.
24
or acquitted in accordance with the law and penal procedure of each country. 60Once
the offender has been convicted of a crime and sentenced it should be kept in mind
while determining the punishment for re-conviction.
Sentence Hearing to be in Open Bench
A sentencing hearing is when the judge decides what punishment an offender will re-
ceive. If a defendant pleads guilty or is found guilty by a court, they will become
an offender and will need to be sentenced. Sometimes the offender will be sentenced
immediately after the trial. Sometimes another court date will be set for the sentencing
hearing. Hearings on various stages of the judicial process, including convictions,
hearing for sentence determination should be held in an open bench. Everyone is enti-
tled in full equality to a fair and public hearing by an independent and impartial tribu-
nal, in the determination of his rights and obligations and of any criminal charge
against him. 61
Independent, Competent and Impartial Judiciary to Determine Sentence and

Fair Hearing
Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any crimi-
nal charge against him. 62In the determination of any criminal charge against him, or
of his rights and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by
law.63
Compensation in the Extreme Misuse of Justice
If a person is acquitted by a competent court for wrongfully prosecuting a case, his /

her deprived liberty cannot be restored. However, the legal basis for one's treatment
may be compensation. When a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been reversed or he has
been pardoned on the ground that a new or newly discovered fact shows conclusively
60
ICCPR, Art.14(7).
61
UDHR, Art. 10.
62
UDHR, Art. 10.
63
ICCPR , Art. 14(1).
25
that there has been a miscarriage of justice, the person who has suffered punishment
as a result of such conviction shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact in time is wholly or partly at-
tributable to him. 64
No Inhumane, Cruel and Degrading Punishment to be Awarded
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment.65No one shall be subjected to torture or to Cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his free con-
sent to medical or scientific experimentation. 66
Lesser Punishment to be Imposed if the New Law Reduces the Punishment
If the punishment is prescribed according to the law made after the time of the crime,
then it is declared invalid. However, if lesser punishment is provided for the same of-
fense committed later, the accused will get the benefit. No heavier penalty shall be
imposed than the one that was applicable at the time when the criminal offence was
committed67. If, subsequent to the commission of the offence, provision is made by
law for the imposition of the lighter penalty, the offender shall benefit thereby. 68If the
law is amended so that the accused will be given lesser punishment for the crime
while sentencing the lesser punishment should be imposed on the offender.
Protection of the Rights of Victim
Victims' rights remain a fundamental issue in criminal justice, as efforts are made in-
ternationally to ensure the rights of victims, such as restoration, expansion and access
to justice and victim assistance. Establishment of a National Fund for compensation
for victims in accordance with the provisions of national law, to provide victims with
access to justice, to make responsible for the perpetrator of his actions, and to com-
pensate the victim and his family or dependents are the major efforts undertaken by
64
ICCPR Art.14(6).
65
UDHR, Art.5.
66
ICCPR Art. 7
67
UDHR Art.11(2).
68
ICCPR Art.15.
26
various states for the protection of the rights of the victim. 69 During the process of
sentence determination and execution these rights of the victim should be protected.
Minimum Punishment for Children
In today's contemporary world, the practice of juvenile justice has been treated differ-
ently. The international convention relating to child has provided that no child should
be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
Neither capital punishment nor life imprisonment without possibility of release should
be imposed for offences committed by persons below eighteen years of age. 70 Similar-
ly, no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be
used only as a measure of last resort and for the shortest appropriate period of time.71
Abolition of Capital Punishment
Every human being has the inherent right to life and this right should be protected by
law. In countries which have not abolished the death penalty, sentence of death may
be imposed only for the most serious crimes in accordance with the law in force at the
time of the commission of the crime. 72Anyone sentenced to death shall have the right
to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of
the sentence of death may be granted in all cases. 73Sentence of death shall not be im-
posed for crimes committed by persons below eighteen years of age and shall not be
carried out on pregnant women.74
69
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Adopted by
General Assembly resolution 40/34 of 29 November 1985.
70
CRC, 1989 Art.37(1).
71
CRC, 1989 Art.37(2).
72
ICCPR, 1966 Art.6
73
Id.
74
Id.
27
CHAPTER-III
LEGAL FRAMEWORK ON SENTENCING MECHA-
NISM UNDER NEPALESE CRIMINAL JUSTICE SYS-
TEM
The supremacy of law is an inevitable element of rule of law. It is necessary to formu-
late bolstering criminal laws to maintain peace, security, tranquility and to create a
fearless society. The criminal justice system of a country identifies the acts deemed
harmful, undesired and unsolicited to the society and categorizes them as crime in or-
der to curtail the commission of such acts. It has always been the core duty of the state
to investigate, prosecute and dispense justice by punishing the offender of any such
acts. The main goal of investigation, prosecution and dispensation of justice is to pro-
vide relief and security to the victim and to punish the offender. Therefore, Nepal has
also operated a criminal justice system for a long time by governing the procedures of
investigation and prosecution of criminal acts through various laws. In this chapter,
prevailing constitutional and legal provisions relating to sentencing have been dis-
cussed.
3.1Constitutional Provisions
The prevailing constitution of Nepal has embraced the concept of independent, impar-
tial and competent judiciary. 75The constitution has guaranteed a wide array of funda-
mental rights of the citizens under Part-III. The fundamental rights include the rights
of accused and victim during the proceedings of any criminal case in the court of law.
The rights of a person relating to punishment and determination of sentence, guaran-
teed by the Constitution of Nepal can be discussed below:
Right to live with dignity and Right to Freedom
The Constitution guarantees every citizen to enjoy their personal liberty76and to live
with dignity. 77Since the constitutional provision prohibits on making any law sentenc-
75
CONSTITUTION OF NEPAL, 2072, preamble ¶ 4.
76
CONSTITUTION OF NEPAL, 2072, Part III, Article17.
77
CONSTITUTION OF NEPAL, Article 16.
28
ing death penalty78No accused should be prosecuted with the demand of the death
sentence.
Right to Equality
All citizens should be equal before law and no person should be denied the equal pro-
tection of law. 79During the process of sentence determination no person should be
treated differently or discriminated on grounds of origin, religion, race, tribe, sex,
economic condition, physical condition, disability, language, or geographical region,
ideology and such other matters.
Right Relating to Justice
Access to justice is a fundamental right of every citizen. Justice is indispensable to

every person and no one can be abstained from exercising their right to seek justice.
Access to justice comprises legal protection, legal awareness, legal aid, fair hearing,
etc. Nepalese Constitution has also ensured rights relating to justice as a fundamental
right of people. During the process of sentencing in any criminal case the following
rights must be guaranteed to the accused: 80
- No person shall be liable for punishment for an act which was not punishable
by the law in force when the act is committed nor should any person be sub-
jected to a punishment greater than that prescribed by the law in force at the
time of the commission of the offence.
- Every person charged with an offence shall be presumed innocent until proven
guilty of the offence.
- No person shall be tried and punished for the same offence in a court more
than once.
- Every person shall have the right to be informed of any proceedings taken
against him or her.
78
Id.
79
CONSTITUTION OF NEPAL, 2072 Part III, Article 18(1).
80
Id. Art.18.
29
- Every person shall have the right to a fair trial by an independent, impartial
and competent court or judicial body.
Right to Constitutional Remedy
In case of infringement of any of the fundamental rights guaranteed by the constitu-

tion, the aggrieved person has the right to constitutional remedy through writ petition
in the authorized court. Therefore, if the fundamental rights of an accused is infringed
or denied during the course of prosecution, such accused has the right to seek consti-
tutional remedy81 by filing a writ petition in the court pursuant to Art.133 and Art.144
of the Constitution of Nepal.
Courts to Exercise Powers Relating to Justice
Powers relating to justice in Nepal shall be exercised by courts and other judicial bod-
ies in accordance with the Constitution, other laws and the recognized principles of
justice. 82
Pardon in Sentence Determined by the Court
The President may, in accordance with law, grant pardons, suspend, commute or remit
any sentence passed by any Court, judicial or quasi-judicial body or administrative
authority or body. 83
3.2Legislative Provisions
For a long time, Hindu religious scriptures dominated Nepali society and Hindu phi-
losophy guided the ancient and medieval criminal justice systems. In the ancient peri-
od religious scriptures prescribed the punishment. The Sanskrit word 'Danda' was
used to denote punishment and it implies a stick, staff, or rod, and it is a sign of au-
thority and punishment. It has rightly been stated that punishment is required for retri-
bution, restraint, and reformation.
The legislative history of laws governing sentencing mechanism in Nepal dates back
to Muluki Ain of 1910. In 1910 B.S. during the premiership of Jung Bahadur Rana,
81
Id. Art.46.
82
CONSTITUTION OF NEPAL, 2072 Part XI, Article 126.
83
CONSTITUTION OF NEPAL, 2072 , Article 276.
30
the first codified law popularly known as Muluki Ain was promulgated. The preamble
of that code states that it was expedient to issue a legal code because there was no uni-
formity in deciding cases. Similar cases were decided differently. Therefore, a code
was promulgated to provide equal punishment for the same crime 84. But in fact this
code was not based on the principle of equality. There were numerous unequal provi-
sions. There was equality among the people of the same caste. There was the practice
of Panchakhata which included killing of Brahmin, killing of the person of one's own
clan, infanticide and unlawful sexual intercourse. Severe punishment was inflicted for
committing such an offence. The punishments were capital punishment, confiscation
of the whole property, banishment, degrading of caste, branding, imprisonment, fine,
and shaving of the head, feeding human excreta, forcing to leak sole and forcing to go
for pilgrimage. The punishment was based on the caste of the offender. Women,
Brahmin and hermits were not executed.85
After the introduction of new Muluki Ain in 2020 B.S., different types of inhuman
punishments were abolished by several amendments in the Muluki Ain. Discriminato-
ry or caste based system of punishment was brought into end formally after the prom-
ulgation of the Muluki Ain 2020 (1963). Muluki Ain is the country's general code
founded on the principle of equality. It covers criminal and civil law as well as sub-
stantive and procedural law. To keep up with the changing environment of time, crim-
inal law provisions have been amended through many modifications. Prior to 2047
B.S, the death penalty was in practice. Death penalty was abolished after the promul-
gation of Constitution of the Kingdom of Nepal in 2047 B.S. The COKN, 2047 guar-
anteed the basic human rights to the people and independence of the judiciary. Nepal
has become the party of various international human rights conventions and has un-
dertaken the obligation to tune her laws with these human rights instruments. The In-
terim Constitution of Nepal, 2063 has proclaimed that no law shall be made which
provides for the death penalty86. After the codification of National Penal Code, Na-
tional Criminal Procedure Code and Criminal Offences (Sentencing and Execution)
Act in 2074 B.S, Nepal has entered into a new era of criminal justice system. These
84
Preamble of the Ain published in 1943 B.S.
85
Dr. Rajit Bhakta Pradhananga and Shreeprakash Upreti, Historical Evolution of Punishment System
in Nepal, NYAYADOOT, English Special Issue, Nepal Bar Association, Kathmandu (2008).
86
INTERIM CONSTITUTION OF NEPAL, 2007, Art.13(1).
31
codes are milestones for the modern Nepalese criminal legal system. The sentencing
approaches, models and policies adopted by these codes have been discussed below.
3.2.1 Criminal Offences (Sentencing and Execution) Act, 2017
The Act is applicable to the determination of a sentence for any offence by the court
and for the execution of such sentence. 87 However the provisions of this Act are not
applicable to the following conditions: 88
a. imposing a sentence for an offence relating to the contempt of court,
b. imposing a sentence for a breach of the privilege, proceeding of which has

been instituted by the federal parliament or provincial assembly.
c. in cases where any law provides for the non-applicability of this Act.
3.2.1.1General Principles of Sentencing Enshrined by the Sentencing Act
Application of Provisions of the Penal Code and Criminal Procedure Code 89
The implementation of the Sentencing Act should be subject to the Penal Code
and the Criminal Procedure Code. The several terms defined in the Penal Code
and Criminal Procedure Code will have the respective meanings wherever defined
under the Sentencing Act and the principles set forth in the Penal Code are, also
applicable to the implementation of this Act.
Lesser Sentence to be Imposed 90
If any offence is punishable by law with a sentence that is lesser at the time of
sentencing than the sentence at the time of commission of the offence, in such the
sentence should be determined in the manner that it is the lesser.
Sentence under Other Law to be Determined 91
87
Criminal Offences (Sentencing and Execution) Act, Section 3(1), 2017.
88
Criminal Offences (Sentencing and Execution) Act, § 3(2), 2017.
89
Id at § 4.
90
Id at § 5.
91
Id at § 6.
32
If any law provides for a sentence of imprisonment for a fixed term or a sentence
of a fine or penalty of fixed amount for any offence, the offender of such offence
should be subjected to such imprisonment, fine or penalty accordingly.
Sentence to be Imposed under this Act92
Except for the cases set forth in Section 693, sentence for any offence should be
determined pursuant to this Act.
Sentence to be Determined after Conviction 94
The court should determine a sentence to any person for any offense only after
such person is convicted of such offence by the court in accordance with law and
such sentence should be determined not later than thirty days of the conviction.
Separate Hearing to be Conducted95
The sentence should be determined for a convict by conducting a separate hearing.

However, no separate hearing is required for determining sentence for an offender
of an offense punishable by sentence of imprisonment for up to three years or fine
of up to thirty thousand rupees. Except in cases where a judge who declared con-
viction has died, retired or become unable to discharge duties because of a severe
disease, the same judge himself or herself is required to determine the sentence by
conducting a hearing.
Sentence to be Determined by Conducting Hearing in Open Bench96
The sentence should be determined in open bench for an offender of a case other
than a case that is required by law to be heard in-camera. The sentence to be de-
termined as such in open bench should be determined in presence of the offender
or his or her legal practitioner as well.
92
Id. § 7.
93
Cases set forth in § 6 are the cases in which any specific law provides for a sentence of imprisonment
for a fixed term or a sentence of a fine or penalty of fixed amount for any offence.
94
Criminal Offences (Sentencing and Execution) Act, 2017, § 8.
95
Id. § 9.
96
Id. § 10.
33
However, even if the offender cannot be produced before the court for reason of
security or public interest or the offender refuses to appear before the court or the
offender is absconding or legal practitioner of the offender is not present nothing
shall bar for the determination of a sentence.
An offender who cannot be produced before the court during the determination of
the sentence such a person can also be produced through video conferencing; and
where an offender is so produced, the offender will be deemed to have appeared
before the court for the purpose of sentence determination.
More than One Sentence Not to be Executed
In determining a sentence for an offender who has committed more than one of-
fense in a single incident, each offence should be regarded as committed separate-
ly and a separate sentence is to be determined for the same. However, where a
sentence for more than one offence committed at the same time is to be executed,
the sentence for the offence carrying the maximum sentence should be executed. 97
If two or more acts constitute an offence and any one of such acts is itself a sepa-
rate offense, only the sentence for the offence carrying the maximum punishment
should be imposed.98
In cases where any act constitutes a separate offence under the different Acts, the
sentence provided by the Act which is the highest of the sentences under such
Acts is to be executed. However, in determining the sentence, separate sentences
should be determined for each offense. Also, imprisonment and fine are to be con-
sidered separate sentences and executed separately.99
Order to be Given to Prepare Pre-sentence Report
Prior to determining the sentence for an offense punishable by imprisonment for

more than three years or fine of more than thirty thousand rupees, if deemed nec-
97
Criminal Offences (Sentencing and Execution) Act, 2017 § 11(1).
98
Id. § 11(2).
99
Id. § 11(3).
34
essary the court can order a probation officer or parole officer to prepare a pre-
sentence report in respect of the offender.100
Upon receipt of the order to prepare pre-sentence report, the probation officer or
parole officer should prepare a report in respect of the offender, setting out the fol-
lowing matters:101
a. personal, social and cultural background of the offender,
b. circumstances surrounding the commission of the offence,
c. the offender's conduct before the commission of the offence,
d. the offender's age,
e. such other matters as considered necessary by the probation officer or pa-

role officer.
After the preparation of the report the probation officer or parole officer is re-
quired to submit such report to the court102and the court should provide the report
to the concerned government attorney, offender and his or her legal practitioner
and, if the offender is a child, to his or her guardian.103
Purposes of Sentencing to be Taken into Account
The court is required to determine the sentence by taking into account all or any
of the following purposes:104
a. to deter the offender or other persons from committing the offence,
b. to protect the society or community,
c. to deliver justice, along with compensation, to the victim,
100
Id.§ 12(1).
101
Id. § 12(2).
102
Criminal Offences (Sentencing and Execution) Act, 2017, § 12(3).
103
Id. § 12(4).
104
Id. § 13.
35
d. to assist in the offender's rehabilitation in the society, or to reform the offend-
er,
e. to isolate the offender from the society,
f. to make the offender regret his or her offending and promote in the offender of
a sense of acknowledgement that harm has been done to the victim or the
community,
g. to denounce the conduct prohibited by law.
Matters to be Taken into Account in Determining Sentence
The court in determining a sentence should take into account the following mat-
ters:105
a. sentence should not be disproportionate to the gravity of the offence and the
degree of culpability of the offender,
b. sentence should not be more severe than is necessary to achieve the purposes
of sentencing,
c. sentence should not be incompatible with or unequal to the sentence previous-

ly imposed on another offender of the offence committed in similar circum-
stances,
d. in determining a sentence for two offences or imposing a sentence for another

offence on an offender who is serving a sentence for one offence, the overall
sentence should not be unjust and disproportionate,
e. Sentence of imprisonment should not be imposed where other sentences seem

to be adequate in proportion to the offense.
Grounds for Determining Sentence
A sentence is to be determined on the basis of following grounds: 106
105
Id. § 14(1).
106
Id. § 15(1).
36
a. the gravity of the offence and the degree of culpability of the offender,
b. the circumstances surrounding the commission of offense,
c. the gravity of the offence aggravating or mitigating factors,
d. the offender's conduct and previous activities,
e. purpose of sentencing set forth in Section 13.
In determining a sentence based on grounds mentioned above, the sentence should

be determined as follows:107
⮚ the sentence of imprisonment for an offender who commits a heinous or

grave offence,
⮚ in sentencing a child, his or her reform and rehabilitation,
⮚ for a recidivist, a sentence that is double the sentence imposable for the
last offense committed,
⮚ the sentence of imprisonment for an offender who is dangerous to the soci-

ety or the community,
⮚ for an offender who, being a holder of a position or authority in any gov-

ernment office or public or body corporate, commits an offence by abusing
such position or authority, the sentence that is one and half of the sentence
imposable on such offence.
Matters to be Taken into Account in Sentencing a Child
In imposing a sentence on a child, the following matters shall also be taken into
account:108
a. his or her best interests,
b. the gravity of the offence and the degree of culpability,
107
Id. § 15(2).
108
Id. § 16(1).
37
c. his or her personal circumstances 109,
d. compensation offered to the victim,
e. remorse shown for the offence,
f. desire for living a good and useful life.
In imposing a sentence on a child below sixteen years of age, the sentence of im-
prisonment should not be imposed except in cases where the child has committed
a heinous or grave offence or is a recidivist. 110
Matters to be Set Out in Determining Sentence
In determining a sentence following matters are required to be set out in the deci-
sion or order:111
a. the reason for awarding the sentence,
b. in the case of determination of the sentence of fine, the amount of fine to

be paid by the offender, the date for payment of the fine, whether the fine
is payable by installments, the sentence of imprisonment imposable for
failure to pay the fine,
c. in the case of determination of the sentence of imprisonment, the term of

imprisonment, the date of being held in custody, the date of completion of
the service of imprisonment,
d. in the case of a community service order, the type, period and time of the
service, and sentence imposable for failure to do the service,
e. in the case of determination of the sentence of imprisonment in a reform

home or rehabilitation center, the period of stay in such home or center,
the terms and conditions to be complied with and sentence imposable for
failure to comply with such terms and conditions,
109
"Personal circumstances" includes the age, education, family and social condition of the child, type
of the offense, harm caused by the offense and the objective of the commission of the offence.
110
111
Id. § 17.
38
f. whether the offender can be released on parole or not,
g. if imprisonment is capable of suspension, the period of such suspension,
h. if compensation is to be made, the amount of compensation, period and

procedure for making compensation, and sentence imposable for failure to
make compensation,
i. in the case of conditional suspension of sentence for a child under sub-

section (5) of Section 24112, sentence imposable for violation of such con-
dition,
j. such other necessary matters as the court thinks appropriate.
3.2.1.2 Provisions Relating to Fine

Grounds for Determination of Sentence of Fine:113
The sentence of fine for an offence should be determined by taking into account such
offence and the maximum and minimum amount of fine, in addition to the other mat-
ters set forth in the Sentencing Act.
In determining the fine the following matters should also be taken into account:
a. the offender's financial status and source of income,
b. financial harm caused to other person from the offence committed by the of-
fender,
c. benefit received by the offender or his or her family from the commission of
the offence by the offender,
d. implications of the fine to the family required to be maintained by the offend-

er,
e. the amount of compensation required to be paid to the victim,
f. liability likely to be borne by the government due to non-payment of the fine,
112
The conditions under § 24(5) are discussed below under different heading.
113
Criminal Offences (Sentencing and Execution) Act, 2017, § 18.
39
g. if the offender is a body corporate, the financial status and transactions of such
body,
h. if an amount is required to be deposited into the victim relief fund, such

amount.
In determining a fine the fine is required to be determined on the basis of the amount
in controversy if such amount is set.
Fine to be so Determined as Not to be Prejudicial to Compensation:
In imposing a fine, if the fine is to be so imposed that the offender must also pay
compensation to the victim of the offence, the fine shall not be so imposed that the
offender is unable to pay such compensation. 114
Fine to be Paid Immediately:115
The offender must immediately pay the fine imposed on him/her. However, if such
offender being unable to pay a fine imposed upon him/her immediately, furnishes any
property as the security for such fine, the court may order the offender to pay the fine
in a maximum of three installments that such amount is paid up within one year.
Fine to be so Determined as to be Payable by Each Offender:
In determining a fine for more than one offender in relation to any offence the fine
should be so determined that each offender has to pay the fine according to the degree
of the offending. 116
3.2.1.3 Provisions Relating to Community Service

Power to Order for Community Service: 117
In relation of an offender who is sentenced to imprisonment for a term not exceeding

six months, having regard also to the offence committed by the offender, the age,
conduct of the offender, the circumstances and the manner of the commission of the
offence if it appears to the court that it is not appropriate to imprison the offender, the
114
Id. § 19.
115
Id. § 20.
116
Id. § 21.
117
Id. § 22.
40
court may order the offender to do the community service or to do the community
service for the remaining period after the offender has served the sentence of impris-
onment for such period as the court deems appropriate in relation to such offence.
However, the court should make an order of community service only if the offender
agrees to do the community service.
The following work shall be considered as a community service:
a. doing a public work for free,
b. serving at a hospital, elderly home, orphanage for free,
c. doing environment protection related work for free,
d. teaching or serving at a public or community school for free,
e. providing or causing to be provided sports training for free,
f. doing work at a benevolent organization for free,
g. appearing before such rehabilitation or reform organizations as designated by

the court and doing such work as specified by such organization.
In making the community service order the order should be so made that the offender
is required to do any work that falls under the category of community service as pre-
scribed by the Sentencing Act for a period that is equal to that of imprisonment im-
posed on the offender or to that of imprisonment which remains to be served by the
offender. In determining the period of community service the court should also speci-
fy the hours of work a day to be done by the offender.
In making an order of community service to be done by the offender the terms and
conditions to be compiled with by him or her should also be specified. If the offender
does the community service in compliance with the terms and conditions, the sentence
of imprisonment imposed on him or her should be deemed to have been served.
The offender should do community service under the supervision of a probation of-
ficer or parole officer as designated by the Probation and Parole Board.
41
The court should revoke the order of community service if any offender fails to do the
community service set forth in the order does not comply with the terms and condi-
tions prescribed or it is known after the issuance of the order of community service
that the offender had committed any offence previously or the offender commits any
other offence during that period. After such revocation of the order, such offender
must serve the sentence of imprisonment imposed on him or her or the remaining pe-
riod of imprisonment to be served by him or her in prison.
3.2.1.4 Provisions Relating to Imprisonment

Sentence of Imprisonment to be Imposed if Other Sentence is Not Adequate
The offender should be sentenced to imprisonment in the event of the sentence of fine
and community service being not adequate.118
Sentence of Imprisonment may be Suspended:
In cases where an offender on whom a sentence of imprisonment for less than one
year has been imposed has committed the offence for the first time and, having regard
to the offence committed by the offender, the age, conduct of the offender, the cir-
cumstances and the manner of the commission of the offence if it appears to the court
that it is not appropriate to imprison the offender, the court may, without implement-
ing the sentence of imprisonment imposed on such offender, suspend such imprison-
ment.119 Such Suspension of the sentence of imprisonment may be made until three
years from the date of its determination. 120
However, no sentence of imprisonment imposed on an offender other than a child

held guilty of any of the following offences may be suspended: 121
(a) murder,
(b) rape,
(c) human trafficking and transportation,
118
Id. § 23.
119
Id. § 24(1).
120
Id. § 24(2).
121
Id. § 24(3).
42
(d) arms, ammunition and explosive,
(e) corruption,
(f) taking of hostage and kidnapping,
(g) robbery,
(h) counterfeiting of currency or government stamps,
(i) foreign exchange,
(j) offence relating to narcotic drug trafficking and transaction,
(k) relating to ancient monument,
(l) relating to forest and wildlife,
(m) organized crime,
(n) money laundering,
(o) offence relating to torture or cruel, inhumane or degrading treatment,
(p) crime against humanity.
In making a order of suspension of the sentence of imprisonment, the order should be

so made that the offender is required to do the following during the period of suspen-
sion:122
a. to do a public work for free,
b. to assist in any work of the victim of the offence,
c. to refrain from doing any act or conduct set forth in such order,
d. to refrain from moving outside of his or her residence or any particular place,
e. to refrain from committing any offence during the period of sentence or within
three years of the service of such sentence,
122
Id. § 24(4).
43
f. to remain within any place specified by the court,
g. to remain in a treatment and rehabilitation center,
h. to refrain from meeting a particular person.
However, in making suspension of the sentence for a child, decision should be made
as follows, with or without specifying the terms and conditions, having regard also to
his or her age and the circumstances of the commission of the offence: 123
a. that any family member or guardian remind and counsel him or her of good
human conduct,
b. that any service providing agency or individual orient the child, that sole,
group or family
c. psychosocial counseling service be provided to the child,
d. that the child will remain under the guardianship and supervision of any fami-
ly member, guardian, school, service provider, individual or organization for a
certain term, subject to the compliance with the specified terms and condi-
tions.
If the offender complies with the matters set forth above during the period of suspen-
sion, the offender is deemed to have served the sentence of imprisonment124 and if the
offender violates the conditions for suspension of imprisonment, the court should re-
voke the order of suspension125 of imprisonment. If the order of suspension of impris-
onment is revoked, after the revocation such offender is required to serve the whole of
the sentence of imprisonment imposed on him or her in prison 126.
Power to Make Order to Send Offender to Reform Home:
In relation of an offender who is sentenced to imprisonment for a term of two years or

less, having regard also to the offence committed by the offender, the age, conduct of
the offender, the circumstances and the manner of the commission of the offence, if it
123
Id. § 24(5).
124
Id. § 24(6).
125
Id. § 24(7).
126
Id. § 24(8).
44
appears to the court that it is appropriate to hold him or her in a reform home instead
of sending him or her to prison, the court may, on recommendation of a probation of-
ficer, send such offender to the reform home. 127
However an offender who has committed any offence set forth in subsection (3) of
Section 24128 should not be sent to such a reform home. 129
In sending any offender to a reform home the terms and conditions to be compiled by
him or her should also be specified as determined by the Probation and Parole
Board.130
If the offender serves the term of imprisonment in a reform home in compliance with
the terms and conditions he or she will be deemed to have served such term in pris-
on.131
However, if the offender does not reform his or her conduct or fails to comply with
the prescribed terms and conditions or commits any offence punishable by imprison-
ment during that period, he or she must serve/spend the whole period of imprisonment
in prison. 132
Power to Make Order to Send Offender to Rehabilitation Center:
In relation of an offender who is convicted of using narcotic drug or who is suffering

from physical or mental infirmity or similar other offender, having regard to the of-
fence committed by the offender, the age, conduct of the offender and the circum-
stances of the commission of the offence, if it appears to the court that it is appropri-
ate to send him or her to a rehabilitation center instead of sending him or her to pris-
on, the court may, on recommendation of a probation officer, send such offender to
the rehabilitation center.133
127
128
Supra note 121.
129
130
Id. § 25(3).
131
Id. § 25(4).
132
Id. § 25(5).
133
Id. § 26(1).
45
However, an offender who has committed any offence set forth in subsection (3) of
Section 24134 should not be sent to a rehabilitation center. In sending an offender to a
rehabilitation center the terms and conditions to be compiled with by him are also to
be specified. 135 If the offender serves the term of imprisonment in a rehabilitation cen-
ter in compliance with such terms and conditions he or she will be deemed to have
served such term of imprisonment in prison. 136 However, if the offender remaining in
a rehabilitation center does not reform his or her conduct or fails to comply with the
terms and conditions or commits any offence punishable by imprisonment during that
period, he or she must serve/spend the whole period of imprisonment in prison. 137
Service of Imprisonment in Prison on the Weekend or During the Night Only:
In relation of an offender sentenced to imprisonment for a term not exceeding one

year, having regard to, inter alia, the offence committed by the offender, his or her
age, conduct, the gravity of the offence and the manner of the commission of the of-
fence, if it appears to the court that it is not appropriate to hold him or her regularly in
prison, the court may, for reasons to be recorded, so determine the sentence of impris-
onment that such offender is required to remain in prison only on the weekend or only
during the night on daily basis.138 However, an offender who has committed any of-
fence set forth in subsection (3) of Section 24 139 should not be sentenced to the pun-
ishment as such.140
In determining the sentence of service of imprisonment in prison on the weekend or

during the night only the court my specify the terms and conditions to be compiled
with by the offender141 and if the offender held in prison as such serves such term of
imprisonment in compliance with the terms and conditions prescribed, he or she will
be deemed to have served such imprisonment in prison. 142 If the offender held in pris-
on as such fails to comply with the terms and conditions under prescribed or commits
134
Supra note 121.
135
136
Id. § 26(4).
137
Id. § 26(5).
138
Id. § 27(1).
139
Supra note 121.
140
141
Id. § 27(3).
142
Id. § 27(4).
46
any offence punishable by imprisonment during that period, he or she must
serve/spend the whole period of imprisonment imposed on him or her in prison. 143
Power to Make Order to Hold Offender in Open Prison
The judge of the concerned District Court on recommendation of the chief of Prison
Office, may make an order to hold in open prison144 an offender who has served two-
thirds of the term of imprisonment and has good conduct.145
In sending an offender to an open prison, terms and conditions to be complied with by

the offender should also be specified. 146
If the offender sent to an open prison pursuant fails to comply with the terms and con-
ditions or commits any offence punishable by imprisonment during that period, he or
she must serve/spend the whole period of imprisonment imposed on him or her in
prison147.
Power to Make Order to Place Offender on Parole:
The judge of the District Court on recommendation of the concerned District Proba-
tion and Parole Board may make an order to place on parole an offender who, upon
being sentenced to imprisonment for more than one year, has served two-thirds of the
sentence and has good conduct.148 However, following offenders may not be placed
on parole:149
a. One who has been sentenced to life imprisonment,
b. One who has been sentenced for the offence of corruption,
c. One who has been sentenced for the offence of rape,
143
Id. § 27(5).
144
"open prison" means any place specified by the Government of Nepal in a manner that a prisoner
may work during the specified time even outside of the place where he or her is held.
145
146
Id. § 28(2).
147
Id. § 28(3).
148
Id. § 29(1).
149
Id. Provisio.
47
d. One who has been sentenced for the offence of human trafficking and trans-
portation,
e. One who has been sentenced for the offence of organized crime,
f. One who has been sentenced for the offence of money laundering,
g. One who has been sentenced for an offence related to torture or cruel, inhu-
mane or degrading treatment,
h. One who has been sentenced for the offence of crime against humanity,
i. One who has been sentenced for an offence relating to the crime against the
state.
In making an order for parole the terms and conditions so determined by the Probation
and Parole Board as to be complied with by such offender during the period of parole
should also be specified.150
The parole officer is required to monitor whether or not the offender has complied
with the terms and conditions. 151 If the offender on parole complies with the terms
and conditions prescribed, the sentence of imprisonment imposed on him or her will
be deemed to have been served 152 and if the offender on parole fails to comply with
the terms and conditions or commits any offence punishable by imprisonment during
that period, he or she must serve/spend the remaining period of imprisonment im-
posed on him or her in prison.153
To have Socialization:
A prison may release an offender who, upon being sentenced to imprisonment for a
term exceeding one year, is serving the sentence and bears good conduct, from prison
on monthly or daily basis six months before the expiry of the term of imprisonment
imposed on him or her for the following purpose:154
150
151
Id. § 29(3).
152
Id. § 29(4).
153
Id. § 29(5).
154
Id. § 30(1).
48
a. family reunion,
b. establishment of social, cultural relation,
c. social assimilation and rehabilitation,
d. carrying on a business or employment,
e. taking skill or employment-oriented training.
In releasing an offender from prison for the purpose of socialization, terms and condi-
tions to be complied with by such offender should also be specified 155 and time to be
spent156 for such purposes should also be specified.
The person so released should submit a weekly report on the work he or she has done
to the concerned prison.157 If a person so released fails to comply with the terms and
conditions as specified or commits any offence during that period, he or she shall
serve/spend the remaining period of imprisonment in prison. 158
Engagement in Physical Labor in Lieu of Imprisonment
If an offender who is above the age of 18 and physically fit, and has been sentenced to
imprisonment for a term of three years or more so desires, the offender may be en-
gaged in physical labor for public work.159
The sentence of imprisonment imposed on an offender who is engaged in physical

labor for public work should be deducted by an additional one day in lieu of the labor
done for every three days. 160
Prisoner May be Allowed to Leave Prison:
A prison may, in the following circumstance, permit a prisoner who, upon being sen-
tenced to imprisonment, is serving the sentence of imprisonment in the prison to go
out of the prison with necessary security: 161
155
Id. § 30(2).
156
Id. § 30(3).
157
Id. § 30(4).
158
Id. § 30(5).
159
Id. § 31(1).
160
Id. § 31(2).
49
a. in the event of a close relative having fallen ill, to visit such patient on condi-
tion that he or she shall return to the prison on the same day,
b. in the event of the death of a relative of whom crematory or obsequies rites

have to be performed by the prisoner himself or herself, to perform such crem-
atory or obsequies rites on condition that he or she shall return to the prison on
the specified day.
Reformative Programs to be Conducted:
In order to reform the conduct of prisoners serving the sentences of imprisonment, a

prison should conduct reformative programs and measures, including skill, education
and employment oriented, morality, disciplinary, physical, spiritual, meditation and
exercise related education programs. 162
A prison should submit a report setting out whether or not the prisoners have made
significant reforms in their conduct as a result of the programs and measures conduct-
ed to the Probation and Parole Board every six months. 163
Prisoner to be Kept in Hospital or Similar Other Place:
If any offender sentenced to imprisonment becomes of unsound mind, the prison

should keep such offender in a hospital or similar other medical center. 164
The period during which an offender is kept in a hospital or medical center should be
included in the period of the sentence of imprisonment served by the offender. 165
Computation of Fractions of Sentence:
In imposing a fraction of sentence, a sentence of imprisonment for life should be

reckoned as equivalent to imprisonment for twenty-five years and the fraction of sen-
tence thereof should be imposed and executed in accordance with law. 166
161
Id. § 32.
162
Id. § 33(1).
163
Id. § 33(2).
164
Id. § 34(1).
165
Id. § 34(2).
166
Id. § 35.
50
Execution of Sentence of Imprisonment Imposed for Different Offences
In imposing the sentence of imprisonment for more than one offence on a person
who, upon being sentenced to imprisonment, is serving the sentence of imprisonment,
the sentence of imprisonment should be imposed and executed as follows: 167
a. where the period of the sentence of imprisonment under the previous

judgment is longer than or equal to that of imprisonment under the lat-
ter judgment, the sentence of imprisonment imposed under the previ-
ous judgment shall be executed;
b. where the period of the sentence of imprisonment under the latter

judgment is longer than that of imprisonment under the previous judg-
ment, the period of the sentence of imprisonment under the latter
judgment shall be added to the extent it is longer than the previous
judgment.
However, if a sentence of imprisonment is imposed for another offence on a person

who is sentenced to imprisonment for any offence prior to completion of the previous
sentence, the latter sentence of imprisonment should be so executed as to be computed
after the completion of the period of the previous imprisonment.168
Where a person is sentenced, in the same case, to various sentences of imprisonment

for various offences in accordance with the laws in force, only the sentence of impris-
onment for the offence which is the longest of such sentences should be executed. 169
If the sentences of imprisonment imposed as such are equal, only one of such sen-
tences should be executed.170
However, where a separate sentence is provided by law for a recidivist or a consoli-

dated offence, such sentence should be executed. 171
Remission of Imprisonment:
167
Id. § 36(1).
168
Id. § 36(2).
169
Id. § 36(3).
170
Id. § 36(4).
171
Id. § 36(5).
51
If an offender, except the following offender, has served three-fourth of the sentence
of imprisonment and has reformed his or her conduct while in prison, the prison may
make remission as prescribed from the sentence of imprisonment passed on him or
her:172
a. one who has been sentenced to imprisonment for life,
b. one who has been sentenced for the offence of rape,
c. one who has been sentenced for the offence of corruption,
d. one who has been sentenced for the offence of human trafficking and transpor-
tation,
e. one who has been sentenced for the offence of taking of hostage and kidnap-
ping,
f. one who has been sentenced for the offence of organized crime, 34 (g) one
who has been sentenced for the offence of money laundering,
g. one who has been sentenced for an offence related to torture or cruel, inhu-
mane or degrading treatment,
h. one who has been sentenced for the offence of crime against humanity.
Probation and Parole Board:
There is the provision of a Federal Probation and Parole Board, to render assistance in
the social rehabilitation and integration of the offenders sentenced to imprison-
ment:173The formation of Federal Probation and Parole Board should be as follows:
a. Attorney General - Chairperson
b. Secretary, Ministry of Law, Justice and Parliamentary Affairs - Member
c. Secretary, Ministry of Home Affairs – Member
172
Id. § 37.
173
Id. § 38(1).
52
d. Two psychologists, including one woman to the extent of availability, desig-
nated by the concerned Ministry - Member
e. Inspector General, Nepal Police - Member
f. Criminologist or penologist designated by the concerned Ministry - Member
g. Director General, Department of Prison Management - Member Secretary
There is the provision of State Probation and Parole Board as follows in each State,
which is under the direct guidance, control and supervision of the Probation and Pa-
role Board:174
a. Chief Attorney - Chairman
b. Secretary, State Ministry of Law - Member
c. Secretary, State Ministry of Home Affairs - Member
d. Chief of Police, State Police
e. Two psychologists, including one woman to the extent of availability, desig-

nated by the State Government - Member
f. Criminologist or penologist designated by the State Government - Member
g. Chief of the State body responsible for prison management - Member Secre-
tary
Functions, Duties and Powers of Probation and Parole Board: 175
The functions, duties and powers of the Federal Probation and Parole Board are as
follows:
a. to formulate a probation and parole policy and recommend it to the Govern-

ment of Nepal,
b. to develop standards for placing prisoners on probation and parole,
174
Id. § 38(2).
175
Id. § 39(1).
53
c. to develop terms and conditions to be abided by the offenders who are re-
leased on probation and parole,
d. to supervise, control activities of, and give direction, as required, to the State
Probation and Parole Board,
e. to prepare a roster of persons who can be appointed or designated as the pro-

bation officer or parole officer, as required to make recommendation as to the
execution of sentences and to assist in the rehabilitation of offenders pursuant
to this Act,
f. to carry out other necessary matters relating to probation and parole.
The Probation and Parole Board on its own is required to determine the rules of pro-
cedures required for the performance of its functions. 176 The Probation and Parole
Board may, as required, form a sub-committee to render assistance in its functions. 177
Computation of Period of Imprisonment
The period of imprisonment should be computed from the date of custody or deten-
tion of the offender, if so held in custody or detention, and from the date that the of-
fender is held in prison, if not held in custody or detention. 178 The period of impris-
onment should not include the day of release from detention or prison. 179
3.2.1.5 Provision Relating to Compensation

Payment of Compensation to be Ordered:
If any injury is caused to the victim's body, life, property or reputation as a result of
any offence, the court is required to order that a reasonable amount of compensation
be paid by the offender to the victim for such injury. 180 However, if a law provides for
a separate compensation for any offence, the law should apply accordingly.
176
Id. § 39(2).
177
Id. § 39(3).
178
Id. § 40(1)
179
Id. § 40(2).
180
Id. § 41(1).
54
The amount of such compensation should be determined, having regard to the follow-
ing matters:181
a. physical, bodily, mental and emotional injury caused to the victim,
b. where the victim has died, the injury caused to his or her heir,
c. the offender's financial source and condition,
d. condition of the victim and his or her dependant,
e. such other matters as the Court holds appropriate.
The amount of such compensation should be ordered to include the medical expenses
if the victim has sustained hurt or grievous hurt as a result of the offence, and the fu-
neral and obsequies expenses, if the victim has died.182
Where an offender has caused damage to the victim's property, the court should, in
ordering the payment of compensation, order that such property be restituted in its
original position. 183 If a property cannot be restituted in its original position, the
amount of compensation should be ordered to be paid according to the price of such
property where the price is set, and where the price cannot be so set, according to the
price of such property that can be set at the time when damage was caused to it or the
sentence passed.184Payment of compensation may be ordered to be in cash or kind or
both.185
If the victim of an offence has died prior to the payment of compensation, the amount
of compensation should be ordered to be paid to his or her dependent heir. 186
Compensation to be Paid Immediately:
The offender should immediately pay the amount of compensation. 187 However, if
such a person, being unable to pay the compensation immediately, furnishes any
181
Id. § 41(2).
182
Id. § 41(3).
183
Id. § 41(4).
184
Id. § 41(5).
185
Id. § 41(6).
186
Id. § 41(7).
55
property as the security for such compensation, the court may order the offender to
pay the compensation in a maximum of three installments that such amount is paid up
within one year.188
Compensation to be Borne by Each Offender:
In making an order for the payment of compensation for more than one offender in
relation to any offence, such order should be made so that each offender pays the
compensation according to the degree of the offending. 189
To be as Per Agreement:
The victim and the offender can enter into agreement on payment of compensation in
relation to any offence. 190If such agreement is found reasonable, the court may make
an order for the compensation as per such agreement.191
Imprisonment for Non-Payment of Compensation:
If an offender who is required to pay compensation does not pay the amount of com-
pensation within the period specified for its payment, compensation should be ordered
to be paid to the victim by making attachment to such offender's property. 192
If the amount of compensation cannot be recovered from the property attached or if

the offender required to pay compensation fails to do so, he or she should be impris-
oned by converting the amount of compensation into imprisonment at the rate of three
hundred rupees for a day.193 However such imprisonment should not exceed four
years. 194
3.2.1.6 Other Provisions

Sentence Recommendation Committee:195
187
Id. § 42(1).
188
Id. § 42(2).
189
Id. § 43.
190
Id. § 44(1).
191
Id. § 44(2).
192
Id. § 45(1)
193
Id. § 45(2)
194
Id. § 45(3).
195
Id. § 46.
56
The Act has provisioned a Sentence Recommendation Committee, as follows, also for
the making of sentencing policy:
a. Attorney General - Chairman
b. Secretary, Ministry of Law, Justice and Parliamentary Affairs - Member
c. Inspector General, Nepal Police - Member
d. One person designated by the Government of Nepal from amongst the persons
having gained at least fifteen years of experience in the field of crime investi-
gation or the penologists - Member
e. One person designated by the Government of Nepal from amongst the persons
having gained at least ten years of experience in the rehabilitation of offenders
– Member
Functions, Duties and Powers of the Sentence Recommendation Committee:
The functions, duties and powers of the Committee are as follows: 196
a. to develop standards for the determination of appropriate range of sentence to

be imposed on the offender according to the gravity of offence,
b. to conduct study and research the on prevailing penal policy and give sugges-
tion to the Government of Nepal for reform thereof,
c. to make opinion, advice and suggestion on sentence to be imposed in relation

to any specific type of offences,
d. to collect, update and analyze data/records of the offenders and give sugges-
tion to the Government of Nepal on punishment,
e. if there appears a need for making any reform in the laws in force on punish-
ment, to give suggestions to the Government of Nepal for that purpose.
196
Id. § 47(1).
57
The Committee should, on its own, determine the rules of procedures required for the
performance of its functions.197The Committee may, as required, form a subcommit-
tee to render assistance in its functions.198
Victim Relief Fund to be Established:
The Act has provisioned for the establishment of a fund entitled the victim relief fund
for the provision of relief to the victim of offence. 199
The Government of Nepal is required to credit into such fund, fifty percent of the
amount recovered for a fine under the court or of the amount paid by an offender sen-
tenced to imprisonment as a fine in lieu of such imprisonment, in accordance with the
Penal Code.200
In addition to that, any amount as provided by law or received from the Government
of Nepal or any other source should be credited into the fund.201
The operation of the fund, classification of victims, grounds for the provision of relief
amount to the victims from the fund, limits of such amount and procedure for its dis-
tribution will be as prescribed by the law.202
Designation of Probation Officer or Social Activist:
The Government of Nepal may appoint or designate those persons who are experi-
enced in rehabilitation or community service as the probation officer or parole of-
ficer.203
Commencement of the Provisions of the Act
Provision relating to community service, power of the court to send the offender to
reform home, power to make order to send offender to rehabilitation center, provision
of service of imprisonment in prison on the weekend or during the night only, provi-
197
Id. § 47(2).
198
Id. § 47(3).
199
Id. § 48(1).
200
Id. § 48(2).
201
Id. § 48(3).
202
Id. § 48(4).
203
Id. § 49(1).
58
sion relating to hold offender in open prison, placing offender on parole, provision to
have socialization, provision of engagement in physical labor in lieu of imprisonment
and provision relating to designation of parole/probation officer will come into force
on a date appointed by the Government of Nepal by a notification in the Nepal Ga-
zette.204
3.2.2 National Penal Code, 2074 B.S
The codification of the National Penal Code, 2074 is the biggest contribution and it is
the milestone of the modern Nepali criminal legal system. This is the last effort into
codification of criminal law in Nepal. This Code was enacted by Legislative Parlia-
ment in 2074 on August 8, 2017, and it will come into force on August 17, 2018.
Since 1951, Seven Law Reform Commissions were formed in 1953 (1st), 1957 (2nd),
1960 (3rd), 1962 (4th), 1972 (5th), 1984 (6th) and 2008 (7th) formed to modernize
and reform law including a criminal law in Nepal. Similarly, Nepal has drafted two
Draft Penal Codes from 1951 to till now. However, previous Draft Codes were never
put forward for discussion in the legislature. However, the Draft Codes played a very
significant role in developing and reforming criminal law as well as homicide law.
3.2.2.1Aggravating and Mitigating Factors

The National Penal code has provisioned various aggravating factors that increase the
culpability of; and mitigating factors that reduces the criminality of the offender in
any offense. The aggravating factors and mitigating factors play a significant role in
determining the quantum of punishment during the stage of sentencing. The following
factors should be considered as aggravating the gravity of an offence if such factors
exist in any offense205:
a. the offence was committed against the President or Head of Government or

head of a foreign State,
b. the offence was committed in presence of the President or Head of Gov-

ernment or head of a foreign State,
c. the offence was committed by the breach of trust,
204
Id. § 1.
205
National Penal Code, 2017, § 38.
59
d. the offence was committed by taking benefit of or abusing a public office,
e. the offence was committed with the intention of obstructing a person hold-
ing a public office in discharging his or her official duty or to cause such
person to commit an illegal act,
f. the offence was committed in any government office, public office or reli-
gious place,
g. the offence was committed by five or more persons affiliated in a group,
h. the offence was committed by taking advantage of the disturbance of pub-

lic peace or landslide, flood, earthquake or natural calamity of similar na-
ture or outbreak of epidemic, starvation or occurrence of any other crisis of
similar nature,
i. the offence was committed by carrying or using an arm or toxic or explo-

sive substance or supplying electricity or using an electronic device or with
the aid of a person carrying an arm, toxic or explosive substance,
j. the offence was committed again by an offender already sentenced to im-

prisonment,
k. the offence was committed by being allured of any remuneration or assur-

ance or benefit,
l. the offence was committed against a person under one’s own protection or
control or against the property under one’s own custody,
m. the offence was committed by subjecting any one to torture, cruel, inhu-
mane or degrading treatment, more than one offence were committed in a
single transaction/occasion/event,
n. the offence was committed against more than one person in a single trans-
action/occasion,
o. the offence was committed by abducting or taking hostage of any one,
60
p. the offence was committed against a person under detention, custody, im-
prisonment or control, the offence was committed by a person who has a
duty to provide security to any person against that person, the offence was
committed with the intention of genocide (with intent to destroy any race,
caste, or group),
q. the offence was committed with the intention of causing hatred against any
race, tribe, religious or cultural community,
r. the offence committed was a crime against humanity, the offence was
committed in a planned or organized manner,
s. the offence was committed against an elderly person above the age of sev-
enty five years or a person being of unsound mind by reason of physical or
mental illness or a person incapable of defending himself or herself be-
cause of disability or a child, the offence was committed by a person who
was deputed in rescue work in a motor vehicle, aircraft accident or natural
calamity while being engaged in such rescue work, the offence was another
offence committed by the same offender against the person who had al-
ready become a victim of an offence.
Similarly, the following factors should be considered as factors mitigating

the gravity of an offence if such factors exist in any offence: 206
a. The offender is below eighteen years or above seventy five years of

age, offender had no intention to commit the offence, the person against
whom the offence was committed had, immediately before the commis-
sion of the offence, provoked or given threat to the offender, the of-
fence was committed instantly as a retaliation against any grave offence
committed against the offender or any of his or her close relatives,
b. the offender voluntarily confessed the offence or expressed a remorse

therefore,
c. the offender surrendered to the concerned authority,
206
Id. § 39.
61
d. the offender, having confessed the offence committed by him or her,
has already provided or agreed to provide compensation to the victim,
e. the offender has diminished capacity because of physical or mental

ability or disability,
f. the extent of loss or harm caused to the victim and the society being in-
significant, the offender rendered assistance in judicial proceedings by
telling the truth in the court,
g. the offender has confessed the guilt and committed not to commit any
criminal offence in the future,
h. the offence was committed under other's instigation or inducement/ in-

fluence.
3.2.2.2Types of Punishments under NPC

The different types of punishment provided by the NPC for the purpose of sentencing
are:207
a. imprisonment for life,
b. imprisonment,
c. fine,
d. imprisonment and fine,
e. compensation,
f. imprisonment for the failure to pay fine or compensation,
g. community service in lieu of imprisonment.
Where any law provides for the sentence of confiscation of property for any
offence, such sentence of confiscation should not be imposed for that of-
207
Id. § 40(1).
62
fence. 208 No sentence of fine of less than one rupee fine and of imprisonment
for less than one day is to be imposed. 209
Imprisonment for Life

The offender should be imposed with punishment of imprisonment for the
whole of his or her natural life if the offender is involved in any of the follow-
ing offences:210
a. murder after inflicting cruelty,
b. torture or inhumane conduct,
c. murder after hijacking an aircraft or making explosion,
d. murder after abduction or taking of hostage,
e. caused death by poisoning drink and food of public use,
f. committed genocide or an offence with the objective of committing geno-

cide,
g. caused death by rape.
Computation of Imprisonment for Life
Except in the circumstance referred to in section 40211, the term of sentence of

imprisonment for life is twenty five years. 212
One and Half Punishment for Consolidated/Integrated Offence 213
Where a person, at the time of judgment by a court, is held to have committed

more than one offence in a single incident/transaction or different offences in
208
Id. § 40(2).
209
Id. § 40(3).
210
Id. § 41.
211
Except in the offences of : murder after inflicting cruelty, torture or inhumane conduct, murder after
hijacking an aircraft or making explosion, murder after abduction or taking of hostage, caused death by
poisoning drink and food of public use, committed genocide or an offence with the objective of com-
mitting genocide and caused death by rape.
212
National Penal Code, 2017, § 42.
213
Id. § 43(1).
63
different incidents, such person is deemed to have committed an integrated of-
fence. The offender who commits such an integrated offence is subject to the
sentence for the offence punishable by the maximum punishment and to addi-
tional punishment of one half of that punishment specified for such offence. 214
Additional Punishment for Offender of Heinous Crime and Recidivist
If a person sentenced for an offence commits another heinous or grave offence

before the expiry of a period of five years after he or she has served that sen-
tence or been granted clemency, he or she should be considered to be a recidi-
vist.215 A recidivist is liable to a sentence that is up to double the sentence im-
posable for the last offence that he or she has committed. However this provi-
sion is not applicable 216 to an offender who has been sentenced to imprison-
ment for life in accordance with Section 41 217.
Punishment Imposable on Children
A person who has committed an act constituting an offence under the law will
not be liable to any sentence if that person has not attained the age of ten years
at the time of the commission of such act. 218 In imposing the sentence of im-
prisonment on a person who is ten years of age or above ten years but below
fourteen years of age, such person may be sentenced to imprisonment for a
maximum of six months or sent to a reform home for a maximum of one year
instead of such imprisonment.219
Where a person who is fourteen years of age or above fourteen years but below
sixteen years of age commits any offence punishable by the sentence of im-
prisonment, such person is liable only to half the sentence imposable by law on
a person who has attained majority. 220
214
Id. § 43(2).
215
Id. § 44(1).
216
Id. § 44(2).
217
Supra note 210.
218
NPC, 2017§ 45(1).
219
Id. § 45(2).
220
NPC, 2017, § 45(3).
64
Where a person who is sixteen years of age or above sixteen years but below
eighteen years of age commits any offence punishable by the sentence of im-
prisonment, such person is liable to two-thirds of the sentence imposable by
law on a person who has attained majority. 221
Imprisonment for Fine
The offender who is unable to pay a fine imposed on him or her can be sub-
jected to imprisonment.222 The term of imprisonment in case of such inability
to pay fine should be determined as follows: 223
a. In determining the sentence of imprisonment in default of payment of a fi-

ne in every case of an offence punishable with both imprisonment and fine,
the term of imprisonment should be determined as not to exceed 10 years.
b. Where an offence is punishable with either imprisonment or fine or with

both in which the offender is sentenced to a fine only, in determining the
sentence of imprisonment in default of payment of such fine, the term of
imprisonment is to be so determined as not to exceed ½ of the maximum
term of imprisonment that can be imposed for such an offence.
c. Where an offence is punishable with fine only, in which the offender is

sentenced to a fine, in determining the sentence of imprisonment in default
of payment of such fine, the term of imprisonment should be so determined
as not to exceed 2 years.
However, the following provisions will apply to the imposition of a sentence of

imprisonment for non-payment of a fine on a child below (18) eighteen years
of age:224
a. In the event of non-payment of fine for an offence punishable with fine on-
ly or with either fine or imprisonment, the child should not be subjected to
imprisonment and the fine should be remitted.
221
Id. § 45(4).
222
Id. § 46(1).
223
Id. § 46(2).
224
Id. § 46(3).
65
b. Where an offence is punishable with imprisonment or fine or with both, in
which the offender is sentenced to a fine only, in determining the sentence
of imprisonment in default of payment of such fine, the term of imprison-
ment is to be so determined as not to exceed 3 months.
c. In determining the sentence of imprisonment to be imposed on a person

who is above fourteen but below eighteen years of age, the term of impris-
onment is to be so determined as not to exceed one half of the sentence of
imprisonment imposable on a person above eighteen years of age.
Remission of Sentence
Where any offender assists in the collection of evidence or apprehension of

other accused person or gang or accomplice, upon having confessed the of-
fence committed by him or her, in relation to such offence or assist to the in-
vestigating or prosecuting authority or the court, a maximum of fifty percent of
the sentence imposable under law for such offence may be remitted for such
offenders.225
However the following offenders are not entitled to the remission of sen-
tence:226
a. who has once obtained remission,
b. who has not completed three years' period of the service of the sentence of
imprisonment for an offence punishable with imprisonment, of which he or
she has been convicted,
c. who has once been sentenced for the same nature of offence as in which the
remission of sentence is sought.
In granting a remission of sentence it should be given to, at which stage of in-

vestigation or trial the accused has confessed the offence and in what circum-
stances he or she has made such confession. 227
225
Id. § 47(1).
226
Id. § 47(2).
66
Analysis
The new codified law Criminal Offences (Sentencing and Execution) have attempted
to reform the traditional sentencing system and have accepted the principles of a re-
formatory system of punishment. The separate Act relating to sentence determination
and execution of sentence is a major achievement and was much necessary. Separate
hearing for sentence determination is a landmark in the sentencing process of Nepal.
Separate sentence hearing has its own ‘pros’ and ‘cons’. The sentencing act has
adopted the provision of awarding sentence on the basis of gravity of offence and de-
gree of responsibility of offender in committing offense. Considering the objectives of
punishment while awarding sentence and also seeking alternatives to punishment of
imprisonment has been highly prioritized by the law. Also, the new codes have adopt-
ed the principal ‘best interest of child’ and provisioned that there will be no impris-
onment to child except if the child has committed grave offence and offence commit-
ted repeatedly. The newly implemented sentencing laws of Nepal have introduced
provisions such as community service, open prison, parole and probation, etc. These
provisions are limited only to the black letters of law. Procedures, directives for the
implementation of these reformatory provisions have not been made. Though the sen-
tencing Act has enshrined imprisonment as a last resort of the punishment, the same
traditional system of sending offenders to the prison is in practice. Lack of implemen-
tation mechanism of the newly codified law has also become a barrier to adopt the
newly introduced reformative punishments. The major challenge is that all the provi-
sions of the newly introduced Sentencing Act haven’t come into force as the Act re-
quires some of the provisions will come into force only after the publication of notice
by GON in Nepal Gazette for the entry into force of such provisions. These provisions
are concerned with the reformative model of punishment adopted by the new sentenc-
ing Act. The regulation of the Sentencing Act has also been drafted for the implemen-
tation of the provisions of parent Act.
The National Penal Code has recognized six types of punishment as well as a wide
range of mitigating factors and aggravating factors that affect the severity of the of-
fense has been provisioned under NPC which are the major basis for determination of
the appropriate quantum of punishment.
227
Id.§ 47(3).
67
68
CHAPTER-IV
ROLE OF NEPALESE JUDICIARY IN THE DEVELOP-
MENT OF EFFECTIVE SENTENCING MECHANISM
Judiciary is an important organ in interpreting the constitution and law to administer
the criminal justice system in the state. The Supreme Court, being an apex body of
justice dispensation, has laid down a number of principles in relation to the criminal
justice system through the overall criminal justice administration. The Supreme Court
has issued numerous principles in relation to the sentencing mechanism. The princi-
ples laid by Supreme Court in the development of effective sentencing mechanism in
Nepalese Justice System can be discussed below:
Abdul Jawar Musalman v. HMG228
The Supreme Court refused to apply No 14 of the Chapter on Homicide wherein the
defendant had killed the deceased using an iron rod with pointed end. However, the
court mitigated the punishment on the ground that the defendant struck the deceased
with the hot iron rod without any earlier enmity but in horror after hearing the tumult
that the robbers were coming. The punishment has been reduced by applying a miti-
gating factor in this case.
Lal Bahadur Kami v. His Majesty's Government of Nepal229
The Supreme Court Division Bench mitigated the sentence of the defendant wherein
the deceased was killed by poisoning. The court mitigated the sentence on the ground
that the defendant had no earlier enmity with the deceased to kill him by poisoning.
The court held that " It has been obvious that the defendant Lal Bahadur had put
something in the meat of the deceased taking it out from the pocket of his waist coat
and Bir Man due to eating that meat. Since there seems no earlier enmity of the de-
fendant with the deceased Bir Man causing to kill him by poisoning, therefore, the
sentence is hereby mitigated and the defendant shall be punished with the imprison-
ment for eight years.
228
Abdul Jawar Musalman v. HMG, NKP, 2035 BS, Vol7, Decision No 1185.
229
Lal Bahadur Kami v. HMG, NLR 2038 BS, Vol. 2, Decision No 1440.
69
GON V.S Sher Bahadur Lama aka Shere 230
In case the minimum and maximum extent of punishment is determined by the Act
itself, the discretionary power given to the court to punish in proportion to the offense
should be exercised in a just manner by determining the amount of the offense on the
basis of the severity of the offense.
HMG v. Shanti B.K.231
The Supreme Court has laid down some significant principles regarding sentence de-
termination and mitigating sentence in this case relating to homicide. The court laid
down the following principles as guidelines for determining the sentence:
1. Whether or not the murder has been caused in a premeditated manner and
with a motive of killing,
2. Murder with cruelty and torture,
3. Nature and degree of crime,
4. The motive and social background of the offender
5. Circumstances around commission of crime,
6. The age of the offender,
7. Physical, mental, economic and family condition of the offender,
8. Opinion and feeling of the victim,
9. Damage or loss caused to the victim and society,
10. Past criminal record of the offender,
11. Whether or not the accused has assisted the judicial process by revealing the
truth in the court,
230
GON V.S Sher Bahadur Lama aka Shere, NKP, 2065 Vol. 7, Decision no. 7996.
231
Shanti B.K. v GON, N.K.P 2061, Vol. 6 , Decision no: 7399.
70
12. Whether or not the offender has experienced the feeling of repent after the
commission of the offense,
13. Whether or not the crime has been committed at the instigation or under the
pressure caused by someone else,
14. Appropriate factors relating to the particular case.
GON v. Kari Sada Musahar232
The Supreme Court in this case has stated that when the court mitigates the sentence
of the convict or imposes maximum punishment, the system of imposing or mitigating
the traditional imprisonment without any reason should be abolished and following
things should be considered:
1. Circumstances during the commission of crime, preparation, conspiracy,

planning
2. Activities of the accused
3. Accused’s involvement with criminal gang/groups
4. Whether it is organized crime or not
5. Whether the offence was committed with cruelty or torture
6. Weapons or devices used by the accused while committing crime
7. Age of the accused, character, harm caused to the victim and victim’s fam-
ily
8. Possibility of non-occurrence of crime
GON v. Bipin Mahara et.al.233

The state can punish any offender pursuant to law only by way of fine or imprison-
ment. The state has no authority to beat or torture anyone for punishment.
232
GON v. Kari Sada Musahar NKP,2063 , Vol. 8, Decision no. 7752.
233
GON v. Bipin Mahara et.al NKP, 2067, Vol. 5, Decision no. 8374.
71
GON v. Dabin Gurung et.al.234
Even if convicted of murder, it would be fair to establish a balance between guilt and
punishment that is proportionality of offense and punishmet, taking into account the
circumstances of the former ibi or enemity, the nature of the incident, the pre-existing
criminal character, the seriousness of the incident, the nature of the preparation and
planning, the offender's age, physical condition and family background.
Analysis
Judiciary is an important organ in interpreting the constitution and law to administer
the criminal justice system in the state. The Supreme Court, being an apex body of
justice dispensation, has laid down a number of principles in relation to the criminal
justice system through the overall criminal justice administration. The above study of
the cases shows that Nepalese Judiciary has laid down numerous grounds to be taken
in consideration while determining the quantum of punishment. The Supreme Court
has issued grounds for mitigating the punishment. There is no uniformity between the
judges in determining the sentences in similar kinds of cases with similar severity.
This is due to lack of competency, lack of training and proper implementation of sen-
tencing guidelines issued by the Supreme Court. Due to weak investigation and lack
of proper pre-sentencing reports, it is difficult for a sentencing judge to determine the
appropriate quantum of punishment. The Supreme Court has also issued sentencing
guidelines for the judges with the motive of bringing uniformity in the determination
of sentence.
234
GON v. Dabin Gurung et.al NKP, 2067, Vol. 3, Decision no.8330.
72
CHAPTER- V
FINDINGS, CONCLUSION, RECOMMENDATIONS
5.1 Findings
Based on the analysis done in previous chapters, the findings from this research are
discussed below:
● The new codified laws have attempted to reform the traditional sentencing
system and have accepted the principles of a reformatory system of punish-
ment. For the first time in Nepal, the sentencing law appears to have accepted
reformative forms of punishment and reformative programs.
● The separate Act relating to sentence determination and execution of sentence

is a major achievement and was much necessary.
● Separate hearing for sentence determination is a landmark in the sentencing

process of Nepal. Separate sentence hearing has its own ‘pros’ and ‘cons’.
During sentence hearing after the conviction there is possibility of non-
cooperation of the defendant side in the determination of the sentence as they
have already been convicted.
● The newly implemented sentencing laws of Nepal have introduced provisions

such as community service, open prison, parole and probation, etc. However,
the status of implementation of these provisions is almost nil. These provisions
are limited only to the black letters of law. Procedures, directives for the im-
plementation of these reformatory provisions have not been made.
● Though the sentencing Act has enshrined imprisonment as a last resort of the
punishment, the same traditional system of sending offenders to the prison is
in practice.
● Lack of implementation mechanism of the newly codified law has also be-
come a barrier to adopt the newly introduced reformative punishments.
73
● There is no uniformity between the judges in determining the sentences in
similar nature of cases with similar severity. This is due to lack of competen-
cy, lack of training and proper implementation of sentencing guidelines issued
by the Supreme Court.
● Due to weak investigation, prosecution demanding punishment to the maxi-

mum extent and lack of proper pre-sentencing report, it is difficult for a sen-
tencing judge to determine the appropriate quantum of punishment.
● The major challenge is that all the provisions of the newly introduced Sentenc-
ing Act haven’t come into force as the Act requires some of the provisions will
come into force only after the publication of notice by GON in Nepal Gazette
for the entry into force of such provisions. These provisions are concerned
with the reformative model of punishment adopted by the new sentencing Act.
● Judicial discretion has been provided to the judges leaving the discretionary
power to determine the quantum of punishment between maximum and mini-
mum extent of punishment.
● The law has recognized the principle of proportionality, principle of individu-

ality, principle of parsimony and principle of restraint necessity in the deter-
mination of punishment.
● Provision of compensation to the victim of offence by the offender is an inte-

gral part of criminal justice administration.
● Wide range of mitigating and aggravating factors has been determined by the
law as well as the judiciary has also established different bases for mitigating
the punishment in different cases.
● The current sentencing law and policy of Nepal has provisioned for the system
of open prison but in practice this provision hasn’t been implemented. Open
prison has been established in only one district of Nepal.
● The case analysis shows that justification of punishment is lacking in the

judgments.
74
5.2 Conclusion
Today, a society without crime and a state without punishment cannot be imagined.
Punishment is considered as the last weapon to regulate and control society. Punish-
ment is necessary to prevent the commission of crime and also to deter the potential
offenders from committing the crime. The nature and extent of punishment is reflect-
ed in the attitude of the society and state towards any criminal activity. Sentencing is
crucial in criminal justice administration because it helps to build and sustain public
trust in the system. Sentencing is thought to be a barometer of public trust in the crim-
inal justice system. The public's faith in the administration of criminal justice is de-
termined by how judges issue sentences. People's trust in the criminal justice system
erodes when they believe there is no uniformity in sentence. If they believe the court's
penalties are too light, the victim will be dissatisfied with the system's operation, and
as a result, people may believe that vengeance is the greatest way to get happiness. It
signifies that the criminal justice system has failed to address the needs and concerns
of the community.
The introduction of a distinct sentencing act, as well as substantive and procedural

legislation that incorporates modern modifications to prior legal structures and inter-
national standards is a significant achievement in the criminal justice system's history
of Nepal. This is, in fact, the climax of a seemingly endless effort to codify and mod-
ernize the normative framework. Though having entire normative structures that en-
compass substantive, procedural, and sentencing issues is a moment of great joy, there
are still some technical and even substantive areas that need to be addressed. This en-
actment of separate sentencing law is the result of more than six decades of hard
work. It appears to have embraced a variety of reformatory punishments, such as
community service. In the criminal justice system, it has provided both a challenge
and an opportunity. To apply the reformative forms of sentences, it is required to im-
prove competency and reform institutional structures, as well as create some new in-
stitutions. As a result, it is vital to increase institutional capacity as well as reform the
normative framework to keep up with changing needs.
75
5.3Recommendations
● Lack of implementation mechanism of the newly codified law has also be-
come a barrier to adopt the newly introduced reformative punishments there-
fore it is necessary to make arrangements for the implementation of all the
provisions of the new sentencing Act of Nepal.
● To make proper guidelines, procedures, directives for the implementation of

reformatory punishment mechanisms recognized by the Nepalese sentencing
law.
● To provide capacity building training, seminars to the judge in relation to the
guidelines to be followed during the sentence determination process in order
to bring uniformity in the sentence in the same nature of cases.
● To make institutional as well as financial arrangements for the application of
reformative models of punishment.
● To substitute the prison system of punishment by the application of other re-
habilitative models and reduce the over-crowding of prisons.
● In the absence of implementation of provision relating to Parole officer and
Probation officer the pre-sentence report is prepared by the ordinary staff of
the court who lack proper competency therefore it is necessary to implement
parole and probation along with appropriate provisions to ensure restitution of
victims.
● To provide proper details about the offender, nature of offense, circumstances
in which the offense was committed, family background of the offender, etc.
in the pre-sentencing report.
● To apply effectively the presumptive model of sentencing.
76
BIBLIOGRAPHY
Constitution and Laws
● Constitution of Nepal, 2072 B.S
● Criminal Offence (Sentence Determination and Execution) Act, 2074 B.S
● National Penal Code, 2074 B.S.
Books
● Ahamad Siddique, CRIMINOLOGY, PROBLEM AND PERSPECTIVE

(4thed.) Eastern Book Company, (1997).
● Ahamad Siddique, CRIMINOLOGY, PROBLEM AND PERSPECTIVE

(6thed.) Eastern Book Company, (2009).
● Allen Manson, THE LAW OF SENTENCING, IRWIN Law Inc. (2001).
● Andrew Ashworth, SENTENCING AND CRIMINAL JUSTICE (4th ed.)

Cambridge University Press, Cambridge, (2005).
● David A. Thomas, PRINCIPLES OF SENTENCING: THE SENTENC-

ING POLICY OF THE COURT OF APPEAL CRIMINAL DIVISION,
Heinemann (1970).
● David Boonin, THE PROBLEMS OF PUNISHMENT (1st ed.) Cambridge

University Press, (2008).
● Davies, Croall & Tyrer, CRIMINAL JUSTICE: AN INTRODUCTION

TO CRIMINAL JUSTICE SYSTEM IN ENGLAND AND WALES, (2nd
ed.) Longman; (1998).
● Dean John Champion, SENTENCING: A REFERENCE HANDBOOK,

CONTEMPORARY WORLD ISSUES, ABC-CLIO, Santa Barbara, Cali-
fornia, (2007).
● Glanville Williams , TEXTBOOK OF CRIMINAL LAW (2 nd ed.) .(2008).
77
● Gyaindra Bahadur Shrestha,MulukiAparaadh (Samhita), Ain 2074, Muluki
Faujdaari Kaaryawidhi (Samhita), Ain, 2074 and Faujdari Kasur (Sajaya
Nirdhaaran Tatha Karyanwoyan) Ain, 2074, Mul Dafaa Sahit Ek Tippani
● Madhav Prasad Acharya, APRADH SHASTRA, Ratna Pustak Bhandar:

Kathmandu (2067 B.S).
● Mahesh Sharma Poudel, Sajaaya Nirdhaaran ra Kaaryaanoyan.
● Marin P. Golding, PHILOSOPHY OF LAW (2nd ed.), Prentice Hall

(1975).
● Mark R. Reiff, PUNISHMENT, COMPENSATION and LAW (1st ed.),

Cambridge University Press, Cambridge (2005).
● Mirko Bagaric, PUNISHMENT AND SENTENCING: A RATIONAL

APPROACH , Cavendish Publishing Limited (2001).
● N.V. Paranjape, CRIMINOLOGY AND PENOLOGY WITH VICTIM-

OLOGY.
● P.J. Fitzerland, SALMOND ON JURISPRUDENCE (12 thed.) Sweet and

Maxwell, London (1966).
● Rabie, Strauss & M.C. Mare, PUNISHMENT: AN INTRODUCTION TO

PRINCIPLES 23, (5th ed.) Lex Patria Publishers (1994).
● Subash C. Gupta, CAPITAL PUNISHMENT IN INDIA, Deep & Deep

Publications, New Delhi (1986).
● SurendraBhandari, Faujdaari Kaanoonko Ruprekha.
● Wayne Lafave & Austin W. Scott Jr, CRIMINAL LAW 24 (1 sted.) West
Publishing Co. (1986).
Articles
● Dr. Hari BanshaTripathi , Sajaya Nirdharan Sambandhi Niti: Siddhanta ,

Abhyaas ra Sudhaarko Aawashyakta, NATIONAL JUDICIAL ACADE-
MY JOURNAL (2067 B.S)
78
● Seymour L. Halleck, Responsibility and Excuse in Law and Medicine: A
Utilitarian Perspective, 1986,
● Nick Tilley and others, Problem-Solving Street Crime: Practical Lessons

from the Street Crime Initiative ,London, Home Office Research Devel-
opment and Statistics Directorate Room, (2004).
● Dr. Rajit Bhakta Pradhananga and Shreeprakash Upreti, An Overview of

Concept and Principles of Sentencing Process, POKHARA LAW RE-
VIEW.
● Dr. Rajit Bhakta Pradhananga and Shreeprakash Upreti, Historical Evolu-

tion of Punishment System in Nepal, NYAYADOOT, English Special Is-
sue, Nepal Bar Association, Kathmandu (2008).
Website
● https://infogalactic.com/info/Punishment
● https://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf .
● https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3863&context=lc
p
● https://sclsbd.org/wp-content/uploads/2019/06/12.-Application-of-
Reformative-Theories-Akiful-Islam.pdf.
● https://www.counsellingsydney.com.au/about-counselling/therapeutic-
approaches/
● https://www.justice.gc.ca/eng/rp-pr/jr/rpps-ropp/p4.html
● www.nkp.gov.np
● www.worldcat.org/nja-journal/ocic
79
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Sentencing Mechanism Under Nepalese Criminal Justice System

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1.1 General Background 1

1.2 Statement of Problem 3

1.3 Objectives of the Study 3

1.4 Significance of the Study 4

1.5 Scope of the Study 4

1.7 Review of Literatures 4

1.8 Organization of the Study 6

CONCEPTUAL FRAMEWORK ON SENTENCING 8

2.1 Concept of Sentencing 8

2.2 Approaches of Sentencing 11

2.2.1 Punitive Approach 11

2.2.1.1 Theory of Retribution 12

2.2.1.2 Theory of Deterrence 12

2.2.1.3 Theory of Incapacitation 13

2.2.2 Therapeutic Approach 14

2.2.2.1 Theory of Rehabilitation/Reformation 17

2.2.2.2 Theory of Restoration 18

2.2.3 Preventive Approach 18

2.3 Sentencing Models 19

2.4 Principles of Sentence Determination 20

2.5 Sentencing and Human Rights 22

3.2.1 Criminal Offences (Sentencing and Execution) Act, 2017 32

3.2.2 National Penal Code, 2074 B.S 59

ROLE OF NEPALESE JUDICIARY IN THE DEVELOPMENT OF EFFECTIVE

FINDINGS, CONCLUSION, RECOMMENDATIONS 73

Constitution and Laws 77

Crime is a universal phenomenon. It has always been an integral part of civilization.

1.2 Statement of Problem

1.3 Objectives of the Study

2. To identify the approaches and models of sentencing adopted in Nepalese Criminal

3. To determine the challenges in the implementation of sentencing laws in Nepal.

4. To analyze the strengths and weaknesses of the sentencing mechanism in Nepal.

5. To identify the role of the judiciary in the effectiveness of sentencing in Nepal.

1.5 Scope of the Study

This research dissertation adopts doctrinal as methods of research to collect infor-

1.7 Review of Literatures

In the book, Faujdaari Kaanoonko Ruprekha written by Surendra Bhandari, the

In the book Sajaaya Nirdhaaran Ra Kaaryaanoyan , written by Mahesh Sharma

Joel Samaha (University of Minnesota) in his book CRIMINAL JUSTICE has

In the book entitled Criminal Justice: An Introduction to the Criminal Justice

1.8 Organization of the Study

Punishment under law is the authorized imposition of deprivations of freedom or pri-

● to promote respect for the law,

● to provide just punishment for the offense,

● to deter the defendant from future criminal conduct,

● to protect the public from the convicted offender, and

● to provide the convicted offender with educational or vocational training, or

(2) Deterrence and Prevention,

(3) Just deserts and Justice,

(4) Incapacitation and Control, and

(5) Rehabilitation and Reintegration.

2.2.1 Punitive Approach

Punitive approach is the ancient and traditional approach of punishment. It examines

2.2.1.2 Theory of Deterrence

2.2.1.3 Theory of Incapacitation

Though this approach is emerged as an alternative to the traditional approach of

● The offender must display the potential for moral improvement.

2.2.2.2 Theory of Restoration

Though this approach is emerged as an alternative to the traditional approach of