The Supreme Court (SC) has allowed rape-accused cricketer Sandeep Lamichhane to fly to United Arab Emirates (UAE).
The joint bench of Justices Sapana Pradhan Malla and Kumar Chudal after conducting a joint hearing of the petition by Lamichhane, who was released on bail in the case of raping a minor, demanding he be allowed to fly to United Arab Emirates (UAE) along with the Nepali national cricket team and the appeal by the Office of Attorney General (OAG) against the Patan High Court’s order to release him on a bail of Rs 2 million has allowed Lamichhane to go to UAE.
The SC has ordered that Lamichhane should produce himself before the Kathmandu District Court within 15 days of completion of any tournament featuring Nepal abroad. The permission to go abroad to play cricket will be revoked if he fails to do so.
It has also refused to revoke the bail granted by the Patan High Court.
Hearing on the case could not be completed on Sunday and it continued on Monday.
The SC on Friday had refused to allow Lamichhane to fly to United Arab Emirates (UAE) on Saturday along with the Nepali national cricket team.
The Patan High Court while granting Lamichhane bail had put five conditions including prohibiting Lamichhane from going abroad. Lamichhane had moved the SC demanding he be allowed to travel with the national team going to UAE to play ICC Men's Cricket World Cup League 2 matches against UAE and Papua New Guinea.
The bench of Justice Ishwar Khatiwada hearing Lamichhane’s petition on Friday asked the SC administration to schedule a combined hearing of the petition and the appeal by the Office of Attorney General (OAG) against the Patan High Court’s order to release rape-accused Lamichhane on a bail of Rs 2 million.
The joint bench of Judges Dhruba Raj Nanda and Ramesh Dhakal hearing on the appeal against the Kathmandu District Court’s order to send Lamichhane to judicial custody in the case of raping a minor on January 12 decided to revoke the Kathmandu District Court’s order citing lack of grounds to keep him in custody. He was released on bail of Rs 2 million the next day.
The OAG in its appeal has argued that the Patan High Court’s order to release Lamichhane on bail is against legal provisions and the SC’s interpretation during bail hearing in cases of similar nature.
Clause 27 of the National Criminal Procedure (Code) Act, 2017 has clear provision for holding the accused of any offense which is punishable by imprisonment for a term exceeding three years in detention if based on the evidence available the accused appears to be guilty of the offense or there is any reasonable ground, based on such evidence, to believe that such person is guilty of the offense.
But Lamichhane was released on bail despite sub-section 3 (d) of Section 219 of the National Penal (Code) Act, 2017 stating that a person who commits rape shall be liable to imprisonment for a term of 10 to 12 years if the woman is 16 or above 16 years of age but below 18 years of age. The victim in the case is 17 years.
The Patan High Court ordered Lamichhane’s release on five conditions. He was to be sent back to prison if found to have violated those conditions.
The court had prohibited Lamichhane from traveling abroad. He was also required to obtain permission from the District Police Range Kathmandu for leaving the Kathmandu Valley.
The court had also asked the police to monitor his activities.
Lamichhane’s lawyers had appealed against the Kathmandu District Court’s order on November 4 to send him to judicial custody until the case is decided. Lamichhane had been kept at the Central Jail Jagannath Dewal.
The Patan High Court earlier had ordered documents from hospital where the victim was born to ascertain her actual age after Lamichhane's defense alleged that she was not actually a minor.
The District Government Attorney’s Office (DGAO), Kathmandu had registered a case against Lamichhane charging him with raping a minor.
The District Police Range, Kathmandu and the Metropolitan Police Circle, Gaushala had submitted the investigation report at the DGAO on October 21 after completing their joint investigation against Lamichhane. However, a case could not be filed against him then due to the Tihar holidays.
Police had investigated against Lamichhane under Section 219 of the National Penal (Code) Act, 2017 after a 17-year-old girl filed a rape complaint against him.
The Kathmandu DGAO has demanded a prison sentence of up to 12 years against Lamichhane as per sub-section 3 (d) of Section 219, which states that a person who commits rape shall be liable to imprisonment for a term of 10 to 12 years if the woman is 16 or above 16 years of age but below 18 years of age. It has also sought compensation for the victim.
Lamichhane has denied the rape allegation in his statements to the DGAO and police. He has admitted to staying with the girl in the same room of a hotel in Kathmandu on August 21. But he has said that the girl had slept on the bed and he had slept on a chair that night.
Lamichhane, who is the former captain of the Nepal cricket team, has been accused of raping a minor multiple times in a hotel room in Kathmandu on August 21.
A 17-year-old girl filed a rape complaint against Lamichhane at the Gaushala Police Circle on September 6.
The girl has complained that Lamichhane took her out to different places of Bhaktapur and Kathmandu on August 21, a day before Lamichhane left for the bilateral series with Kenya.
She has accused Lamichhane of raping her multiple times in room number 305 of a hotel in Kathmandu Metropolitan City Ward Number 9 that night.
Police have also collected CCTV footage of the night from the hotel. The footage shows that Lamichhane had stayed at the hotel for seven hours.
The girl has claimed in her complaint that she had gone to Nagarkot with Lamichhane on August 17 after being introduced to him through a friend.
Lamichhane left to play in the Caribbean Premier League on August 22 after leading the team to a 3-2 victory in the five-match Twenty20 series against Kenya. Rohit Kumar Paudel then led the Nepali team in the one-dayers in his absence.
An arrest warrant was issued against Lamichhane on September 8 and the Cricket Association of Nepal (CAN) suspended him from the national team the same day after issuance of the arrest warrant.
Nepal Police later also issued a diffusion notice against him through Interpol on September 26.
Section 219 (2) of the National Penal (Code) Act, 2017 states: “Where a man has sexual intercourse with a woman without her consent or with a girl child below eighteen years of age even with her consent, the man shall be considered to commit rape on such woman or girl child.”