Case Explained: Bid to withdraw cases against Lamichhane may hit all money laundering, organized crime cases pending in courts – myRepublica – The New York Times Partner, Latest news of Nepal in English, Latest News Articles – Legal Perspective

KATHMANDU, Jan 17: With the government moving ahead with a process to withdraw cases—including cooperative fraud, organized crime, and money laundering—currently under consideration by courts against Rastriya Swatantra Party (RSP) chair Rabi Lamichhane, legal experts say similar cases pending in various courts across the country are also likely to be affected. While criminal law prioritizes the offense rather than the individual, the government’s approach in Lamichhane’s case appears to depart from this principle.

Under existing legal provisions, the government cannot directly withdraw cases that are sub judice. Such action must be initiated through the Office of the Attorney General. In Lamichhane’s case, the government has approved the concerned District Government Attorney Offices, through the Attorney General’s Office, to move forward with the process of withdrawing the cases.

Legal experts warn that by initiating the withdrawal process in a person-centric manner rather than offence-centric, the Attorney General’s Office has set a precedent that could weaken similar cases pending in courts nationwide.

Advocate Ananta Raj Luitel said withdrawing cases against Lamichhane by focusing on the individual would constitute a wrong practice. “The Attorney General’s Office has posed a threat to the rule of law. This will affect and weaken all organised crime and money laundering cases pending in courts across the country,” Luitel said.

Similarly, advocate Radhika Khatiwada said criminal cases worldwide are offence-based and must be independently adjudicated by courts. “Cases under consideration by courts should be resolved by the courts themselves. Amending cases through the Attorney General’s Office by exploiting legal loopholes is not a good practice. This will have an impact on all government attorney offices and courts,” she said.

The government had sought an opinion from the Attorney General’s Office on withdrawing the cases against Lamichhane. The Office submitted its opinion on Wednesday.

Cases against Lamichhane are pending in five district courts. Only the Chitwan District Government Attorney Office has filed a cooperative fraud case against him. In the remaining four district courts, cases include cooperative fraud along with money laundering and organised crime.

Under government pressure, the Attorney General’s Office has initiated the process to withdraw money laundering and organised crime cases filed against Lamichhane in the Kathmandu, Kaski, Chitwan, and Rupandehi district courts. Citing legal provisions that require court approval for case withdrawal, preparations are underway to seek court permission and pursue reconciliation with victims.

Although victims have filed petitions at the Attorney General’s Office opposing the withdrawal of money laundering and organised crime cases against Lamichhane, the Office has ignored these petitions. Instead, it has issued note orders favouring Lamichhane and forwarded them to the concerned District Government Attorney Offices to proceed with the withdrawal process.

As soon as office hours begin on Friday, the process to withdraw cases against Lamichhane will move forward. For this, the respective District Government Attorney Offices must file applications at the district courts. After hearing all arguments, the courts may allow withdrawal if deemed appropriate.

Section 116 (a) of the National Criminal Procedure Code Act, 2074, lists money laundering cases among those that should not be withdrawn. Clause (c) of the same section states that if withdrawing a case adversely affects an individual’s property rights, the case cannot be withdrawn without that individual’s consent.

If courts issue orders allowing withdrawal in Lamichhane’s case, victims will have the right to seek review in higher courts. The most complex case against him is in Rupandehi. Based on an investigation by the Butwal Area Police Office, the Rupandehi District Government Attorney Office filed a cooperative fraud case in the district court against Lamichhane and 28 others.

The charge sheet claims misappropriation of Rs 861.823754 million belonging to 1,831 depositors. Investigations found that Rs 142.9 million of cooperative funds were invested in Gorkha Media Network Pvt Ltd, of which Rs 20 million was loaned in Lamichhane’s name.

According to a note order signed by Attorney General Sabita Bhandari, charges of organised crime and money laundering—other than cooperative fraud—should be removed through amendment of the charge sheet under Section 36 of the Criminal Procedure Code, to keep open the possibility of reconciliation and refund of depositors’ money.

The Attorney General’s Office forwarded the note order on Lamichhane’s application for case withdrawal to the concerned District Government Attorney Offices on Wednesday.

The order states that Lamichhane claimed he was prosecuted with a political vendetta, and that, considering this claim and the conditions under Section 36 of the Criminal Procedure Code, approval was granted to amend the charges. Accordingly, organised crime and money laundering charges against Lamichhane in cases pending at the Kaski, Kathmandu, Rupandehi, and Parsa district courts are to be removed, while fraud and cooperative fraud charges remain, similar to the case in Chitwan District Court.

The order further directs that applications be filed in the respective district courts and instructs the District Government Attorney Offices in Kaski, Rupandehi, Kathmandu, and Parsa to proceed accordingly.

‘Threat to rule of law’
The Attorney General’s Office should not act to please an individual. Cases against Rabi Lamichhane are currently under court consideration and were prosecuted by District Government Attorney Offices under the Attorney General’s Office. In criminal cases worldwide, the focus is on the offence, not the individual. The Attorney General’s Office failed to treat this seriously. It has become the biggest threat to the rule of law. This will create instability in money laundering and organised crime cases across the country.

The message sent is that cases change with changes in government. This weakens not only money laundering cases but also ongoing prosecutions, allowing individuals to escape accountability easily. If the government itself files charges and then withdraws them, all criminals will walk free. Such decisions without substantive differences in cases are not positive.
(Luitel is an advocate.)

‘Should not be person-centric’
Withdrawing cases under court consideration against Rabi Lamichhane is unnatural and appears planned. Under Section 116 of Chapter 12 of the Criminal Code, the charges against Lamichhane cannot be amended. The instruction relies on Section 36, which allows amendment of charge sheets to correct general errors, not for special treatment of an individual. Such selective amendment or case alteration is not normal.

In Lamichhane’s case, liability has been accepted, not merely bail posted. Accepting liability amounts to accepting the offence. Organised crime and money laundering charges are intrinsically linked to fraud. These should be independently assessed by courts. Pressuring government attorneys to prevent court deliberation only worsens the situation.

Nepal is currently on the grey list. If such cases are withdrawn, the country risks being blacklisted. Criminal law focuses on offences, not individuals.
(Khatiwada is an advocate.)

What Section 116 says
Section 116: Cases not to be withdrawn—
(1) Cases once filed in court under Schedule 1 or Schedule 2 cannot be withdrawn.
(2) Notwithstanding Sub-section (1), cases other than the following may be withdrawn:
(a) Cases related to fake passports or citizenship, immigration, corruption, human trafficking, drug trafficking, wildlife crimes, poisoning of consumables, murder by poisoning or cruelty, money laundering, and protection of ancient monuments.

What Section 36 provides
Section 36 of the Criminal Procedure Code allows amendment of charge sheets if new or stronger evidence emerges while a case is under consideration. Under Sub-section (1), with the Attorney General’s approval, government attorneys may apply to amend charges by stating reasons. Sub-section (2) allows courts to approve such amendments before delivering verdicts.

Lamichhane sought an amendment under this provision to weaken two charges, enabling easier release on bail.

How Luitel was implicated
The Attorney General’s Office had transferred then Chitwan District Public Prosecutor Shanta Prasad Luitel and initiated an investigation against him, accusing him of errors in prosecuting Lamichhane. The probe faded after a change in government.

Chitwan prosecutors had filed a supplementary charge against Lamichhane and 15 others in the Sahara Savings and Credit Cooperative embezzlement case, excluding organised crime charges. Citing this exclusion, the Attorney General’s Office transferred Luitel and formed an investigation committee, whose findings remain undisclosed.

Now, the same Attorney General’s Office has instructed prosecutors to withdraw organised crime and money laundering cases pending against Lamichhane in multiple district courts.