Interview with Former SSP Rabindra Regmi on Criminal Procedure

According to the Muluki Criminal Procedure Code-2074, the police have been investigating people by arresting them. The practice of the police making public the accused after arresting them has been criticized.

In Nepali society, people are stigmatized when arrested, and the stigma does not disappear even after acquittal. In such a situation, those who return innocent after a certain period are still seen as 'criminals' in society. There is no system in Nepal to compensate those who are acquitted after being arrested.

Former SSP Rabindra Regmi, who has worked for a long time in the investigation of criminal cases, was interviewed by Rato Pati correspondent Rajesh Bhandari on these very issues. Here is the edited excerpt of the interview with former SSP Regmi:

• In Nepal, the practice is to first detain the accused in a criminal offense and then listen to their side. The international practice is to first listen to them, collect evidence, and then detain them. Why is the practice different in Nepal?

In some cases, it is necessary to detain first. Detaining and listening should happen in parallel. If you encounter someone involved in a murder case, and they were fleeing after committing the crime or you meet them within a day or two, then in such a situation, they should be detained first, and then the investigation should proceed after listening to them.

However, if someone is suspected or the person involved in the incident has not been identified due to lack of concrete evidence, then evidence should be collected first in such cases. If the evidence identifies the person, there is no problem in arresting them. Except for a few specific cases, investigators do not have a statute of limitations for collecting evidence. In cases like arson and theft in criminal offenses, there is a statute of limitations, so there is a mandatory situation to identify the suspected person and take the case to court within a certain period.

Except in such cases, taking time to collect evidence and then detaining the accused makes the case very strong. The police should also have the ability to convince others. If the police alone cannot do it, they should be able to explain to other bodies of the criminal justice system, including public prosecutors. We need to explain to society that if we detain them, the investigation will be ruined. Because we haven't earned that much trust from society! We haven't yet earned the trust that we work impartially and do not deviate in any direction.

There is a practice where the victim's side feels a sense of relief when the accused is quickly detained. That is one aspect. Otherwise, if we listen carefully first and then detain, the accused cannot deny the evidence. If detained first, they might deny it. If evidence is presented, the judge cannot acquit them. From a human rights perspective, we can also provide a good justification.

• There is a practice of immediately publicizing the accused as soon as they are arrested. When bodies like CIB publicize through press releases that a certain person has been arrested, does it violate the principle of innocence or not?

That is why nowadays we write 'suspect'. We don't say directly that so-and-so committed the crime; we call them an accused. Until the court makes a final judgment, the person is innocent in the police investigation. It is right not to publicize the accused after arrest. If we do that, citizens will trust us.

Again, there is a peculiar segment in society. That is, if the arrested person is not shown, questions are raised against the investigating officer about why they are not showing them. Various questions are raised on social media about it. While such pressure exists in the world, it is not a big deal for such pressure to arise in a country like Nepal, but according to the principle of innocence, it is better not to publicize the accused.

• Serious crimes are one thing, but in other cases, a person gets stigmatized upon arrest. What role should the state play to remove that stigma when they are proven innocent after a certain period?

There is a big gap in societal understanding. Most fabricated cases are related to rape and abetment to suicide. In cases of death by hanging, we are forced to file cases of abetment to suicide. If the post-mortem report says 'hanging', then in most cases, there is no duty involved in 'hanging'. However, incidents that compel us to file cases of abetment to suicide are continuously occurring.

We have not dared to say that cases of death by hanging should not be pursued as abetment to suicide. In such cases, investigation can be done without arresting people, but we have not been able to practice it. Now there is a strong government; let's not mislead the strong government and develop a practice of investigating without detention. If the criminal justice system is not biased, then questions should not be raised about why the police released someone in cases other than specific ones.

In this situation, investigation becomes more effective without detention. Investigating officers should also develop the ability and skill to collect evidence first without detention. This will also relieve the police from unnecessary pressure in investigations, and they can work with a free mind.

• The lives of those acquitted by the court are lost for a certain period, and their reputation is tarnished. How do they get compensated for it? After arrest, the accused loses reputation and time. How is compensation provided for that?

The state should make laws for this. In developed countries like Japan and America, there have been errors in investigation and prosecution. In a place like ours that relies on manual-based investigation, mistakes can happen, and they have happened. The state should make laws to provide compensation in cases where individuals are proven innocent. The state is the guardian of everyone, isn't it? The agencies that investigate and prosecute are state agencies. If my own organ makes a mistake, the state should be convinced that it has to pay compensation. Even when a pet animal damages someone else's house, we pay compensation in villages. When children under 16 steal or damage someone's property, parents pay compensation. Therefore, the state is the guardian of everyone, and it is necessary to make laws for compensation.

• How can we hold investigating officers and public prosecutors who conduct wrong investigations accountable?

It is not just the police in investigation and prosecution. While investigating, the public prosecutor also tests the collected evidence, from taking statements. The judge should also check and balance by looking at the evidence before issuing an arrest warrant.

The current Criminal Procedure Code has provisions for the judiciary to stop wrong investigations. I don't think only the police are to blame for this, but if all three bodies agree, even an innocent person can be convicted. Therefore, those in management positions must have teamwork, a positive attitude, and empathy. If there is empathy, or rather, compassion in the heart, such mistakes will not happen.

• In major countries around the world, the state pays large compensation for wrongful imprisonment. Why has such a law not been enacted in Nepal yet?

There is awareness that such a law is needed. Information from around the world is now available instantly. Awareness has increased due to digital media. The idea that such a law should now be enacted has developed. Once it is acknowledged that a mistake has been made by a state organ, the state should provide compensation to those who have been wronged.

The reason why it hasn't been enacted yet might be that we haven't had the level of thinking for it. Questions haven't been raised from anywhere. The Civil Code has provisions for some compensation. In criminal matters, there is also a provision for compensation in some offenses. In cases of human trafficking and rape, compensation can be recovered from the perpetrator. There are instances where claims have been made through public prosecutors.