Khandu Khan vs State
2021 Latest Caselaw 12134 Raj

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     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               S.B. Criminal Misc(Pet.) No. 3734/2021

Khandu Khan S/o Hot Khan, Aged About 68 Years, R/o Village
Bamarla Der, Bhanwar, Tehsil Sedwa, District Barmer. (At Present
Lodged In District Jail Barmer)
                                                                     ----Petitioner
                                    Versus
State, Through Pp
                                                                   ----Respondent


For Petitioner(s)         :    Mr. R.J. Punia
For Respondent(s)         :    Mr. Gaurav Singh, PP



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                    Order

03/08/2021

     In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

     Learned    counsel       for   the     petitioner          submits   that   the

controversy involved in this matter is squarely covered by the

judgment rendered by this Hon'ble Court at Jaipur Bench in Jeetu

Bohra Vs. State of Rajasthan reported in 2015 LawSuit

(Raj.) 924, relevant portion of which reads as follows:


     "(8). Sub-section (1) of Section 36-A of the NDPS Act
     provides that notwithstanding anything contained in
     the Code of Criminal Procedure, all offences under the
     Act which are punishable with imprisonment for a term
     of more than three years shall be triable only by the
     Special Court constituted under Section 36 of the Act.
     It is not disputed that in Rajasthan Several Special

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Courts have been constituted/established by the State
of Rajasthan under Section 36 of the NDPS Act for the
trial of offences punishable under the provisions of the
Act and the trial Court also has been declared to be a
Special Court within the meaning of Section 36 of the
Act. Sub-section (2) of Section 36-A of the Act
provides that when trying an offence under the Act, a
Special Court may also try an offence other than an
offence under the Act with which the accused may
under the Code of Criminal Procedure be charged at
the same trial. It is thus clear that if in a case the
accused is charged with an offence under the NDPS
Act and any other offence also, he shall be tried by the
Special Court constituted under the provisions of the
Act not only for the offence punishable under the
NDPS Act, but for such other offence also in the same
trial.
(9) In view of the fact that when a Special Court has
been constituted under Section 36 of the NDPS Act for
the trial of offences under the NDPS Act and as per
sub-section (2) of Section 36-A of the Act, such Court
has been conferred power to try an accused for other
offence also for which he has been charged alongwith
the charge for an offence under the NDPS Act and in
view of clause (b) of Section 26 Cr.P.C., even if a
Special Court has been constituted under the general
provisions of Section 9 Cr.P.C. by the State of
Rajasthan for trial of offence relating to fake currency
notes for the whole of the State of Rajasthan. It
cannot be said that the Special Court constituted
under the provisions of NDPS Act has no jurisdiction to
try an accused for offences under Sections 489-B and
489-C IPC even if he has been charged for these
offences alongwith a charge for an offence under

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                                        NDPS Act. In my view that a Special Court constituted
                                        under the provisions of a Special Act must have
                                        precedence over a Special Court which has been
                                        constituted/established       under       the     general   powers
                                        conferred under the provisions of Cr.P.C.
                                        (10) In view of the above, no illegality and perversity
                                        is found in the impugned order requiring interference
                                        by this Court under Section 482 Cr.P.C."

                                        Learned counsel for the petitioner further submits that the

                                   offence under the NDPS Act as well as Sections 489-A, 489-B and

                                   489-C of IPC have been found to be made out against the present

                                   petitioner. Learned counsel also submits that the learned Chief

                                   Judicial Magistrate has ordered separate charge-sheet for the

                                   same FIR just because two offences were involved.

                                        Learned Public Prosecutor fairly submits that the precedent

                                   law of Jeetu Bohra (supra) is applicable in the present case.

                                        In light of such submissions, the present petition is allowed

                                   and the order dated 08.12.2020 passed by learned Chief Judicial

                                   Magistrate, Barmer in C.R. No.275/2020 is hereby quashed and

                                   set aside and the learned court below is directed to pass fresh

                                   orders while keeping into consideration the precedent law of Jeetu

                                   Bohra (supra). Stay petition stands disposed of accordingly.



                                                                (DR.PUSHPENDRA SINGH BHATI),J.

60-Zeeshan

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