The Supreme Court (SC) has changed the grounds on which it allowed rape-accused cricketer Sandeep Lamichhane to fly to the United Arab Emirates (UAE) to play cricket after its order was widely slammed.
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 the UAE along with the Nepali national cricket team and the appeal by the Office of the Attorney General (OAG) against the Patan High Court’s order to release him on a bail of Rs 2 million, had ordered on February 27 to allow Lamichhane to go to the UAE.
The grounds for allowing him to go to the UAE that SC Spokesperson Bimal Paudel gave while reading the order, however, were changed when the order was given to the parties of the case the next day.
Paudel had said that the main grounds for allowing Lamichhane to go to the UAE were that no semen was found in the minor’s body, and her roommate’s statement. The order forwarded to the parties the next day, however, mentions that there was no situation to send Lamichhane to judicial custody on the basis of closed-circuit television (CCTV) footage, the health check report of the victim, and Lamichhane’s statement, according to a source.
“The order forwarded to the parties also mentions that it would be inappropriate to stop the defendant from going abroad as he is a national/international player. The order read by the spokesperson mentioned the statement of the victim’s roommate and lack of semen in the victim’s body on the basis of health report as the grounds for not keeping the defendant in custody. Those grounds have now been removed.”
The order given to the parties also mentions the victim’s age, which was not mentioned by Spokesperson Paudel, pointing that there seems to be a dispute as to whether the victim is a minor or not as the defendant claims that she is 19 and not 17 as claimed by her, and adds that the Kathmandu District Court should rule on the issue.
Paudel had said that the case should be fast-tracked as Lamichhane is an international player but the order forwarded to the parties says it should be fast-tracked as it is related to offense about gender violence.
The order given to the parties also includes a new issue. “The District Court has been ordered to provide relief through the interim relief fund as legal professionals of the victim have told the bench that her mental state is not right,” the source added.
Spokesperson Paudel told Setopati that he had only read the draft order not signed by the justices on Monday as there was a hurry. “The order given after the justices finalize and sign on it is official,” Paudel has pointed. “The main part of that order is partial revocation of the Patan High Court’s order and allowing Lamichhane to go abroad to play cricket which has not been changed even now. The grounds also are the same. But there may have been some minor changes in the explanation from the draft order.”
The SC on February 27 also 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 also refused to revoke the bail granted by the Patan High Court.
Hearing on the case could not be completed on February 26 and it continued the next day.
The SC on February 24 had refused to allow Lamichhane to fly to the UAE the next day along with the Nepali national cricket team.
The Patan High Court while granting Lamichhane bail had put five conditions including prohibiting him from going abroad. Lamichhane had moved the SC demanding he be allowed to travel with the national team going to the UAE to play ICC Men's Cricket World Cup League 2 matches against the UAE and Papua New Guinea.
The bench of Justice Ishwar Khatiwada hearing Lamichhane’s petition on February 24 asked the SC administration to schedule a combined hearing of the petition and the appeal by the OAG against the Patan High Court’s order to release 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 a 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.”
