The Special Judge exceeded jurisdiction by ordering CBI investigation without state consent, violating statutory provisions.

1. Heard. Rule. Rule made returnable forthwith with consent of parties.

2. A question that arises for consideration in the present petition is, "Whether the directions given by the learned Special Judge, Aurangabad under S.156(3) of Code of Criminal Procedure , directing CBI, i.e. the present petitioner to make an investigation into the complaint filed by Respondent No. 1 and to submit report thereof, is legal and within the powers of the learned special Judge.?"

3. Respondent No. 1 herein had preferred an application / complaint bearing Criminal Misc. Application No. 170/2010 before the Special Court at Aurangabad, dealing with anticorruption cases and had sought in the said application / complaint, a direction against CBI, i.e. present petitioner to investigate into the said complaint under S.156(3) of Code of Criminal Procedure (for short, the Code)

4. The learned Special Judge, vide impugned order has accordingly directed such investigation under S.156(3) of the code by the present petitioner. By order passed on 6th January, 2011, this Court has stayed the implementation and operation of the impugned order.

5. In the present petition, it is the contention of the petitioner that the order so passed by the learned Special Judge is patently illegal, unsustainable and without jurisdiction.

6. Shri Deshpande, learned Assistant Solicitor General of India (ASGI) appearing for the petitioner submitted that the Central Bureau of Investigation (CBI) is an independent investigating agency, established under the Delhi Special Police Establishment Act , 1946 (for short, DSPE Act) and is controlled solely by the Union of India. The learned ASGI has further submitted that from the provisions of S.5 and S.6 of DSPE Act, it is clear that the officers of CBI cannot operate within the territory of the state without notification and consent of the State Government. The learned ASGI further submitted that the CBI is not a local police station within the jurisdiction of the concerned Special Judge, Aurangabad, so as to issue directions under S.156(3) of Cr.P.C. The learned ASGI further submitted that S.193 of Cr.P.C. Bars the Sessions Court from taking direct cognizance of the offences and S.190 of Cr.P.C. Also contemplate that the Judicial Magistrate, First Class can only take cognizance of offence on a complaint filed before him. The learned ASGI reiterated that since the office of the petitioner is not situated within the local jurisdiction of the learned Special Judge, the order passed by the learned Special Judge, directing investigation under S.156(3) Cr.P.C. by the petitioner is patently illegal and in excess of the jurisdiction vested in the said Court.

7. The learned ASGI, in support of his contentions, relied upon two Judgments of the Hon'ble Apex court; first in the matter of CBI v. State of Rajasthan , 2001 (3) SCC 333 and the another in the case of Sakiri Vasu v. State of U.P. and Others, 2008 (2) SCC 409 and prayed for setting aside the impugned order.

8. The learned counsel appearing for Respondent No. 1 supported the impugned order. The learned Counsel submitted that it was well within jurisdiction of the learned Special Judge to direct investigation by the present petitioner under S.156(3) CrPC. He, therefore, prayed for dismissal of the writ petition.

9. We have carefully considered the submissions advanced on behalf of the petitioner as well as Respondent No. 1. We have also perused the impugned order. We have also gone through the relevant provisions in Cr.P.C. And the Prevention of Corruption Act as well as the provisions of Delhi Police Special Police Establishment Act.

10. We would first deal with the argument of the learned ASGI that the Special Judge is not a `Magistrate' and, therefore, cannot