LAW5204 Criminal Law-I — Unit 1: General Introduction to Criminal Law — Meaning and Nature of Crime; Meaning and Nature of Criminal Law; Difference between Crime, Tort and Breach of Contract; Classification of Crime; Jurisdiction of Criminal Law (Territorial, Extra-territorial, Personal, Universal); Extradition

Unit 1: General Introduction to Criminal Law — Meaning and Nature of Crime; Meaning and Nature of Criminal Law; Difference between Crime, Tort and Breach of Contract; Classification of Crime; Jurisdiction of Criminal Law (Territorial, Extra-territorial, Personal, Universal); Extradition

1. Meaning and Nature of Crime

What is a crime? The question has three classic answers, and the examination expects all three:

1. The legal-positivist definition (procedural): a crime is any act (or omission) prohibited by law and punishable by the State through criminal process — Blackstone: “an act committed or omitted in violation of a public law.” The lawyer’s working test: if the State prosecutes and the court may punish, it is a crime.
2. The moral/social definition: a crime is a public wrong — conduct that offends the shared moral conscience of the community and threatens social order. Sir William Stephen’s formulation (a crime is “an act which is both forbidden by law and revolting to the moral sentiments of society”).
3. The sanction-based definition (Austin): a crime is conduct for which the law provides punishment — the operative difference from civil wrongs being the kind of consequence (punishment, not compensation or restitution).

Nature of crime — four attributes to list:

• Public wrong: prosecuted by the State in the name of the people (the case title itself says so — Government of Nepal v. X, formerly His Majesty’s Government v. X, as the prescribed NKP reports show);
• State sanction: punishable — imprisonment, fine, community service, or compensation-order hybrids under the Muluki Criminal Code, 2074’s sentencing scheme;
• Moral condemnation (the criminologists’ “criminal label”): conviction brands; criminal law is society’s formal condemnation;
• Strict procedural regime: guilt must be proved beyond reasonable doubt through fair process — the Constitution of Nepal (2015), Article 20’s criminal guarantees (presumption of innocence, no self-incrimination, fair hearing by an independent court — see Unit 3).

Crime as a social construct: what counts as crime varies across time and space — the criminalization decision (and decriminalization) is a political-moral choice: marital rape criminalized in Nepal only in 2002 (the 11th-amendment era reform (Jurisprudence-I, Semester 2)); witchcraft an offence once, superstition-criminalization (e.g., the Witchcraft Accusation (Crime and Punishment) Act’s successors) a modern Nepali addition; gambling, alcohol and adultery illustrate the flux. This historicity does not make crime “unreal” — it makes criminal law the record of each society’s enforced morality.

2. Meaning and Nature of Criminal Law

Criminal law is the body of law that defines crimes, prescribes punishments, and regulates the criminal process’s substantive guarantees. In Nepal, the general and special criminal law now lives principally in the Muluki Criminal Code, 2074 (2017) (in force 2018) and the Criminal Procedure Code, 2074, together replacing the criminal halves of the Muluki Ain, 2020 — plus special statutes (narcotics, banking offences, anti-money laundering, public debt? no — e.g., the organised crime and anti-corruption statutes, the Public Offences and Punishment Act, the elections laws, environmental crimes).

Nature — the five-point anatomy:

1. Public law: the State is party; the wrong is conceived as against society, not merely the victim;
2. Penal, not compensatory: the aim is punishment — retribution, deterrence (general and specific), incapacitation, rehabilitation — although modern codes (including the 2074 Code) increasingly pair punishment with victim compensation, making criminal law partly reparative;
3. Ultimate ratio (last resort): criminal law is the State’s heaviest instrument — the principle of ultima ratio demands criminalization only where other social controls fail;
4. Strict construction and legality: crimes and punishments are statutory; no crime without law (nullum crimen sine poena nulla… — Unit 3’s principles);
5. Universal and territorial: every legal system has one, and each claims authority over defined territory and persons (jurisdiction — Section 5).

Functions of criminal law (answer to “why criminal law?”): upholding public order and security; protecting fundamental rights and interests (life, body, property, reputation, chastity, state security); expressing and reinforcing moral limits; deterring and rehabilitating; doing justice on behalf of victims.

3. Difference between Crime, Tort and Breach of Contract

The tripartite comparison (the unit’s most predictable tabular question):

Point	Crime	Tort	Breach of Contract
Nature of wrong	Public wrong (against the State/society)	Private wrong (against an individual)	Private wrong (violation of a voluntarily assumed obligation)
Source of duty	Imposed by law, regardless of consent	Imposed by law (non-consensual)	Created by the parties’ agreement
Plaintiff/prosecutor	The State (public prosecutor)	The injured party	The aggrieved party
Remedy	Punishment (imprisonment, fine) + possible compensation	Unliquidated damages (compensation for the harm)	Damages (expectation/compensation) or specific remedies
Purpose	Punish, deter, protect society	Restore the victim (compensate)	Enforce the bargain / put promisee in expected position
Standard of proof	Beyond reasonable doubt	Balance of probabilities	Balance of probabilities
Consent of parties to the wrong	Consent of victim generally no defence (state prosecutes regardless)	Consent of plaintiff is a defence (volenti)	Consent is of the essence — the breach is of consented obligation
Terminating the proceeding	Generally not compoundable except as law permits (compoundable offences may be settled)	Parties may settle (compromise) any time	Parties may settle (waive) any time

Intersections to note (the marks-earning nuances):

• The same act, all three dimensions: a driver’s careless killing is homicide (or a traffic crime) and a tort against the victim’s family and — if he was a contract driver — a breach of his employment contract. One act, three liability systems, not mutually exclusive;
• “Overlapping sanctions” in modern law: criminal courts awarding victim compensation (the 2074 Code’s compensation provisions); tort-like restitution; punitive damages blurring tort with punishment — the categories are ideal types, modern practice is a spectrum;
• Why the differences matter procedurally: the criminal standard of proof is higher because liberty is at stake; the State cannot compromise the public interest at will.

4. Classification of Crime

1. By gravity:
   – Common law’s historical felony/misdemeanour (and treason’s special class);
   – Modern statutory grading — Nepal’s Code distinguishing serious (“heinous”/grave) offences from ordinary ones (with graver procedure, limitation, and sentencing consequences — e.g., “serious offence” status affecting bail and appeal practice under the Criminal Procedure Code, 2074);
2. By moral quality: mala in se (wrong in themselves — murder, rape: the natural crimes) vs. mala prohibita (wrong because prohibited — licensing, regulatory, traffic offences: strict-liability candidates);
3. By the object harmed: offences against the State (sedition, treason); against public order/justice (obstruction, perjury); against the person (homicide, assault); against property (theft, robbery, mischief, fraud); against reputation; against chastity/morality; against public health/environment;
4. By conduct: result crimes (the actus must cause a prohibited result — homicide), conduct crimes (the doing suffices — drunk driving), and state-of-affairs offences (being found somewhere — see Unit 4);
5. By mental element: intentional, reckless/knowledge-based, negligent, and strict/no-fault liability offences (public welfare and regulatory crimes);
6. By participant and completeness: principal/secondary (Unit 6); completed vs. inchoate (Unit 5);
7. Compoundable vs. non-compoundable (a Nepali practice classification): offences the victim may settle (with court approval in defined cases) vs. offences the State must prosecute to conclusion.

5. Jurisdiction of Criminal Law

Jurisdiction — the authority of a state’s criminal courts to prescribe, prosecute and punish — is classified on five bases (learn the Latin/labels):

5.1 Territorial Jurisdiction

The foundational principle: a state may punish crimes committed within its territory — land, territorial waters and airspace, and (by fiction/extension) Nepali ships and aircraft. The Muluki Criminal Code, 2074 applies, in general terms, to offences committed within Nepal. Within the state, further tiers distribute competence (court levels; place of commission — the Criminal Procedure Code’s venue rules: ordinarily where the offence occurred or the accused resides/is found). The objective territorial principle extends jurisdiction where only the result occurs in the state (a bullet fired across the border killing within); the subjective territorial principle covers acts begun within even if completed abroad.

5.2 Extra-territorial Jurisdiction

Exceptions where the state punishes crimes beyond its borders:

• Protective principle: offences directed against the state’s security, currency, or vital interests even if committed abroad by foreigners (treason, counterfeiting, espionage-type offences);
• Active personality principle: a state may try its own nationals for offences committed abroad (the 2074 Code’s provisions covering, in principle, Nepali citizens’ serious offences abroad, on conditions such as the conduct being criminal in both states or the offender’s presence in Nepal — the framework the prescribed case HMG v. Idris Miya (NKP 2044) illustrates for personal jurisdiction, per the syllabus’s annotation);
• Passive personality principle: jurisdiction over crimes against one’s nationals abroad (increasingly invoked for terrorism and piracy-era harms; contested historically, accepted in modern instruments);
• Effects doctrine: jurisdiction over foreign conduct with substantial effects within the territory (competition and transnational crime practice).

5.3 Personal Jurisdiction

The personality principles in their two faces — active (over nationals as offenders) and passive (over victims as the connecting link). Under Nepali law, the criminal courts’ reach over Nepali citizens’ conduct abroad (and returning offenders) is this jurisdiction; the syllabus pairs it with Idris Miya (personal jurisdiction) and with HMG v. Rameshwar Raut Barai & Others (NKP 2041) for jurisdiction in criminal law generally — list the citations with their syllabus annotations verbatim:

Prescribed cases for this unit (as annotated in the syllabus): HMG v. Rameshwar Raut Barai & Others, NKP (2041 B.S.), No. 4, p. 360 (case related to jurisdiction in criminal law); Idris Miya v. HMG, NKP (2044), No. 2, p. 259 (case related to personal jurisdiction in criminal law).

5.4 Universal Jurisdiction

The boldest principle: certain crimes are so grave — piracy, genocide, war crimes, crimes against humanity, torture, slavery — that any state may try the offender, regardless of where committed, by whom, against whom, and whether the state has any link at all. Rationale: these are crimes against the international community as such (hostis humani generis — the enemy of all humankind, piracy’s old label). Exemplars: the Eichmann trial (Israel, 1961 — Nazi crimes, no territorial link); the Pinochet litigation (UK/House of Lords, 1998–99 — torture and the UN Convention against Torture); Belgium’s erstwhile universal-jurisdiction statute; the special tribunals (ICTY/ICTR) and the ICC (whose jurisdiction, strictly, is treaty-based and complementary rather than universal). Nepal, party to the genocide and torture conventions, has theoretically assumed universality obligations for torture (aut dedere aut judicare — extradite or prosecute), though prosecuting practice and implementing legislation remain the test. For the exam: define the principle, name the crime list, cite Eichmann and Pinochet, note the complementarity-with-ICC distinction.

6. Extradition

Definition: extradition is the formal process by which one state (the requested state) surrenders a person found in its territory to another state (the requesting state) that accuses him of a crime or seeks his punishment — the procedural complement of jurisdiction (jurisdiction says “we may try”; extradition moves the body to where the trial can occur).

Nepal’s framework: the Extradition Act, 2046 (1988) governs extradition to and from Nepal — extradition generally proceeding on treaty relations (the treaty with India — originally under the 1950 framework, treaty 1963, revised in 2013 — being the principal operative instrument; extradition arrangements with other states negotiated case-by-case or under multilateral conventions where applicable). The Act’s scheme (describe by its principles, per the syllabus’s method): request through diplomatic channels; the offence’s dual criminality (an offence punishable in both states); the political-offence exception; nationality and humanitarian considerations; judicial examination before surrender; and the rule of speciality (the person surrendered may only be tried for the extradited offence).

General principles of extradition law (the portable checklist):

1. Extradition is a matter of treaty and comity, not right — no general duty to surrender absent obligation (aut dedere aut judicare conventions aside);
2. Dual criminality required;
3. Political offence exception (with carve-outs in modern treaties for terrorism, hijacking, grave violence against heads of state — the 2013 Nepal–India revision’s controversies included the exception’s scope);
4. Speciality rule;
5. Non-extradition of nationals (many states, civil-law style, decline to surrender their own citizens — offering instead domestic prosecution on the active-personality principle);
6. No extradition for military/religious offences, or where the death penalty/he political persecution risks offend the requested state’s public order (refus de l’extradition for inhumane consequences);
7. Double jeopardy (ne bis in idem) bar where the person was already tried for the same facts.

The alternative to extradition: deportation (immigration removal) — used where no treaty duty runs (its legality debated where used to accomplish what extradition would forbid); and mutual legal assistance (evidence, not persons — the modern transnational-criminal-law toolkit — cross-reference Public International Law-I).

Model Questions

1. Define crime. Explain the nature and attributes of crime, illustrating the historical relativity of criminalization with Nepali examples. (15)
2. Distinguish crime from tort and breach of contract. Can one act give rise to all three liabilities? (10)
3. Classify crimes with examples. What follows from the mala in se / mala prohibita distinction? (10)
4. Explain the kinds of jurisdiction in criminal law, with special attention to universal jurisdiction and its leading cases. (15)
5. What is extradition? Discuss the principles of extradition law and Nepal’s Extradition Act, 2046. (15)
6. Short notes: (a) Mala prohibita; (b) Passive personality principle; (c) Rule of speciality; (d) Aut dedere aut judicare. (4×5)