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Unit 1: Meaning and Nature of Criminal Law
Syllabus coverage in this unit
1.1 Concept, Nature and Classification of Crime and Criminal Law · 1.2 Differences between Crime, Tort and Other Civil Wrongs · 1.3 Types of Criminal Liability (1.3.1 Relative Liability · 1.3.2 Strict Liability · 1.3.3 Vicarious Liability) · 1.4 Jurisdiction of Criminal Law (1.4.1 Territorial · 1.4.2 Extra-territorial · 1.4.3 Personal · 1.4.4 Universal · 1.4.5 Extradition)
1.1 Concept, Nature and Classification of Crime and Criminal Law
What is a crime? — the three classic answers (learn all three):
- The legal-positivist (procedural): an act or omission prohibited by law and punishable by the State through criminal process — if the State prosecutes and the court may punish, it is a crime;
- The moral/social: a public wrong — conduct offending the community’s shared moral conscience and threatening social order;
- The sanction-based (Austin): conduct for which the law provides PUNISHMENT — the operative difference from civil wrongs being the KIND of consequence.
The nature of crime — the four attributes: (i) a public wrong (prosecuted in the State’s name — Government of Nepal v. X); (ii) State sanction (imprisonment, fine — under the Muluki Criminal Code 2074’s sentencing scheme); (iii) moral condemnation (the conviction brands); (iv) a strict procedural regime (guilt beyond reasonable doubt — Article 20’s guarantees). And the historicity point: crime is a social construct — the criminalization decision is a political-moral choice (marital rape criminalized in Nepal only in 2002; adultery, gambling and witchcraft-accusation illustrate the flux).
Criminal law — the body of law defining crimes, prescribing punishments and regulating the criminal process’s substantive guarantees: in Nepal, the Muluki Criminal Code, 2074 and the Criminal Procedure Code, 2074 (together replacing the Muluki Ain 2020’s criminal halves) plus the special statutes (organised crime, anti-corruption, narcotics, banking, electronic transactions).
The classification of crime (the exam’s catalogue):
- By gravity: serious/heinous vs. ordinary (bail, procedure and sentencing consequences);
- By moral quality: mala in se (wrong in itself — murder, rape) vs. mala prohibita (wrong because prohibited — regulatory offences);
- By the object harmed: against the State; public order/justice; the person; property; reputation; chastity/morality; public health;
- By conduct: result crimes (homicide), conduct crimes (drunk driving), state-of-affairs offences;
- By mental element: intentional, knowledge/recklessness, negligence, strict liability;
- Compoundable vs. non-compoundable (the Nepali practice classification).
1.2 Differences between Crime, Tort and Other Civil Wrongs
The tripartite table (the unit’s most predictable question):
| Point | Crime | Tort | Breach of Contract |
|---|---|---|---|
| Wrong’s nature | Public (against society) | Private (against the individual) | Private (violation of an assumed obligation) |
| Duty’s source | Law | Law (non-consensual) | The parties’ agreement |
| Who sues | The State | The injured party | The aggrieved party |
| Remedy | Punishment (+ possible compensation) | Unliquidated damages | Damages / specific remedies |
| Standard of proof | Beyond reasonable doubt | Balance of probabilities | Balance of probabilities |
| Settlement | Generally not compoundable | Settleable | Settleable |
The nuance that earns marks: the same act, all three dimensions — the careless killing is homicide AND a tort against the family AND (a contract driver) a breach; the systems are NOT mutually exclusive, and modern criminal courts award victim compensation (the categories are a spectrum).
1.3 Types of Criminal Liability
- Relative liability (fault-based): the ordinary liability — punished for the BLAME: the intentional, reckless or negligent wrong (the mens rea ladder of Unit 4). The default: no crime without a guilty mind (actus non facit reum nisi mens sit rea — Unit 3);
- Strict liability: liability WITHOUT proof of fault — the regulatory offences (adulterated food, weights-and-measures, pollution) where the public-welfare aim dispenses with mens rea; the defences’ narrowness (no mistake, but no-liability where the act was truly involuntary); the critique and the boundaries (strict liability read narrowly — the presumption of mens rea);
- Vicarious liability: the one punished for ANOTHER’s act — the employer’s answer in the civil world (LAW 311’s doctrine) reaching criminal law only where the statute expressly provides or the company’s structure demands (the corporate liability of Unit 6); the general rule: criminal liability is PERSONAL (each actor answers for own acts).
1.4 Jurisdiction of Criminal Law
- Territorial: the foundational principle — crimes committed within the territory (land, waters, airspace, Nepali ships/aircraft); the Code applies to offences in Nepal; the venue rules (where committed or the accused found); the objective territorial (the result within — the border bullet) and subjective territorial (the act begun within) extensions;
- Extra-territorial: the exceptions — the protective principle (offences against the State’s security, currency, vital interests committed abroad); the active personality (own nationals’ serious offences abroad); the passive personality (victims who are nationals);
- Personal: jurisdiction over persons by status (nationals; officials; the military’s separate discipline system — the court-martial’s boundaries);
- Universal: the hostis humani generis crimes — piracy, genocide, torture, war crimes — any state may try regardless of links (Eichmann; Pinochet as the exemplars); the ICC’s complementarity distinction (treaty-based, not universal — the Rome Statute’s jurisdiction where the State is unwilling or unable);
- Extradition: the formal surrender process — the jurisdiction’s procedural complement. Nepal’s framework: the Extradition Act, 2046; the treaty with India (1953/1963, revised 2013) as the principal instrument. The principles: treaty-and-comity (no general duty); dual criminality; the political-offence exception; the speciality rule; non-extradition of nationals; no extradition for military offences; the double-jeopardy bar. The alternatives: deportation and mutual legal assistance.
Exam Focus
- Long questions: (i) The concept and nature of crime (three definitions + four attributes + the social-construct point); (ii) The crime-tort-contract table with the “one act, three liabilities” illustration; (iii) The types of criminal liability (the relative/strict/vicarious trio with strict liability’s rationale-and-limits); (iv) The jurisdiction’s five heads (universal with Eichmann/Pinochet + ICC complementarity; extradition with the Act 2046 and the principles).
- Short questions: mala prohibita; dual criminality; the rule of speciality; passive personality.
- Trick areas: (i) Vicarious liability is the CIVIL norm but the CRIMINAL exception — say the general rule (personal liability) first; (ii) The ICC’s jurisdiction is treaty-based and COMPLEMENTARY, not universal — the pair examiners split; (iii) Deportation is not extradition — the immigration route used where no treaty runs.
Model Questions
- Define crime and criminal law. Explain the nature and classification of crime. (15)
- Distinguish crime from tort and breach of contract. Can one act give rise to all three liabilities? (10)
- Explain the types of criminal liability with strict liability’s rationale and limits. (10)
- Explain the kinds of jurisdiction in criminal law with special attention to universal jurisdiction. (15)
- What is extradition? Discuss Nepal’s Extradition Act, 2046 and the principles of extradition law. (15)
- Short notes: (a) mala prohibita; (b) dual criminality; (c) rule of speciality; (d) ICC complementarity. (4×2.5)
📚 Get the complete notes: Download the full Criminal Law PDF (all units) — Law Info Nepal Original Notes Series (LL.B., 3-Year New Course, 2076/077 B.S.).