Published On: February 28, 2023 10:01 AM NPT By: Arun Bam
KATHMANDU, Feb 28: The Nepalese Army has registered a case in the military court against Major General Prem Shahi, who has been detained for two months over financial irregularities.
After the necessary investigation by the "Court of Inquiry" was completed, a case was filed against Shahi in the military court on Sunday. Along with Shahi, two more people have been charged. Among them are Judge Advocate General's Department’s Colonel Mahendra Jung Shah and Lieutenant Colonel Kuldip Timilsena.
The Army Headquarters, which started the investigation by forming a Court of Inquiry headed by Major General Baburam Shrestha, started a case against the three people on the basis of the same investigation report.
Brigadier General Krishna Prasad Bhandari, spokesperson for the Nepalese Army, said that the court process has started after the completion of the investigation of the Court of Inquiry.
"From Sunday, the case has gone to the court process. The court will do the rest,” said Brigadier General Bhandari. The army spokesman further said that the case has been filed against them for not maintaining financial discipline.
According to sources, Chief of Army Staff (CoAS) Prabhu Ram Sharma formed the military court headed by Tara Dhwaj Pandey. According to Section 67 of the Army Act, 2006, a seven-member tribunal has been constituted under the leadership of Pandey. The members include Major General Krishna Dev Bhatt, Brigadier General Jeevan Dahal working in the Judge Advocate General's Department, other brigadier generals of the tribunal include Pawan Khatri, Prakash Deuja, Bishnu Raut and Colonel Narayan Bahadur Thapa.
Investigation and case proceedings seems illegal
If the information provided by the military headquarters is taken into consideration, then the investigation conducted against Major General Shahi and two other officers and the trial process conducted in the military court appear to be illegal according to the Army Act, 2006.
Section 7 of the Army Act has provisions relating to offences and from Sections 38 to 65 of the Act mention 27 offences. But none of the above sections has any provisions related to offense under the title of 'not maintaining financial discipline'. Offenses relating to 'discipline' and 'corruption' are under separate headings. Similarly, in section 66, murder and rape are included as crimes under other laws "unless it is between soldiers".
Likewise, Section 52 has legal provisions for disciplinary and conduct-related offenses. Even this section of the military Act has no provisions related to financial discipline. The provisions related to corruption are included in Article 62. In this section, it is mentioned that there are special provisions related to crimes of corruption, theft, torture and disappearance.
Lack of financial discipline is associated with corruption. But the Court of Inquiry does not have the authority to investigate and adjudicate corruption offenses under Section 62. That power has been given to a three-member special committee under sub-section (2) of the same section. The special committee chaired by the Deputy Attorney General appointed by the Government of Nepal, the Chief of the Legal Branch of the Ministry of Defense and the representative of at least one official of the Judge Advocate General's Department of the Nepalese Army has the right to look after this issue.
According to the Act, the hearing and settlement of corruption-related offense cases is done not by the military court as per section 67, but by the special military court as per section 119. Sub-section 1 of Section 119 has a provision of setting up a military special court for such cases.
There is an arrangement to have a High Court Judge appointed by the Government of Nepal upon the recommendation of the Judicial Council as the chairman of the special military court. Secretary of the Ministry of Defense and the Chief of the Judge Advocate General's Department shall be the members of the special court.
Similarly, the Special Military Court hears appeals against judgments or final orders passed by the General Military Court and Summary General Military Court.
In Sub-section 4 of this section, there is a provision that an appeal can be made to the Supreme Court within 35 days of the decision of the military special court
Investigation of "many" crimes!
On the basis of an error in the certificate of Major General Shahi, the Army Headquarters had prematurely handed over the letter of 'retirement leave' to Shahi.
The Supreme Court (SC) had ordered that Major General Shahi's retirement should not be implemented and the petitioner should be allowed to work. Shahi had reached the Army Headquarters on January 3 carrying the same order of the SC. But the military police arrested him on the orders of CoAS Sharma.
On the same day after the arrest, the military headquarters said, "He was arrested on the basis of a complaint of not maintaining financial discipline." After the arrest, a Court of Inquiry was formed on January 4 and the investigation was started.
According to sources, CoAS Sharma has designed a scheme to frame Major General Shahi as he went to the SC against the army’s 'chain of command'. Apart from this, sources claim that former CoAS Purna Chandra Thapa is also connected with Shahi's case. There has been allegations in the army circle that CoAS Sharma took revengeful action against the officers who worked closely with former CoAS Thapa.
Major General Shahi is also considered as an official close former CoAS Thapa. “Since Major General Shahi was close to former CoAS Thapa, CoAS Sharma had cast an evil eye on him (Shahi) from the beginning. However, CoAS Sharma thought that Shahi could be sent home on January 4 by showing the error in his certificate over his age," said a source close to Shahi. "But surprisingly, Major General Shahi went to the Supreme Court. After he came back to the service with the order of the Supreme Court, a strategy was adopted to frame him."
Sources say that the Court of Inquiry set up to investigate and probe the case has sought evidence in "many" more cases than that.
On January 5, when the Court of Inquiry went to search the house of Major General Shahi located in Budhanilkantha Municipality-2, Bhangal, the Court of Inquiry handed over a letter to the family stating that the house search would be conducted not in the case of 'financial discipline' but in the case of 'damage to property and military discipline and conduct'.
Similarly, Sources said that a case was filed against Major General Shahi in the military court for an offense under Section 39(e) of the Act. Article 39 includes 'Military mutiny offenses'. There is a provision that ``if one deviates from patriotism and duty, or if such person tries to deviate from patriotism and duty, or encourages such person to deviate'', it is considered as an offense related to military mutiny.
The source said that Shahi was framed for making attempts to form a group against CoAS Sharma and his close circle.
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