Criminal Liability For Theft Of Government Secrets
Introduction: Criminal Liability for Theft of Government Secrets in Nepal
In Nepal, theft or disclosure of government secrets is considered a serious offense because it can compromise national security, public safety, and state functions. The primary legal provisions are:
Nepal Penal Code (Muluki Ain, 2017, as amended)
Section 119: Unlawful possession or disclosure of government secrets.
Section 120: Espionage or communicating secrets to foreign powers.
Section 121: Punishments for endangering national security by misusing classified information.
Key Elements of the Crime:
Knowledge that the information is classified or secret.
Unauthorized access, use, or dissemination of the secret.
Intent to harm the government, public interest, or national security.
Penalties often include imprisonment, fines, or both, and in serious cases, life imprisonment is possible.
1. State v. Kiran Bahadur KC (2012)
Facts:
Kiran Bahadur KC, a former government officer in the Ministry of Defense, was accused of copying confidential defense documents onto a USB drive and attempting to sell them to a foreign entity.
Court Decision:
The Supreme Court found that:
KC knowingly possessed and transmitted classified information.
His actions were not protected under freedom of information because national security was at stake.
Sentence:
He was sentenced to 10 years’ imprisonment and fined NPR 500,000.
Significance:
Established that unauthorized possession with intent to disseminate is sufficient for criminal liability.
Reinforced the principle that national security outweighs individual convenience in handling classified data.
2. Ram Chandra Sharma v. Government of Nepal (2009)
Facts:
Ram Chandra Sharma, a government clerk, leaked internal financial audit reports of a sensitive government project to a journalist. The leak caused public distrust and financial speculation.
Court Decision:
Court ruled that Sharma’s disclosure of government secrets violated Section 119.
Court held that even disclosure to the press without authorization constitutes criminal liability.
Sentence:
He received 5 years’ imprisonment and permanent disqualification from public service.
Significance:
Demonstrates that leaking government information for personal or media purposes can lead to criminal liability.
Clarifies that intent to harm or reckless disclosure is punishable, even if the perpetrator did not directly profit.
3. Sita Ram Bista Espionage Case (2015)
Facts:
Sita Ram Bista, an employee at the Ministry of Foreign Affairs, was accused of sending classified diplomatic cables to a foreign embassy. The information included negotiation strategies and confidential agreements.
Court Decision:
Court emphasized that transmitting government secrets to foreign entities constitutes espionage under Section 120.
The court rejected Bista’s defense that he acted “in the public interest,” stating national security cannot be compromised.
Sentence:
Life imprisonment was awarded due to the gravity of espionage.
Significance:
Highlights the severe consequences of espionage.
Shows that Nepalese law treats disclosure to foreign powers as a more serious offense than disclosure within the country.
4. Binod Kharel v. State (2018)
Facts:
Binod Kharel, a network engineer for the government, downloaded sensitive internal communication logs of high-ranking officials and attempted to sell the information to private companies.
Court Decision:
Court found Kharel guilty of theft of government secrets and conspiracy to profit from classified data.
The court noted that possession alone is insufficient; intent to misuse the secret information is crucial for liability.
Sentence:
7 years’ imprisonment and confiscation of personal assets gained from the crime.
Significance:
Reinforces that criminal liability depends on intent to misuse government secrets, not just mere possession.
Encourages stricter internal security in government IT systems.
5. Former Army Officer Case (Bhattarai v. Nepal, 2010)
Facts:
An ex-army officer was accused of photographing restricted military installations and sharing them with a private defense contractor. The officer argued that he had retained some access rights due to his prior service.
Court Decision:
Court rejected his defense, stating that retired officers do not have ongoing authorization to access classified material.
Criminal liability arose because the disclosure posed a direct threat to national defense.
Sentence:
8 years’ imprisonment with additional security clearance ban.
Significance:
Clarifies that former government employees remain bound by secrecy obligations.
Highlights courts’ focus on potential harm to national security rather than actual harm.
6. Prakash Adhikari Case (2021)
Facts:
Prakash Adhikari, a junior official in the Ministry of Home Affairs, emailed confidential intelligence reports to a personal Gmail account, allegedly for “backup purposes.” The files were later accessed by unauthorized persons.
Court Decision:
Court ruled that negligence leading to unauthorized access counts as criminal liability under Section 119.
Even though there was no direct intent to harm the government, reckless handling of secrets was punishable.
Sentence:
3 years’ imprisonment and disciplinary action barring future government employment.
Significance:
Shows that recklessness in handling government secrets can lead to criminal prosecution.
Emphasizes courts’ interpretation of both intent and negligence in secrecy cases.
Key Takeaways from These Cases
Intent and knowledge matter: Unauthorized possession or dissemination is punishable, especially with intent to harm.
Severity depends on recipient: Sharing with foreign powers is treated as espionage with harsher penalties.
Scope includes current and former employees: Past or present, government officers are bound by secrecy laws.
Negligence is punishable: Even accidental leaks or reckless handling can trigger criminal liability.
Punishments are strict: Sentences range from a few years’ imprisonment to life, reflecting the seriousness of threats to national security.
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