How Far The Court Can Decide In Criminal Cases?

“The criminal law does not accept the notion of what may be called de facto crime.”1 Therefore, vital thing in criminal law is the question of legality; and for court the principle of limitation: whether the particular conduct amounts to crime as per the existing law or not? If the law does not amount the particular act as crime in the time and place it committed, then, the court does not criminalize. For example, sexual intercourse between husband and wife was not contrary to the criminal law, but following the 2063 amendment of Muluki Ain, the sexual relation without the consent of his wife is an offence of marital rape. This might be due to the public’s changing attitudes towards domestic violence. However, the court did not and could not criminalize for the same offence before the 2063 amendment, i.e. before it was codified into law.

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