Chapter-16 Inquiry into Offence and Procedures

Chapter-16 Inquiry into Offence and Procedures

  1. Necessary action to be taken to prevent offence: If a person is suspected of attempting to commit any offence liable to the punishment under this Act or is found committing such offence, the employee who does the forest related work or security personnel shall make arrangement to prevent such offence from being committed, and may use necessary force for that purpose.
  2. Special powers: (1) The employee deputed for the forest security or security personnel may, by order of the Division Forest Office, shoot the offender under the knee who is involved in the forest and wildlife related offence under this Act, in case there arises a situation that any person obstructs within or outside the forest area to arrest the offender or any person assists the offender to make escape even after his or her arrest or without using the weapon the life of the person making such arrest is endangered as and when the offender is apprehended.

(2)        Even though any person has already cultivated the land of the national forest area or made a house, hut in such land, the Division Forest Officer or Forest Officer or Forest Assistant designated by him or her may remove the harvest or dismantle the house or hut, and confiscate the harvest in such area.

(3)        Notwithstanding anything contained in sub-section (2), nothing contained in that sub-section shall affect other punishment imposable under this Act.

  1. Power to make arrest: (1) If it is necessary to arrest any person in the course of investigating into any offence under this Act, the investigating authority shall make an application, accompanied by the reason therefor and description setting out the identification of such person, to the case trying authority for permission to arrest such person.

                        (2)        If the reason for making arrest seems reasonable from the application referred to in sub-section (1), the case trying authority may give permission to issue a warrant for arrest.

(3)        The investigating authority, forest related employee or security personnel shall arrest the person under the warrant for arrest referred to in sub-section (2) and produce him or her before the case trying authority within twenty-four hours exclusive of the time required for the journey.

(4)        Notwithstanding anything contained in sub-section (1), if there is a reasonable reason that the person committing the offence may escape or destroy evidence, exhibit or proof if he or she is not arrested immediately or if any person related to the offense who has remained at large is found or is found committing the offence, the investigating authority, forest related employee or security personnel shall immediately issue a warrant for arrest of him or her, arrest him or her and produce him or her, along with the matter, before the case trying authority for approval.

Provided that if the person to be so arrested is a woman, a forest related woman employee or woman security personnel shall be used as far as possible.

(5)         In case it is required to hold in detention the person arrested in connection with any offence and keep inquiry because inquiry cannot be completed within twenty-four hours, the employee making inquiry shall present him or her before the case trying authority and shall detain him or her only by obtaining the permission of the case trying authority. In so asking for permission, the charge against the person held in detention, ground thereof, the reason for making inquiry by holding him or her in detention and content of the statement made by him or her, if any, shall be set out clearly.

(6)        If  permission is sought for holding in detention pursuant to sub-section (5), the case trying authority shall examine the concerned documents, consider whether or not inquiry is being made satisfactorily, and may, if it seems that inquiry is being made satisfactorily, give permission to hold him or her in detention  for a period not exceeding twenty-five days at several times.

  1. Power to make search: (1) In case there is reasonable ground to believe that an offence punishable under this Act has been committed, a forest technical employee of at least non-gazetted second class or employee of assistant police inspector rank may search any place in accordance with the prevailing law.

Explanation: For the purpose of this Section, the term “place” means a permanent or temporary building or shed, and this term includes an empty land, tent, boat and any type of motor vehicle.

(2)        The person conducting search pursuant to sub-section (1) shall search a place only upon giving a notice to that effect, setting out the reason, to the owner of the place to be searched or the person using the place for the time being before entering such place.

(3)        In making search pursuant to sub-section (1), it shall be made in presence of at least one office-bearer or member of the concerned Local Level and at least two witnesses.

(4)          In case the search of a residential house is to be made and if any woman is in that house, information and reasonable time shall be given to get herself out of the house.

(5)        Nothing contained in this Section shall be construed as entitling the employee making search to enter into a residential house from the sun-set till the sun rise.

  1. Forest products and related goods may be impounded: (1) If there is a reliable ground to believe that this Act has been violated in the course of storing or transporting any forest products, any employee performing forest related work or security personnel may impound such forest products and any arms, boat, vehicle and quadruped connected with the offence.

(2)        In any forest product or good is impounded pursuant to sub-section (1), the employee or security personnel so impounding shall give a receipt thereof to the concerned person, setting out the description of such impounded forest product or good, and submit a report to the Division Forest Office or Sub-Division Forest Office as soon as possible, upon marking a specific sign in such product or good, measuring and examining it.

(3)        The employee of at least non-gazetted second class  or security personnel of equivalent rank may release the weapon, boat, motor vehicle or quadruped related to the offence, other than the forest products, impounded pursuant to sub-section (1), on the condition that the same shall be produced at such date and place specified by him or her, after getting a bond to be executed by the owner of such goods, in presence of at least one office-bearer or member of the concerned Local Level and at least two local persons.

  1. Provision relating to submission of material evidence: (1) The forest products seized in connection with the offence referred to in this Act or tools and other instruments used in the commission of such offence shall be submitted to the case trying authority as a material evidence.

(2)        Notwithstanding anything contained in sub-section (1), in case the forest products, tools and other instruments so seized equipment cannot be submitted to the case trying authority as a material evidence, it shall be deemed as if the material evidence were submitted if such material evidence is held in the custody of the nearest forest office and the deed of memorandum to that effect is submitted.

(3)        The case trying authority may obtain a report by sending a mission to the place where the material evidence is held pursuant to sub-section (2) and initiate action.

  1. Investigation into and filing of cases: (1) Such employee of the Provincial Government as designated by the Provincial Government by a notification in the Provincial Gazette shall carry out investigation and inquiry into the cases related to the offence punishable by imprisonment for a term not exceeding one year pursuant to this Act.

                        (2)        Such employee of the Government of Nepal as designated by the Government of Nepal by a notification in the Nepal Gazette shall carry out investigation and inquiry into the cases related to the offence punishable by imprisonment for a term exceeding one year pursuant to this Act.

(3)        If  one person is liable to punishment of imprisonment for a term not exceeding one year and another person to that of imprisonment for a term exceeding one year for the same offence, the employee referred to in sub-section (2) shall carryout investigation and inquiry into that case.

(4)        If, upon completion of the investigation and inquiry referred to in this Act, it appears necessary to file a case, the investigating authority shall submit the case-file containing the concerned evidence and proof, accompanied by his or her opinion, to the concerned Government Attorney Office for a decision whether or not to institute the case.

(5)        In the case of receipt of the case-file referred to in sub-section (4), the concerned Government Attorney Office shall return the case-file to the investigating officer mentioning the matter to that effect if the case is incapable of being instituted, and mentioning the person against whom the case is to be instituted, the charge against him or her, punishment to be imposed on him or her and the claim to be made in the charge-sheet if the case is to be instituted so that the limitation for filing the case does not expire.

(6)        Notwithstanding anything contained in sub-section (5), if, in studying the case-file received, it deems necessary to carry out further investigation on that matter, the Government Attorney Office shall return the case-file, accompanied by the ground and reason for the same, specifying the matters to be further investigated, to the investigating officer.

(7)        If the case-file is received for carrying out further investigation on any matter pursuant to sub-section (6), the investigating officer shall carry out further investigation on the matter and submit again the case-file, accompanied by the claim of proposed charge, to the Government Attorney Office, for filing the case.

(8)        Upon receipt of the case-file pursuant to sub-section (7), the concerned Government Attorney Office shall decide to or not to institute the case pursuant to sub-section (5) and return it to the investigating officer.

(9)        Upon receipt of the case-file with the decision to institute the case from the Government Attorney Office pursuant to sub-section (5) or (8), the investigating officer shall file the case, by the name of the Government of Nepal, with the case trying authority.

  1. The Government of Nepal to be plaintiff: The Government of Nepal shall be the plaintiff in the cases under this Act.
  2. Management of goods impounded: (1) If the owner of the forest products, tools, weapons, motor vehicles and quadruped impounded because of being related to the offence punishable under this Act is not traced out, the investigating officer shall affix a notice at a conspicuous place prescribing a time-limit of seven days, notifying that if any person has right in such goods, such person may make claim to that effect.

                        (2)        If any person claims right in the goods referred to in sub-section (1), it shall be submitted to the case trying authority for decision.

(3)        If no claim of right in the goods referred to in sub-section (1) is made or judgment is made not sustaining the claim of right, such goods shall devolve on the Government of Nepal.

  1. Perishable forest products, goods and quadrupeds may be auctioned: (1) The Divisional Forest Officer may bring any perishable forest products, goods impounded in connection with an offence punishable under this Act or forest products, goods or quadrupeds which are in such situation that they cannot be protected to the nearest forest office or safe place and auction the same with the permission of the case trying authority.

                        (2)        The amount received from the auction sale referred to in sub-section (1) shall be credited to deposit subject to what will be decided at the time of adjudgment of such case.

  1. Provisions relating to trial: (1) Notwithstanding anything contained in the prevailing law, if a person who is arrested pursuant to this Act and charged with a case punishable by imprisonment for a term of one year or more seems to be the offender on the basis of the evidence available for the time being or if there is a reasonable ground to believe from such evidence that he or she is the offender, proceeding shall be taken by holding such person in detention for trial.

                        (2)        In the case of a person other than that mentioned in sub-section (1), the case shall be tried upon releasing him or her on bail or surety of assets equivalent to the upper ceiling of fine or imprisonment that can be imposed on him or her if such bail or surety is furnished, and if he or she is able to so furnish the bail or surety, it shall be tried by holding him or her in detention.

Provided that the case shall be tired by holding in detention the offender who repeatedly commits the offence punishable by imprisonment for a term exceeding six months.

(3)        While carrying out proceedings by holding the accused in detention pursuant to this Section, he or she shall not be held in detention for a period more than the upper ceiling of the punishment imposable on him or her.

  1. Case trying authority: (1) The Division Forest Officer of the Government of Nepal shall try and settle the cases under this Act which are punishable under this Act by a fine not exceeding two hundred thousand rupees or imprisonment for a term not exceeding one year or both.

                        (2)        The cases referred to in sub-section (1) shall be tried and settled by following the proceedings referred to in the Special Court Act, 1974 (2028).

(3)        The employee of the rank empowered to investigate into the case may immediately fine the person who is arrested in connection with the offence punishable under this Act by a fine not exceeding one thousand rupees and release him or her by executing a deed of memorandum to that effect.

(4)        Any party who is not satisfied with the decision referred to in sub-section (1) or (3) may make an appeal to the concerned District Court within thirty-five days from the date of receipt of the notice of the decision.

  1. Seized goods liable to confiscation: (1) If any person is held to have committed any offence punishable under this Act, the load carriers, tools, weapons, quadrupeds and other instruments which have been seized in connection with the offence shall be confiscated.

                        (2)        The load carriers, tools, weapons, quadrupeds and other instruments which have been seized in the course of investigation into any offence punishable under this Act may, with the permission of the case trying authority, be auctioned and the proceeds of such auction, credited into the deposit account.

(3)        Notwithstanding anything contained in sub-section (1), if it does not appear from the investigation that any person other than the offender has used such motor vehicle or allowed it to be used to assist the offender knowingly, such a vehicle or a load carrier of value less than fifty thousand rupees shall not be confiscated, and one who does such act may be liable to a fine not exceeding fifty thousand rupees, in addition to the punishment imposable under this Act.

  1. Management of vegetation (plants) and vegetation (plant) resources: The Government of Nepal or Provincial Government may provide any vegetation (plants) and vegetation (plant) resources confiscated in connection with any offence referred to in this Act to any public organization or body for educational and scientific study, research purposes or medicinal use or religious work or destroy the same.