Table of Contents
Procedural law governs the methods and processes by which legal rights and duties are enforced. It outlines rules for court proceedings, including filing lawsuits, presenting evidence, and appeals. Unlike substantive law, which defines rights and obligations, procedural law ensures fairness, efficiency, and due process in the legal system. Based on the nature and complexity of the case, different types of procedures are adopted. The summary proceeding is applied in various jurisdictions in minor cases. It is simple and speedier than the regular procedure, which is devised to avoid wasting time in minor cases. Likewise, a special procedure is applied based on the nature, complexity, and impact of the case on society. General or regular procedure is applied in all cases except otherwise prescribed by the law. It can be said that the application of a general or regular procedure is a rule, and the application of a summary or special procedure is an exception. Regular procedure is applied in all cases unless the law prescribes a specific procedure for the particular type of case. Thus, the procedure provided by Nepali law can be classified into three types: general procedure, summary procedure, and special procedure.
TYPES OF PROCEDURE
1. GENERAL PROCEDURE OR REGULAR PROCEDURE
General procedure is that type of procedure which is applied unless law provides otherwise. All the rules and principles of procedural law are strictly applied in general procedure. In the beginning, the general procedure was applied in all types of cases. The general procedure takes a long time for the disposition of cases. It had been realized that following the same type of general procedure in all types of cases was impracticable, and the summary and special procedures were developed.
The procedures incorporated in the National Civil Procedure Code 2074 and National Criminal Procedure Code 2074 are called general procedures. Section 3 (1) of Muluki Criminal Procedure Code provides, "If a separate Act provides for special provisions on the prosecution, investigation, trial, hearing, execution of judgment or any other proceeding or jurisdiction to try case in relation to any particular offence, such matters shall be governed by the provisions contained in such Act, and any provision contained in this Act shall not affect such matters."
Likewise, Section 3(2) provides that the matters of procedures on which special legal provisions have not been made shall be governed by this Act. Therefore, the body of rules that is not categorized under summary procedure, special procedure, or any other particular procedure is called general procedures. Apart from the National Civil Procedure Code and National Criminal Procedure Code, general procedure comprises the rules embodied in the District Court Rules, 2075, High Court Rules, 2073, Supreme Court Rules, 2074, and Administration of Justice Act, 2073.
In civil cases, after the registration of the lawsuit by the plaintiff, notice is given to the defendant to be present at the court. The time limit given to the defendant is 21 days, excluding the date of the journey to the court from the place where he or she is residing as per Muluki Civil Procedure Code, 2074 Sec 101. In criminal cases, the time limit given to the defendant is 15 days, excluding the time required for a journey to the court where he or she resides, as per Muluki Criminal Procedure 2074 Sec 59.
If the parties of the case cannot be present at court within the given period because of a condition beyond the control of the party, the parties of the case may make a petition to the court to extend the date for two times up to 21 days in both civil and criminal cases. The plaintiff's claim shall be dismissed if the plaintiff fails to appear on the appointed date before the submission of the statement of defense as per Sec 141(a) of Muluki Civil Procedure Code 2074.
In civil cases, any party can authorize a person to act on its behalf in the proceeding of a case. The one who gets the power of attorney can make a plea and present proof in court on behalf of the party. In case of regular/general procedure, the district court is supposed to make a final decision within one year from the date of filing of a statement of defense.
The court has to pronounce the judgment of a case to the parties, if they are present, and cause a deed to be executed by them to the effect that they have heard the judgment and attached it with the case-file. In the absence of the, such a deed shall be caused to be executed by the attorney. If any party is not present at the time of pronouncement of the judgment, the court shall proceed to serve the notice of judgment. Such notice shall be accompanied by the time limit for filing an appeal if the judgment is appealable.
A party who is dissatisfied with the judgment of the court of first instance can make an appeal in a concerned appeal hearing court within 30 days from the date of knowledge in a civil case as per Muluki Civil Procedure Code 2074 Sec 205. Dissatisfied party can make an appeal in concerned appeal hearing court within 70 days in criminal case in which the Government of Nepal is the plaintiff and other criminal cases within 30 days from the date of knowledge of the judgment as per Muluki Criminal Procedure Code Sec 134 In context of a civil case, the time limit can be extended for the next 15 days to file an appeal whereas it can be extended to the next 30 days to file an appeal in a criminal case.
2. SUMMARY PROCEDURE
The speedy proceeding applied in cases relating to minor claims or offence is called a summary proceeding. A summary proceeding is a proceeding that is applied generally to minor offences or claims and fast-tracked. The purpose of the summary procedure is to make prompt disposal of small cases applying less formal process. Such procedure saves both time and expense of the parties as well as the court. Disposal of the case from the general procedure takes a long time. The remedy after a long period for minor issues may have no meaning. Therefore, minor cases are tried by following the procedure provided by the Summary Proceeding Act 2028.
The objective of the summary proceeding, according to the preamble of the Summary Proceeding Act, 2028, is to provide for the prompt disposal of minor cases. The preamble reads, " Whereas it is expedient to provide for prompt disposal of small cases by following summary procedures..." The prompt settlement of the case saves both the time and money of the parties. According to Section 3 of the Summary Procedure Act, 2028 the procedure shall be followed in the following cases:
(a) Cases outlined in Schedule -1, or
(b) Civil cases involving the value/price or claimed amount valued at a maximum of One Thousand Rupees or criminal cases carrying a fine of a maximum of One Thousand Rupees or imprisonment for a term not exceeding Six months or both punishments, other than those outlined in Schedule -2.
However, if any special procedure has been provided by any Act in relation to any cases, this procedure shall not be applicable. The procedure prescribed by the Summary Proceeding Act is less formal than the general procedure. A person who wants to initiate proceedings can make a petition setting out evidence. The court entertains such petition as plaint and takes action upon it also taking statement if required. 14. The court has special power to revoke the plaint if the court finds that the claim of the plaintiff or the accusation intended to be made by the plaintiff against the defendant is not based on law and the evidence is not adequate to prove the matters outlined in the complaint as per Summary Act 2028, Sec 5.
After the registration of the lawsuit by the plaintiff, notice is given to the defendant to be present at the court. The time limit given to the defendant is 7 days, excluding the date of the journey in both civil and criminal cases. The defendant can extend the time limit of notice up to 15 days to be present in court as per Summary Act 2028, Sec 8(1).
If the parties of the case cannot be present at court on the given date because of a reason beyond their control, the parties of the case can apply to extend the date for two times up to 15 days for both civil and criminal cases. There is a special provision regarding presenting proof and making a plea. In civil cases, any heir of a joint family and, in criminal cases, anyone can present proof on behalf of the defendant, showing the reason that the defendant cannot make a defense within the time limit, and the court decides the case by examining this evidence as per Summary Act 2028, Sec 9.
In case of a summary procedure, the court of the first instance has to make a final decision within 90 days from the date of filing of a statement of defense per Summary Act 2028, Sec 10. The party who is dissatisfied with the judgment of the court at the first instance may file an appeal within the time limit specified in the law in force. The case in the appeal level shall be disposed of within 90 days after the date of submission of the case file of the case disposed at the first instance.
3. SPECIAL PROCEDURE
The special court is a body under the judiciary that generally addresses only a limited area of law or has a specifically defined jurisdiction. The ordinary courts have general jurisdiction in both civil and criminal matters within their jurisdictional area. However, the special court has limited jurisdiction. The special procedure is usually different from the procedure generally followed by the court of general jurisdiction.
In Nepal, the Special Court Act, 2059, establishes the Special Court and prescribes the procedure to be followed by the Special Court. According to the preamble of the Special Court Act, 2059, the objective of the procedure is to accomplish the trial and decision of the special types of cases in an expeditious, prompt, and effective manner.
According to the Section 3 of the Act, the Government of Nepal may constitute Special Court, having the judges in required number in order to accomplish the trial and decision of the special types of cases in an expeditious, prompt and effective manner, by publishing a notice in Nepal Gazette, in consultation with Judicial Council. The Government of Nepal has to specify the jurisdiction and location of the Special Court. The Government of Nepal may increase or decrease the cases to be tried by a notification published in the Nepal Gazette as per Special Court Act Sec 4.
While sending the summon in the name of a defendant against whom a case has been filed in the Special Court, a summon may be issued by specifying the period of 30 days excluding the time for a journey in case such person is out of the country and of 15 days in case such person is within Nepal as per Special Court Act, Sec 10(1). The time limit of notice or appointed date of appearance can be extended for one time up to 15 days as per Special Court Act Sec 11. The court applying a special procedure has unique or special powers as compared to the courts of regular jurisdiction. Those powers are as follows:
- Summoning the other persons or evidence relevant to a case as deemed appropriate apart from the witness of the plaintiff and defendant,
- Power to issue warrant and record statement of defendant or witness failing to attend within the dates given,
- Conducting the trial of the case by giving a party a due date of presence or by requiring him/her to be present as and when necessary without giving a due date,
- Demanding guarantee from the defendant keeping in view the amount in question or the punishment to be inflicted on him if it is not appropriate to keep him in custody from the evidence collected.
- Conducting a trial of the case by putting the offender in custody in case there is an adequate and reasonable cause to have a trial of the case by putting one in custody,
- May accept the security or guarantee taken by the agency for investigation in course of investigation to the extent it covers.
The Special Court may order the concerned authority to hold any asset of the offender, not to issue a passport to him/her or to hold it if a passport has already been issued, on the ground of the seriousness of the accusation on and condition of offender, degree and nature of crime.
Apart from the Special Court, special procedure is adopted by other courts and tribunals if the related Act makes provision for adopting such procedure. For example, Section 21 A(2) of the Narcotics Drug (Control) Act, 1976 provides that the court shall adopt the procedure under the Special Court Act, 2059. The procedure of serving the summon notice, the procedure calling of witness, presentation and evaluation of evidence is also special.
In cases tried according to special procedure, a summon notice may be issued by specifying the period of 30 days, excluding the time for a journey in case such person is out of the country, and of 15 days in case such person is within the country. The lapsed time period can be extended up to 15 days in case the time period has been lapsed because of the circumstances beyond the control of the party. The Special Court shall have to decide a case generally within six months from the date of filing. The Supreme Court has to decide the appeal within three months of the filing of the appeal.