Supreme Court, Larger Full Bench Rt. Hon’ble Chief Justice Cholendra Shumsher JBR Hon’ ble Justice Deepak Kumar Karki Hon'ble Justice Mira Khadka Hon’ ble Justice Hari Krishna Karki Hon’ble Justice Bishowambhar Prasad Shrestha Hon'ble Justice Ishwar Prasad Khatiwada Hon'ble Justice Dr. Ananda Mohan Bhattarai Hon'ble Justice Anil Kumar Sinha, Hon'ble Justice Prakash Man Singh Raut Hon'ble Justice Sapana Pradhan Malla Hon'ble Justice Tej Bahadur K C Hon’ble Justice Purushottam Bhandari Hon’ble Justice Bam Kumar Shrestha Hon’ ble Justice Tanka Bahadur Moktan Hon’ ble Justice Prakash Kumar Dhungana Hon'ble Justice Sushmalata Mathema Hon’ ble Justice Kumar Regmi i le Justice Hari Prasad Phuyal Hon'ble Justice Dr. Manoj Kumar Order, 076-RE-0392 Subject: Seeking resolution of the confusion regarding statute of limitation, time-limit, date for appearance ete. during the period of Lockdown. Page 1 of 45Supreme Court, Case and Writ Division - Reporter 076-Wo-0944 Subject: Mandamus As the legal representative of Advocate Tikaram Bhattarai, permanent resident of Jhapa District, Gauradaha Municipality currently residing in Kathmandu - Petitioner Metropolitan City, Ward No. 10 and also on his own behalf Advocate Maheshwor Shrestha, a resident of Kathmandu Metropolitan City, Ward No. 15 ‘The facts in brief of the Report, submitted to the Larger Full Bench, as per the order of the Division Bench of this Court, considering the complexity and the importance of the legal issues involved in the Report, earlier submitted to the Division Bench pursuant to Rule 22 of the Supreme Court Rules, 2074, seeking resolution of the confusion about the implementation of, inter alia, the statute of limitation, time-limit, date for appearance, ete. during the period of Lockdown as well as of the writ petition 076-WO-0944 filed in this regard seeking an Order pursuant to Article 133 of the Constitution of Nepal and of the Order of this Bench are as follows: Contents of the Report |. The infection caused by Coronavirus (COVID-19) pandemic is spreading in Nepal as elsewhere in the world. The Government of Nepal has made various decisions to control the infection. It is necessary to manage the work and service delivery of the Court in pandemic situation, as the working nature of the Court is to deal with a large public presence and crowd. 1g held on 2076.12.07 (2020.03.20 ‘The Full Court of the Supreme Court, through its me AD), decided on various matters relating to the functions and management of regular services and proceedings of the Courts. Accordingly, other regular services and proceedings of the Court were suspended from 2076.12.09 (2020.03.22 AD) to 2076.12.21 (2020.04.03 AD) except with regard to the petition of Habeas Corpus, filing of Charge-sheet, statement and order of detention, approval of arrest warrant and approval of urgent arrest warrant, extension of remand, hearing on petitions of serious nature relating to pandemic, petition seeking release from imprisonment on payment of money, and petition relating to granting custody of children, Subsequently, considering the possibility of spread of COVID-19, the Government of Nepal, as per the Infectious Diseases Act, 2020(1964 AD) decided on 2076.12.10 (2020.03.23 AD) to declare Lockdown for the first time from 2076.12.11 (2020.03.24 AD) to Page 2 of 452076.12.18 (2020.03.31 AD), along with various other orders. Since then, the period of Lockdown has been extended time and again and continues to exist till date. In the meantime, some general changes have been made in the service delivery by several meetings of the Full Court. During this period, the general or regular services provided by the Court remained suspended for the service recipients. Also, cases, appeals, registration of petitions equivalent to plaints, hearing of cases, giving date for appearance ete, have not been carried out. Section 51 of the National Civil Procedure Code, 2074 (2017 AD) mentions that i the last day of the statute of limitation falls on a public holiday and the concemed person requests for the registration of a plaint on the first day on which the Court opens, immediately after such a holiday, the Court shall register the plaint; Section 52 states about the commencement of the statute of limitation for a minor or a person of unsound mind, and Section 53 states about the commencement of the statute of limitation of heir. Section 58 provides for the filing of a plaint in certain specific circumstances even after the expiry of statute of limitation. However, it does not appear to include a clear or definitive provision regarding extension of the statute of limitation lapsed during the period of Lockdown, Section 169A. of the National Criminal Procedure Code, 2074 (2017 AD), provides that if the statute of limitation has been specified, a case can be filed accordingly but if not specified, case can be filed at any time. In the proviso clause (5) of Section 59 of the said Code, it is mentioned that the Court may grant the extension of the time-limit in certain limited conditions arising due to force majeure. However, the National Criminal Procedure Code, 2074 (2017 AD) does not seem to have a provision of extension of statute of limitation. Section 85 of the same Code provides that where a date is appointed by the Court for appearance for any proceeding, the accused or defendant shall be required to appear in the Court on that appointed date for appearance, and if any party to the case makes an application showing the reason for being unable to appear in the Court on the appointed date for appearance due to force majeure and the Court holds such reason to be reasonable, the Court may grant extension of the expired appointed date for appearance up to twenty-one days for a maximum of two times. Section 223 of the National Civil Procedure Code, 2074(2017 AD) provides that a party who fails to appear in a Court within a specified time-limit or on an appointed date due to force majeure, may, in case of time-limit, seek extension of the time-limit once for fifteen days and, in case of date for appearance, seek extension upto twenty-one days for maximum two times. In addition, Section 225 also provides for the extension of date for appearance in certain specific force majeure. However, there does not seem to be a clear provision regarding what will happen in Page 3 of 45case of non-appearance on the appointed date for appearance for a long time due to Lockdown during the state of pandemic, 3. According to Section 11 of the Special Court Act, 2059 (2002 AD), in the context of a case filed in the Special Court and an appeal filed upon its verdict, if an application is filed to sustain lapsed time-limit or date stating the reason and ground resulting from force majeure, the lapsed time-limit or date may be sustained one time for a period upto fifteen days in Procedure Act, 2028 (1972 AD) provides that if the 1e-limit or date for appearance has expired due to a force majeure of the maximum, Section 8A. of the Summary court feels that the tis party, it may extend the time-limit or date for appearance for total fifteen days for one or two times. Rule 55 of the Supreme Court Rules, 2074 (2017 AD), Rule 49 of the High Court Rules, 2073 (2016 AD) and Rule 38 of the District Court Rules, 2075 (2018 AD) have provisions to extend the ex red time- mit or date for appearance up to fifteen days in case of force majeure. 4. Accor ng to the Infectious Diseases Act, 2020 (1964 AD), in case of rise of infection ot possibility of transmission of any contagious disease among the people in Nepal or any part thereof, the Government of Nepal may take necessary actions and issue orders applicable to the general public or any group of individuals to eradicate or control the epidemic. The definition section of Section 2 of the Disaster Risk Reduetion and Management Act, 2074 (2017 AD) defines non-natural disasters and among other things includes epidemic, pests or microbial terror and various types of flu: However, even these Aets do not seem to have mentioned anything about the expired statute of limitation, time-limit or date for appearance during any disaster or pandemic; Section 26 of the Administration of Justice Act, 2073 (2016 AD) provides that if the Court remains closed for three days or more, the Court shall hear the writ of Habeas Corpus even during the period of such closure. Even from the Lockdown order of Nepal Government dated 2076.12.10 (2020.03.23 AD), it does not seem that the government offices shall remain completely closed. As per the decisions of the Full Court of the Supreme Court, Courts have not been closed completely; rather most of the proceedings and service-delivery have only been suspended 6. In view of the above-mentioned contest, the National Civil Procedure Code, 2074 (2017 AD) has provided that, in some conditions of not being able to file a plaint within the statute of limitation due to force majeure, the statute of limitation may be extended for maximum of fifteen days, whereas the National Criminal Procedure Code, 2074 (2017 AD) provides for the Page 4 of 45extension of time-limit or date for appearance. However, there does not seem to be any provision regarding extension of statute of limitation during the pandemic or any other natural disaster. In this situation of pandemic, no special Act seems to have been enacted for the management of judicial administration, In the aforementioned context, as the issue requires clarity and upon considering complexity and importance of the subject matter, a report is, hereby, submitted for inquiry and removing the difficulties: a b. ‘The deci ion of the Full Court of the Supreme Court on 2076.12.07 (2020.03.20 AD) and decisions made thereafter, have decided not to treat as such the expiration of statute of limitation, time-limit and date for appearance lapsed during the suspension of proceedings of the Court and the closure of service delivery, and to register the cases and other proceedings if one appears before the Court within 10 days of the lifting of the Lockdown excluding the time required for journey. The National Criminal Procedure Code does not seem to mention-any provision about the non- expiration of the statute of Ii n. The issue relating to the statute of limitation needs to be decided at the outset by the Court adjudicating the case; the concemed parties cannot raise questions later in this regard; if the question of statute of limitation is not addressed immediately, different Courts may develop different views. Therefore, there should be an appropriate resolution for uniformity; As the number of parties and stakeholders attending the Court for proceedings for the date of hearing, date for appearance, case registration within ten days after lifting of the Lockdown may be higher in the Supreme Court and the Courts having heavy workload, thereby, subjecting them to risk of transmission, there should be an appropriate resolution in this regard; Since National Criminal Procedure Code, National Civil Procedure Code, Special Court Act, Summary Procedure Act and various rules of the Court have diversity and lack of tniformity regarding the extension of time-limit and date for appearance, there should be clarity in practice in the context of current pandemic; If Lockdown is not lifted nationwide at once and is lifted partially or regionally, the public insportation will not be in smooth operation in all places. In such situation resolution should be made regarding how to calculate the statute of limitation, time- limit and date for appearance; Page 5 of 45¢. Existing provisions in various laws relating to the extension of the time-limit and the date for appearance may be insufficient in the situation of partial lifting of the Lockdown, thus, a resolution should be made in this regard; £ Regarding the extension of date for appearance due to force majeure, the existing legal provision requires presentation of application along with proof of force ‘majeure, which may cause unnecessary inconvenience to the parties and increase congestion in the Court at the time of pandemic, thus, a resolution should be made in this regard: g. Section 82) of The Criminal Offences (Sentencing and Execution) Act, 2074 (2017 AD) states "Sentence shall be determined not later than thirty days of the conviction”. As that service remains suspended during the period of Lockdown, a necessary resolution should be made in this regard; h, With possibility of expiration of time-timit due to prolonged Lockdown which may cause dilemma in matters including applications relating to the execution of judgment (including application for the enforcement of judgments, application for the reduction, in imprisonment and fine in the criminal eas: it is required to give a clear resolution in this regard; Proiminary Order of this Court: 7. The Division Bench of this Court dated 2077.01.24 (2020.04.06 AD) issued an Order that, considering the complexity and importance of the legal issues included or to be ineluded in the present Report, it is deemed necessary to submit the Report to the Larger Full Bench, and for that purpose, the Report be presented before the Hon'ble Chief Justice as per clause (f) of Sub-rule (2) of Rule 22 of the Supreme Court Rules, 2074 (2017 AD). Also, considering the gravity of the igsue andbits importance, and the legal issue involved, the Attorney General, Presidents of the Nepal Bar Association and Supreme Court Bar Association as amicus curiae be asked for submission of the Pleading Note within three days via email and for the appearance of one representative from each of them, and upon such submission the case be presented before the Bench as per the law. Summary of Pleading Note of Learned Attorney General Mr. Agni Prasad Kharel 8. Even though the decision of the Full Court of the Supreme Court dated 2076.12.07 (2020.03.25 AD) allows filing of cases within 10 days of the lifting of the Lockdown, it has weak legal basis. Section 169A. of The National Criminal Procedure Code, 2074 (2017 AD) provides that if the statute of limitation has been fixed by the prevailing law, it will be done Page 6 of 45accordingly. However, this provision does not envision the extension of statute of limitation in case of its expiry by any reason, As per the decision of the Full Court of the Supreme Court dated 2076.12.28 (2020.04.10 AD), there would not be any problem regarding statute of limitation in the criminal cases where Nepal Government is plaintiff, as the charge-sheets of such cases are being filed since Chaitra 28 of year 2076. ‘There is a question on what to dovif the statute of limitation expires after the Lockdown in individual party criminal cases. As Section 59 is solely concerned with the time-limit rather than the statute of li itation, there seems to be no legal basis to extend the statute of limitation. It seems to be lawful as long as the case is registered on the day of lifting of the Lockdown, It does not seem possible to register a criminal case, where statute of limitation has expired without a legal basis. Where the Act clearly provides about the statute of limitation, it is expedient to be cautious about its extension through interpretation (NKP 2070, Vol. 4, Decision no, 9007). If certain number of days following the occurrence of an incident has been specified, the extension of the statute of limitation on this or that basis would be taken under consideration, In case of expiry of statute of limitation due to public holiday or non-operation of public transportation or force majeure, there is a legal provision that the case may be registered on the first day of resumption of the Court. It seems that the case may be registered on the aforementioned basis. Otherwise, the statute of limitation cannot be extended without making any amendments in the law itself. In the case of Raju Chapagain v Office of PM and Council of Ministers and etal. (NKP 2073,Vol.2, Decision no. 9547), it has been interpreted that the gravity of the erime, the contemporary context, the) social and geographical condition of the country and the international law and practice shall be taken into consideration while determining how and to what extent the statute of limitation of the case is to be determined. It has been also interpreted that the matter being of legislative wisdom, it shall not be proper for the Court to specify the exact day for statute of limitation. Section 225 of the National Civil Procedure Code, 2074 (2017 AD) provides for the extension of the statute of limitation if it expires due to force majeure. The same provision does not seem to be applicable in criminal cases. Rule 34 of the National Criminal Procedure Rules, 2075 (2018 AD), has a provision that if there is a public holiday on the last day of the statute of limitation, and if the person appears on the very first day the Court resumes immediately after such a holiday, the statute of limitation shall not be considered to have expired. The Government of Nepal has considered the Lockdown as equivalent to a public holiday through its notice. It shall not be considered as the expiration of statute of limitation, if the case is Page 7 of 45registered on the day the Court resumes immediately after the lifting of the Lockdown. If a situation arises where cases cannot be registered on a single day, how to deal with it is also a managerial issue. For this, an alternative of addition of appropriate extendable time period in case of expiry of statute of limitation can be adopted by amending the said provision of the Rules or adding a proviso by the Supreme Court as special measures in a special situation (pandemics like COVID-19). This option seems to be appropriate and lawful 10. The issue of management in Courts having higher workload, after lifting of the Lockdown, is a managerial issue rather than a legal one. The time-limit and the date for appearance in the Court could be extended by using the Information Technology. Service recipients could be pre-informed on the basis of the nature of the case or case number, regarding filing petition for extension of the time-limit or the date for appearance; the-number of services 10 be provided daily could be determined, and preventive measures could be adopted for minimizing the risk of infeetion in the Court, 11. As the Lockdown not in force during the COVID-19 pandemic and public transportation in operation, it may be considered as force majeure. It shall be lawful to interpret in a manner which is more convenient and facilitative to the parties to the case. Ifthe publie-transportation comes into operation regionally or partially, the time-limit and the date for appearance could be extended in accordance with the convenience of the party. If the Lockdown is completely lifted in a district or Tifted only in certain areas of the district or lifted in the district of residence but not in the district in which the ease is to be registered or lifted in the distriet in which the case is to be registered but not in the district of residence, then in such situations, it shall be appropriate to intetpret in accordance with the convenience of the parties to the case. 12. The law requires submission of proof of occurrence of force majeure. It is not an absolute provision to be applicable in all situations. As the Lockdown has been declared because of COVID-19 pandemic and as operation of public transportation is completely prohibited, this is force majeure for the parties to the case. The notice of Lockdown has been published in Nepal Gazette, Part 5, dated 2076.12.09 (2020.03.22 AD). This is a matter to be taken into judicial notice. 13.If according to Sub-section 2 of Section 8 of The Criminal Offences (Sentencing and Execution) Act, 2074 (2017 AD) requiring the sentence determination to be conducted within thirty days of the conviction, the date of hearing for sentence determination has already been appointed but could not get accomplished due to the Lockdown, in such cases the date for appearance should be considered as equivalent to expiration of the date, and it shall be lawful Page 8 of 454, 15, to determine the sentence by appointing another date of hearing when the Court resumes functioning after the lifting of the Lockdown. The problem may be resolved by extending the time-limit and the date for appearance also in the petitions of appeal, review and revision, and applications for execution of judgment, reduction in sentence or fine. Summary of the Pleading Note presented by Learned Senior Advocate and President of Nepal Bar Association Mr. Chandeswor Shrestha, on behalf of Nepal Bar Association, as amicus curiae: ‘COVID-19 infection has spread globally and the World Health Organization has placed Nepal under high risk list. In this scenario, the Nepal Bar Association drew the attention of the court in writing on 2076.12.04 (2020.03.17 AD), realizing that conducting regular services in the courts would naturally increase high risk of infection due to human congestion, Pursuant to the decision made by the Full Court of the Supreme Court on 2076.12.07 (2020.03.20 AD) all regular services, including providing dates for appearance and hearing of cases, writs and petitions, except those related to personal liberty and highly. essen suspended from 2076.12.09 (2020.03.22 AD) to 2076.12.21 (2020.04.03 AD). Based on the Lockdown declared by the Government of Nepal on 2076.12.09 (2020.03.22 AD) and also the decision made by the Full Court, the regular services provided by the court have remained I services, were completely suspended till now. Nepal Bar Association is of the clear view that a directive order may be issued to resolve the problem a8 sought by the Reporter, by making necessary amendments in the Rules and by positively interpreting the provisions of the prevailing law in order to ensure the service delivery and provide legal remedies to the service recipients, from the Court in a regular manner once the Lockdown is lifted. ‘The infection of Novel Corona (COVID-19) was first reported in the neighboring country China on 22" January, 2620 and the Lockdown was subsequently enforced to prevent the infection from 23 January, 2020. ‘Though the lockdown was eased only after 59 days, new cases are still being detected. In India, Corona infection was first reported on 15" February, 2020 and number of deaths due to infection is constantly on rise till date. In Nepal, the infection was detected on the 10" of Magh (24"" January) in a student who came by flight. At present, the number of infected patients is on rise. Due to the lack of testing equipment, the tests have not been extensive and it is likely that the number of infected people will rise. People who have moved from one place to another (in different dit ‘cts and. foreign countries) for work are not able to return to their homes due to the lockdown. Some are stranded on roads; some are in quarantine while some are in foreign lands as there are no Page 9 of 45flights. Having to stay inside the homes for about two months due to the lockdown, some are even facing mental stress for lack of work and food. Nepali people who have gone outside of Nepal and want to retum are not being able to retum. The govemment has not yet taken ‘measures to bring them back and has asked them to stay there in the country in which they are residing. In such a situation, even after the Lockdown is lifted, it might take some time for the people who have been inside their homes to undertake their mental management. Until full operation of public transport, it might take weeks for the people to reach their homes due to overcrowding, There is a chance that industrial business, employment and economy will deteriorate in a frightening manner. It is being anticipated that even after fifling of the Lockdown, it may take a long time for the country to get rid of the fear of Corona infection. ‘New laws, including judicial administration, related to such pandemic need to be formulated. ‘The government should have initially made laws in this regard by adopting summary procedure by the Parliament while the Session of the Federal Parliament was ongoing. Even after the prorogation of Parliamentary Session, it could have been addressed through an Ordinance. Now when the Parliament is in Session, it is an urgent need that necessary Umbrella Acts related to pandemic like COVID-19 be formulated by following the summary procedures. Provided that the Parliament is unable 10 enact or amend laws immediately, this honorable Court may resolve the issues of obstruction in the administration of justice through reasonable interpretation on the basis of the existing constitution and laws. Providing such resolution is essential as well. 16. Due to the prolonged Lockdown there may be situations where the statute of limitation of many might have expired; many service recipients might not have been able to get home, collect evidence, manage Court fees and appoint a lawyer to prepare required documents to be submitted to the Courts, In these circumstances, considering the period of suspension of service delivery effective from 2076.12.07 (2020.03.20 AD) to the lifting of the Lockdown, 10 days do not seem to be adequate for providing services. This might have adverse effect on ‘Pandemic-period Justice’. The management of, inter alia, registration of cases, hearing of thousands of cases, time-limit, date for appearance of cases that have been on hold for months in the courts is challenging, especially for the Supreme Court. From the perspective of access to justice, the 10 days time that had been earlier allocated for statute of limitation, time-limit and date for appearance seems absolutely inadequate in the present circumstances. 17. With regards to the statute of limitation, Section 58, Sub-sections (a) to (f) of the National Civil Procedure Code, 2074 (2017 AD) provides for conditions under which the statute of Page 10 of 4518, limitation shall not expire and will be extended. Section 58 (c) of the said Code provides the conditions in which the statute of limitation shall not expire stating “If the route for journey remained closed due to any reason, a period of fifteen days, excluding the time required for joumey, from the date of resumption of such route or means of public transportation” and, Section 58(e) states, “If there occurred a disaster, a period of ten days, excluding the time required for journey, from the date of occurrence of such a disaster.” According to Section 59, a party to the dispute is required to file the petition along with the required proof to prove the expiry of the time limit, but if the petition is filed showing the condition of not being able to submit such evidence, there is a provision to give appropriate time limit not exceeding fifteen days. As according fo that legal provision, statute of limitation shall not expire in a’situation mentioned in Section 58(c) which provides “fifteen days excluding the time required for it can be inferred journey” and Section 59(2) which provides “not exceeding fifteen days” that the legislative intent is of providing facility of maximum 30 days for extension of statute of limitation, The National Criminal Procedure Code, 2074 (2017 AD) does not seem to have any provision regarding the statute of limitation. The Code does not seem to anticipate and address the situation where the public may have to stay indoors and may not move outside for a long petiod of months and when the industries, businesses, offices, public transport and air travel all over the world may remain’suspended due to the pandemic. ‘This is not something that could be anticipated either. Both the Civil and Criminal Procedure Codes have provisions for extension of time-limit and date for appearance for a certain number of days in case of their expiry. The Court now has a vital responsibility to resolve the deadlock through interpretation of laws by ensuring simple and easy access to Courts and its proceedings for exercising the judicial and legal right to remedy ensured by the Constitution and laws for the people who are not able to reach the doors of the Court and judicial institutions due to the prolonged lockdown: Right relating to justice is an inherent right of the people. It is also a natural right of a person. ‘This right has also been guaranteed as a fundamental right in the Constitution of Nepal. Laws should be interpreted on the basis of fair hearing by an independent, impartial and competent Court or judicial bodies so that no person is deprived of the right to legal remedy. Article 126 of the Constitution provides that the rights relating to justice in Nepal shall be exercised by Courts and other judicial bodies in accordance with the Constitution, other laws and the recognized principles of justice. Article 128 states that the Supreme Court shall have the final authority to interpret the Constitution and laws. Article 133(2) empowers the Supreme Court Page 11 of 4519, 20. ai with extraordinary powers to issue necessary and appropriate orders and provide appropriate remedies for the enforcement of the fundamental rights conferred by the Constitution or any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective or for the settlement of any constitutional or legal question involved in any dispute of public interest or concem. It looks evidently necessary that the Supreme Court should be serious in providing proper direction for ensuring the right relating to justice and easy access fo justice guaranteed by Article 20 of the Constitution. Service delivery has been suspended for the sake of Coronavirus pandemic management ; means of transportation are not in operation; state of pandemic is still in existence: section 287 of the National Civil Procedure Code, 2074 (2017 AD) provides that the Full Court of the Supreme Court may make necessary provisions in order to remove difficulty, if any arises, in relation to the Court procedures in course of implementation of the Code; and Rule 99 of the National Criminal Procedure Rules, 2074 (2017 AD) pro made in the Act and the Rules, the Court may make necessary arrangements on its own in s, “ Except for the provisions respect to other Court procedures without being inconsistent with the Acts and the Rules” During the present time of pandemic, no conclusion can be drawn that the disaster has ended completely merely on the basis of the notice about lifting the Lockdown, Therefore, it is necessary to give a solution by extensively inferpreting laws in such a way that the path of justice is not obstructed for anyone and easy access to justice is ensured. The word “disaster” used in the prevailing laws shall be interpreted broadly How long the pandemic will persist is not at all certain. It does not seem that the situation of disaster will come to an end immediately, even after the lifting of the Lockdown by the government. Until the situation gets normalized, it is not possible for the service recipients, residing in and out of the country, to be present in Court within 10 days from the date of lifting of the Lockdown. It is also not possible for Courts or other judicial bodies with high number of eases to deliver their services smoothly within the given time frame. People, who need to be present in Court within time-limit, or on date for appearance or those who are to file cases, complaints or petitions, might themselves be in quarantine or isolation. The laws need to be interproted in such a way that the right to legal remedy of such people is not obstructed. ‘The law cannot be interpreted in such a way that may obstruct the means of legal remedy for citizens. Service delivery has been suspended with the bona fide intention of protecting Page 12 of 45judges, legal practitioners, court offi Is and service recipients from the risk of COVID-19. People who have already entered or want to enter the Courts with the expectations of justice should not be deprived of the legal remedy. When the Lockdown is lifted, people residing abroad or elsewhere in the country will need time to get back home; people will also need time to cope with the mental stress related 10 employment and food security management. ‘Therefore, exercising the power entrusted by Section 287 of the National Civil Procedure Code, 2074 (2017 AD) and Articles 128 and 133(2) of the Constituti the following measures need to be taken to remove the obstacles or impediments: a The state when the Lockdown is completely lifted throughout the country, the means of public transport is operational throughout the country along with the resumption of national and international flights and the declaration by the Government of Nepal that the country is free from the risk of Corona infection, should be defined as the “date of lifting of the Lockdown” for the purpose of statute of limitation, time-limit or date for appearance; As the people will still be in a state of fear of the pandemie due to lengthy period of Lockdown, and as it will take time to collect and prepare documents and evidence to be submitted in the court for filing the plaint, it does not seem feasible that eases could be filed within 10 days of lifting of the Lockdown, Thus, it shall be appropriate fo remove the obstacles or impediments by defining the “period of suspension of services” as “pandemic period” and register complaints, petitions and plaints without any application from the parties if brought within 30 days following the date of complete lifting of the Lockdown assuming that the statute of limitation had not expired; An sue has been raised that there is not any provision in the law regarding the non-expiration of the statute of limitation due to force majeure in criminal cases. Such an interpretation that the path to judicial remedy has ended due to disaster will certainly end the right relating to justice guaranteed by Article 20 of the Constitution of Nepal, It shall not be proper to assume that the legislature, while formulating the Codes did not include provisions about extension of the statute of limitation in criminal cases anticipating that access to Court for judicial remedy would be ended due to occurrence of disaster. It is not the intention of the legislature to obstruct an individual's access to judicial redress because of suspension of services by the Court due to enormous Page 13 of 45disaster. The lacuna in procedural law can be fulfilled through interpretation made by the Court, In all kinds of cases, it is appropriate to interpret the law in a manner so that the statute of limitation, time-limit and date for appearance do not expire due to force majeure. Otherwise, an individual’s right to justice shall end. Since Section 287 of the National Civil Procedure Code, 2074 (2017 AD) provides that the Full Court of the Supreme Court may make necessary relation to the Court provision in order to remove any obstacle if it arises, i procedures in course of implementation of the Code, and Rule 99 of the National Criminal Procedure Rules, 2074 (2017 AD) provides, "Except for the provisions provided for in the Act and these Rules, the Court may make necessary arrangements on its own in respect of other Court procedures without being inconsistent with the Act and these Rules”. Therefore, based on the principle of beneficial and harmonious~construetion, the statute of limitation, time limit and date for appearance should not be assumed to have expired during the period of suspension of services and it should be ensured that the statutes of limitation does not expire in criminal cases as well as at par with civil cases. Having provisions regarding the extension of the statute of limitation in eivil cases. and not including such type of provision in criminal cases does not seem to have aly rationale. Thus, it would be reasonable to have provisions regarding the extension of statute of limitation in criminal cases as well as in civil cases, d. As the detision made by the Full Court of Supreme Court regarding COVID- 19 Pandemic followed by the announcement of the Lockdown by the Government of Nepal (published in Nepal Gazette 2076.12.09, [2020.03.22 ADJ) can be ipso facto taken into account by the Court in accordance with Section 5 of the Evidence Act, 2031 (1974 AD), there shall not be any difficulties in registering a case, providing date for appearance or judicial services even without any evidence or application if any party appears before the Court stating the above reason. 22. As it is obvious that for certain time after lifting of the Lockdown there will be overerowding, of service recipients in the Courts, in such scenario it would be appropriate to provide services alternately by minimizing other services provided by the courts, by arranging possible Page 14 of 4523. 24. additional spaces with other security arrangements and securely mobilizing the existing human resources concentrating on this issue alone, As provisions regarding extension of statute of limitation, time-limit and date for appearance during disaster have been incorporated only in the National Civil Procedure Code, 2074 (2017 AD) and the National Criminal Procedure Rules, 2074 (2017 AD) and even if no such provisions have been incorporated in the Special Court Act, 2059 (2002 AD), Summary Procedures Act, 2028 (1972 AD) and other Court related regulations, there is no doubt about the application of such provisions guaranteed in the Civil and Criminal Codes in those cases as well. It has been clearly mentioned in Sub-section (2) of Section 3 of the National Civil Procedure Code. 2074 (2017 AD) and Sub-section (2) of Section 3 of the National Criminal Procedure Code, 2074 (2017 AD) that as regards the procedural matters ntot contained in other il and Criminal Codes shall be applicable. As Section 12 of the Special Court Act, 2059 (2002 AD) and clause (b) of Section 8 (1) of the Summary laws, the procedures set forth in the C Procedures Act, 2028 (1972 AD) provide that as regards the matters not mentioned in these Acts, the provisions in the National Civil and Criminal Procedure Codes shall be applicable, it is deemed appropriate to make provisions about applying to the present state of calamity the procedures as mentioned in the aforementioned law, order and directive relating to removal of obstacles. Similar! , the statute of limitation, time-limit and date for appearance in case of applications regarding enforcement of Court judgments should also be interpreted as above, as not to have expired. Since the notices of Government of Nepal or Provincial Government and Local Government will mention about non lifting of the lockdown and lack of resumption of transportation facilities in any State, by taking such matter into judicial notice, provisions should be made by appl for appearance in all courts and judicial bodies only from the date when the Lockdown is ng the aforementioned principle to extend the statute of limitation, time-limit and date completely lifted all over Nepal and all transport facilities are resumed It shall not be appropriate to resume all regular services provided by the Court merely on the basis of partial lifting of the Lockdown. In such a situation, by making arrangements for hearing of only writs, cases related to prisoners and detainees, the provisions in the Codes, in the context of areas where the Lockdown has not been lifted completely or for parties residing in such areas, should be interpreted in accordance with the above principle in such a manner that the statute of limitation, time-limit and date for appearance do not expire until lifting of the Lockdown, Page 15 of 4526. It shall not be unlawful to accomplish the tasks that could not be completed within the stipulated time period as the court proceedings could not be conducted smoothly due to the disaster. It shall be appropriate to make interpretation for giving directives to make arrangement to set the date of hearing for determination of sentencing within 30 days of lifting of the Lockdows 27. In situations where statute of limitation has not expired during the time of the Lockdown but expiration of such statute of limitation or time-Ii it soon after the Lockdown is lifted, merely on the basis of the interpretation of the Civil and Criminal Procedure Codes made above may not guarantee access to justice. For persons who were not able to step out of their homes for Jong time. it would not be possible to present plaint or rejoinder, collect evidence and get written documents prepared by contacting legal practitioners in just few days, For example, even if the Lockdown is lified on Jestha 5 (May 18), it not be possible for a person whose legal statute of limitation or time-limit expires on Jestha 6 or 7(May 19 or 20) to prepare the mentioned documents immediately and acquire legal redress; therefore, it seems necessary to resolve the deadlock and ensure access to justice by addressing such serious issues, considering the time period of the Lockdown as 'Zero Period’, and to assure that the statute of limitation or time-limit will not be considered as expited if they appear in the Court within 30 days of lifting of the Lockdown. 28. Therefore, even though the lawmakers have not formulated laws anticipating a critical situation like current pandemic, based upon the Articles 126, 128 and 133 (2) of the Constitution of Nepal and also in accordance with the recognized principle of law and justice, liberal, just and positive interpretation of law should be made and a necessary resolution should be given with regard to the Report of Case and Writ Di jon by regulating the Court proceedings so/as not to deprive the citizens of Nepal including the court users, service seekers ete. of judicial remedy. Summary of the Pleading Note presented by Learned Senior Advocate Mr. Khagendra Prasad Adhikari, President of Supreme Court Bar Association, as amicus curiae: 29. Even though clause (1) of Article 273 of the Constitution of Nepal has envisaged natural disaster or pandemic, criminal and civil laws related to Court and administration of justice do not seem to address such pandemic situation, At present, necessary arrangement is to be made immediately, by considering the judicial and quasi-judicial procedure suspended due to Lockdown as equivalent to closure, so that registration of cases and other court procedures be resumed by extending the statute of limitation, time-limit and date for appearance, if the party Page 16 of 45appears before the Court within one-month of complete lifting of the Lockdown. Judicial management of the pandemic situation does not seem possible on the basis of the existing legal provisions. In relation to the statute of limitation, Supreme Court of India, by exercising Articles 141 and 142 of the Indian Constitution, has made legal provision relating to the statute of limitation for the sake of justice in the context of the present pandemic. It seems relevant that an appropriate order be issued by the Supreme Court of Nepal as well for interim management of the statute of ion, time-limit, date for appearance, hearing and sentencing, by exercising Articles 126, 128, and 133 of the Constitution of Nepal. 30. The nation is in Lockdown due to COVID-19 pandemic. As Lockdown has been declared in other nations and transport services including the air services coming towards Nepal have been suspended, foreigners and Nepali citizens who are parties to the ease are unable to arrive in Nepal, Even if Lockdown is lified immediately in Nepal, it isnot opportune to arrive in Nepal so soon. Other countries have decided to lift Lockdown gradually on regional basis in order to minimize the possible impact on their socio-economic sector and livelihood due to Lockdown caused by COVID-19 pandemic. The Government of Nepal, through the meeting of Council of Ministers held on 2077.01.23 (2020.05.05 AD), has lifted the Lockdown in ‘Nepal on thematic basis, As Lockdown has been imposed in Nepal on regional basis where some areas are open and some are entirely shut down as per the necessity, and as movement of the people is strictly prohibited in area of closure, it is evident that people would be unable to come to the Court to seek extension of the statute of limitation, time-limit and date for appearance. A separate special arrangement should be made for the people living abroad and within the country who ate unable to appear before the court due to the Lockdown prevailing abroad and within the country. ce Articles 126,128 and 133 of the Constitution of Nepal have given power fo the Supreme Court for administration of justice in Nepal, based on the same constitutional responsibility and limits, judicial activism should be exercised for the management of the situation resultant from the present pandemic. 31. Considering the extended Lockdown, workload and human health, a minimum of one month time+limit seems appropriate to be provided, Time-limit should be calculated only after the Lockdown is completely lifted throughout the country. Even if Lockdown is lifted in Nepal and whether Lockdown is prevalent or lifted in other countries, there seems possibility of a situation where people may be unable to give or take the power of attomey as provided by Nepal law due to non-operation of transportation services including air services. In such condition for people who are abroad ( including Nepali citizens and foreigners) and are either Page 17 of 4532. 34. 35. receiving or are willing to receive service from Nepali Courts or judicial bodies, the statute of limitation and time- limit should be calculated only after the Lockdown is lifted in such ‘countries and the condition becomes favorable for their arrival in Nepal. As per the prevailing laws of Nepal, many cases are initiated/registered in. quasi-judicial bodies like District Administration Office. Land Reform Office, Forest Office, Customs Office, Inland Revenue Department, Department of Money Laundering, Rural Mu and Munici palities ities, and because of COVID-19 pandemic the task of extending statute of limitation, time-timit and date for appearance has also to be done in Nepali Courts and judicial bodies, a resolution should be given in this regard as well pursuant to Articles 126, 128(2) (3) and Article 133(2), (3) of the Constitution of Nepal. As medicine and vaccine for COVID-19 have not been developed as yet, and based on the nature of COVID-19 pandemic observed till date it may be stated that this pandemic may spread any time, and the government may impose Lockdown time and again for its control, the Order by this Court regarding extension of the statute of limitation, time-limit and date for appearance should be issued in such a manner that those orders remain effective in future as well. As the courts and bodies under the management of Supreme Court were in operation till 2076.12.07 (2020.03.20 AD), and were closed for the purpose of extension of the statute of limitation, time-limit and date for appearance effective from 2076.12.08 (2020.03.21 AD) as per the decision of 2076.12.07 (2020.03.20 AD) of the Supreme Court, therefore, necessary arrangements should be made through an order for judicial management so that the expired statute of limitation, time-limit and date for appearance get sustained within one month of normalization of situation afler nationwide lifting of the Lockdown. Further, it shall be appropriate that the Supreme Court amends court related Rules and also issues an order of Mandamus or directive order, in the name of Federal Parliament of Nepal (Parliament), Council of Ministers of Nepal, Government of Nepal, Ministry of Law, Justice and Parliamentary Affairs and others, for amendment in present provisions of criminal and civil law of Nepal, related to the statute of limitation, time-limit and date for appearance to be applicable from 2076.12.08 (2020.03.21 AD), giving it retrospective effect on par with the said Order. Summary of the Writ Petition 076-WO-0944 by Petitioner TikaramBhattaraiet.al. After the worldwide spread of Coronavirus (COVID-19) took the form of pandemic, Nepal Government declared Lockdown in Nepal effective from 2076.12.11 (2020.03.24 AD). Thus, Page 18 of 45this declaration of the Lockdown has affected the Court proceedings. This uneasy situation has prevented the exercise of the legal rights and performance of the duties by the parties whose cases are sub-judice in the courts established as per Article 127 and Specialized Court and tribunals established as per Article 152 of the Constitution, or who have come to the courts for seeking justice or date for appearance, notice, time-limit, the statute of limitation, or those employees of judicial administration who have the duty to provide date for appearance, notice and time-limit, or those legal practitioners who represent on behalf of the parties. Time-limit or statute of limitation of the parties to the cases has either expired or is in the process of expiration and the end of the pandemic is also uncertain, As the time-limi statute of limitation, date for appearance or duration of notice seem to be affected continuously because of it, an appropriate judicial resolution in this regard is essential from the honorable Court, and since there is no any alternative remedy in this regard, for the uninterrupted use, enforcement and exercise of fundamental, legal and constitutional rights of the citizens, it is prayed for the Article 133) and (3) of the Constitution of Nepal: a. To make arrangements that time-limit, statute of limitation, date for appearance and uance of the following order or any other appropriate order pursuant to duration of notice as provisioned in prevailing law do not expire unless otherwise provided or up to 15 days after the formal announcement of the end of pandemic made by the Government of Nepal, and to make arrangements for the parties to take the date for appearance, who are able to come to the Court during that period in person, or through electronic technology by visiting any other nearby Court, b. To make and cause to-be made separate interim legal provisions having summary process and procedures instead of the existing one for filing and hearing of petitions related to fiindamental rights, and in relation to time-limit for submission of written response orits extension. c. To make and cause to be made an interim arrangement in consultation with Nepal Bar Association and others, for registration and hearing of cases by making appropriate provisions about cause-list management, hearing of eases, and workplace security, as provision related to cause-list management and hearing of cases cannot be resumed in the present situation as in normal condition due to the pandemic, and the judiciary cannot remain indifferent to its obligation to protect the fundamental and legal rights of citizens even during this period; Page 19 of 45d. To implement and cause to be implemented the arrangements, through the Chief Registrar of the Supreme Court by corresponding with the concerned security agencies, so that there will be no obstacles in the movement of the legal practitioners representing the parties or legal atfomeys appointed for date for appearance, and the human resources working in the Court on the basis of permission or pass provided by the concerned Court or the bar units even during the Lockdown: tion 076-WO-0944 filed in this Court by Advocate TikaramBhattaraict.al. on 2077.01.28 (2020.05.10 AD) prayed for formulation of fe. The writ appli ‘Sunset! law in consultation with the Supreme Court and others in this regard, and for making arrangements to send a copy of the Order to be issued by the Apex Court after hearing of this petition to the Ministry of Law, Justice and Parliamentary Affairs, as the sole authority to make law is the prerogative of the Legislature; 36. An order had been issued in Writ No, 076-WO-0944 by the Single Bench of this Court on 2077.01.29 (2020.05.11 AD) to club together the Report No, 076-RE-0392 Page 20 of 45Order 37. The present Report and the writ petition scheduled as per the Rules before the bench for rendering a verdict were subjected to study. During the hearing held on 2077.02.05 (2020.05.18 AD), the submission made by the learned Senior Advocate Mr. Chandeshwar Shrestha, Chairman of Nepal Bar Association, appearing as “amicus curiae” was heard. He argued that once the Lockdown is lifted, legal complications and practical problems may arise in terms of the statute of limitation, time- mit, date for appearance, sentencing, and some other aspects of service delivery. The prevailing laws and rules do not provide for any complete solution to the problems arising in the judicial process due to COVID-19 pandemic, ‘The existing provisions are inadequate. The right to justice and access to justice of the people should not be compromised due to the Lockdown, Larger Full Bench of the Supreme Court, pursuant to Articles 126, 128 and 133 of the Constitution of Nepal, is competent to interpret the laws to provide resolution in this issue. While providing resolution, the situation of lifting of the Lockdown should be defined pragmatically; partial opening should not be considered as complete lifting of the Lockdown. Stating that management should be made considering the period of Lockdown as 'Zero Period’, he mentioned that the opinion of Nepal Bar Association had been presented in a Pleading Note. Learmed Senior Advocate Mr. Harihar Dahal, appearing on behalf of Nepal Bar Association as “amicus curiae", stated that while issuing an order the provisions in various Nepali laws including the Arbitration Act and Arbitration Rules regarding the statute of limitation, time-limit and date for appearance should be incorporated comprehensively. After the Lockdown is lifted completely, a period of one month as extension for the statute of limitation, time-limit etc. should be determined. Consideration should be also given to the fact that not only the transportation has been disrupted due to the Lockdown rather all the activities of the people have become confined, Coronavirus pandemic is a different type of crisis than disasters such as earthquake, volcano etc. He submitted that the current difficulties should be addressed on the basis of the provisions in the Constitution and that the Court is competent enough to provide such solution. 38. Learned Senior Advocate Mr. Khagendra Prasad Adhikari, Chairman of the Supreme Court Bar Association, appearing as “amicus curiae", pleaded that while resolving the current issue, the existing judicial system should also be taken into consideration. As the Supreme Court has got the inherent power of animating smooth administration of justice, the present complexities should be addressed by exercising the same power. Citing the example of a decision of the Page 21 of 4539. Indian Supreme Court, he pleaded that the Supreme Court should exercise judicial activism to ensure access to justice in special circumstances. He argued that the present situation attracts the principle of necessity, and it should be viewed as a dispute of public concem. The criminal procedure should also be considered in relation to the National Civil Code, 2074 (2017 AD) which has provisioned for the extension of statute of limitation. The Supreme Court should issue an Order, inch ing also in the name of the government, regarding the ned in the deadlock for the time being. He further pleaded that other matters have been menti Pleading Note, and argued that the prevailing Nepali laws including the Infectious, Diseases ary Order should be Act alone would not solve the current issue and, therefore, a nece: issued. Learned Senior Advocate Mr. Shambhu Thapa, appearing on behalf of the Supreme Court Bar Association as “amicus curiae", pleaded that the current discourse should not be viewed as a matter of law-making but as a matter of operation of administration of justice. According to Article 273 of the Constitution, the pandemic™can be seen as a state of is not a normal situation. The legal lacunae seen in the judicial process emergency, and including the statute of limitation, time-Limit and date for appearance should be viewed in the context of the nature of the COVID-19 pandemic, Apart from this, people's right to health is also related to it, To address the current complexities, it is necessary to adopt a golden or creative rule of interpretation, not-a literal interpretation of the law. As it is a matter of ensuring access to justice in special circumstances, it should not be understood in the sense of law-making. He argued that since the service recipients in poverty and deprivation are more likely to be affected by the disease, attention should be paid to the psychology of the service recipients and interpretation should be made liberally keeping in mind the right to access to justice of the service recipients. ‘The petitioner of 076-WO-0944, learned Advocate Mr. Tikaram Bhattarai, referring to the arguments mentioned in the petition, argued that the Order on the present complications should be given in the context of the writ petition and not on the basis of the Report. While issuing such an order, concerns of the judicial and local levels including the quasi-judicial bodies. should also be addressed. In addition to this, the time-limit for lodging complaint against promotion related decision in Public Service Commission and nine other types of complaints including arbitration is also to be considered. ‘The present situation requires development of the "Pandemic Jurisprudence". The current situation should be seen as an ‘eclipse’ in the law and an order of interim nature should be issued to remove the deadlock. ‘The Supreme Court in its past decisions has also interpreted that the statute of limitation and Page 22 of 4541 42. time-limit are for the convenience of the party, and now it should not be allowed to use all these matters against the interest of the party. Therefore, he argued that the order should be issued to facilitate the parties by considering the period of Lockdown as 'Zero Period’ Appearing on behalf of the writ petitioner, leamed Advocate Mr. Govinda Sharma "Bandi" argued that to make the judicial process efficient, conducive and on par with the interests of the service recipients, the Court should order a ‘suo moti’ directive ensuring public interest. Also, the pleadings from leamed advocates, appearing on behalf of the petitioner, Mr. Ramesh Badal, Mr. Ambar Bahadur Raut, Mr. Saroj Krishna Ghimire, Mr. Mukunda Adhikari and Mr. Pushparaj Poudel were heard. Learned Joint-Attomey Mr. Sanjeev Raj Regmi, appearing on behalf of the Office of the Attomey General, submitted that the views of the Office of the Attorney General on the issue were already mentioned i the Pleading Note. The legal bases for extending the statute of limitation seem weak. He further argued that also by amending the Court rules some issues related to the statute of limitation could be addressed. Responding to the Report submitted by the Case and Writ Division of the Supreme Court along with the writ petition of 076-W0-0944, scheduled to be decided today after completing the hearing on 2077.02.05 (2020.05.18 AD), this Apex Court has to decide the following issues: In order to introduce clarity with regard to ambiguity and confusion regarding the expiration of the statute of limitation, time-limit, date for appearance during the period of the Lockdown, and other management related such judicial proceedings that have appeared and that may arise due to the ongoing COVID-19 pandemic, whether the Court can issue necessary orders and ditectives to facilitate access to justice by removing the obstructions faced by the service recipients due to the Lockdown. Also, if such an order can be issued, what type of order should be issued? While considering about the decision, it seems contextual to mention about some facts about the infection of COVID-19 and the impacts it has caused on human life before deciding on the legal questions. The pandemic, also referred to as "Novel-Corona", "Coronavirus" and "COVID-19",is believed to have begun from the last week of December 2019. It has been almost six months since the COVID-19 pandemic began and it has spread till now around the ‘world (almost in all countries). According to the statisties', at the time of deciding this ease, 5,788,782 people have already been infected with COVID-19 worldwide, and 357,425 of *hitps:/www worldometers.infolcoronavirus/2utm_campaign=homeAdvegas!? - Accessed on: 2077/02/15 at 730 AM Page 23 of 45