Jayant Patel, J.—The present petition under Section 482 of CrPC, preferred by CBI, is directed against the order dated 26.08.2010 passed by the learned Additional Chief Judicial Magistrate, Special Court for CBI No. 2 (hereinafter referred to as ‘the learned Magistrate’ for the sake of convenience) in Application below Exh. 53 preferred by the Respondent No. 3 and 4 herein (original Accused No. 1 and 5 respectively), whereby the learned Magistrate has made a reference to this Court under Section 395 of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C./Code’ for the sake of convenience) to decide the question as to whether the application made by Shri N.K. Amin under Section 306 is constitutionally legal or not.

2. The short facts relevant for the purpose of the present petition are as under:—

2.1 In connection with the encounter of Sohrabuddin Sheikh and the elimination of his wife Kauserbi, which was being investigated by the State Police (vide FIR-CR No. 5/2005), the Apex Court entrusted the investigation to CBI, which took over the investigation on 1.02.2010 and registered the case being R.C. No. 4(S)/2010-MUM as per the decision of the Apex Court reported at