Jaspal Singh, J. ( 1 ) CAN a Metropolitan Magistrate or, for that matter, a Specialjudge transfer investigation to the C. B. I. ? This, precisely, is the question posedbefore us in a reference made by none else but one of us (A. K. Srivastava, J. ). ( 2 ) MR. A. K. Datta,whoappearsforthec. B. I. feels that in the absence of consentobtained under Section 6 of the Delhi Special Police Establishment Act, neither ametropolitan Magistrate nor a Special Judge has any such power and in supportrelies upon two judgments. One from this Court itself and the other coming fromkarnataka High Court. ( 3 ) THE judgment of this Court is reported as C. B. I, v. Satpal and Ors. , Criminal P. 257/95 and 315/95. It comes from the pen of Hon ble Mr. Justice J. K. Mehra and is dated 22/05/1997. It was observed therein that the C. B. I, being the creation of the Delhispecial Police Establishment Act, consent of the concerned State Governmentwould be required in accordance with Section 6 of the Act before assigninginvestigation to it and that consequentlya Metropolitan Magistrate has no jurisdictionto order such transfer without such consent. ( 4 ) SECTIONS 5 and 6 of the Delhi Special Police Establishment Act run as under: "5. Extension of powers and jurisdiction of Special Police Establishment to otherareas- ( I ) The Central Government may by order extend to any area (includingrailway areas), in "a State, not being a Union Territory the powers andjurisdiction of members of the Delhi Special Police Establishment for theinvestigation of any offences or classes of offences specified in a notificationunder Section 3. (2) When by an order under Sub-section (1) the powers and jurisdiction ofmembers of the said police establishment are extended to any such area, amember thereof may, subject to any orders which the Central Governmentmay make in this behalf, discharge the functions of a Police Officer in that areaand shall, while so discharging such functions, be deemed to be a member ofa police force of that area and be vested with the powers, functions andprivileges and be subject to the liabilities of a Police Officer belonging to thatpolice force. (3) Where any such order under Sub-section (1) is made in relation to any area,then, without prejudice to the provisions of Sub-section (2) any member of thedelhi Special Police Establishment of or above the rank of Sub-Inspector maysubject to anyo any orders which the Central Govemnent may make in this behalf,exercise the powers of the officer in charge of a police station in that area andwhen so exercising such powers shall be deemed to be an officer in charge ofa police station discharging the functions of such an officer without the limitsof his station. 6. Consent of State Government to exercise of powers and jurisdiction.- Nothingcontained in Section 5 shall be deemed to enable any member of the Delhispecial Police Establishment to exercise powers and jurisdiction in any areain a State, not being a Union Territory or Railway area, without the consent ofthe Government of that State. ( 5 ) BEFORE we proceed ahead, it may be noticed that in Satpal s case (supra)Mehra, J. , In support of the view taken by him, sought to draw force from twojudgments of this Court. The first is reported as Personal Point v. State, 63 (1996) DLT804, while the second is reported as Capt. Harcluran Singh v. The Commissioner ofpolice, 1996 JCC 695. The said two judgments, if we may say so with respect, hadnothing to do with the question raised. The first was a Criminal Misc. (Main)petition wherein a request was made to the Court for transfer of investigation fromthe local police to the C. B. I. The request was turned down as it was not shown thatthe investigation being carried on by the local police was not satisfactory or waspartisan or inadequate. Capt. Har Charan Singh Kohli s, case was a petition underarticles 226/227 of the Constitution of India. The question as to whether ametropolitan Magistrate or a Special Judge can refer investigation to the C. B. I, ornot was even remotely in issue in that petition. ( 6 ) THE other judgment emanating from Karnataka High Court and authoredby Hon ble Mr. Justice K. Ramachandriah holds that a Magistrate acts "improperlyand illegally" in referring a complaint to the C. B. I, for investigation and that Section156 (3) of the Code is a bar to such reference. ( 6 ) THE other judgment emanating from Karnataka High Court and authoredby Hon ble Mr. Justice K. Ramachandriah holds that a Magistrate acts "improperlyand illegally" in referring a complaint to the C. B. I, for investigation and that Section156 (3) of the Code is a bar to such reference. ( 7 ) THE petitioner says that the Supreme Court itself has held that a Magistratehas the power under Section 156 (3) of the Code to order investigation by the C. B. I. and in support our attention has been drawn to State of West Bengal v. Sampathla, air 1985 SC 195 . ( 8 ) THE Supreme Court in West Bengal v. Sampath, AIR 1985 SC 195 had anoccasion to deal with Sections 5 and 6 of the Delhi Special Police Establishment Act. In the said case relating to a mysterious death, as investigation by the local policewas found to be unsatisfactory a learned Single Judge of the Calcutta High Courttransferred it to the C. B. I. Question arose as to whether before such direction toconduct investigation sanction under Section 6 of the Act was necessary. Thesupreme Court observed: "one of the controversies which loomed large before the Division Bench of thecalcutta High Court was as to the appointment of the DIG, CBI to inquire intothe matter in the absence of proper consent of the State Government. Thatquestion has not been recanvassed before us and it has been accepted bycounsel for all the parties including the Additional Solicitor General thatwhile Section 6 of the Delhi Special Police Establishment Act, 1946 ( act forshort) would require the consent of the State Government before jurisdictionunder Section 5 of that Act is exercised by officers of that establishment, whena direction is given by the Court in appropriate case, consent envisaged undersection 6 of the Act would not be a condition precedent to compliance withthe Court s direction. In our considered opinion Section 6 of the Act does not applywhen the Court gives a direction to the CBI to conduct an investigation and Counselfor the parties rightly did not dispute this position. In this view, the impugnedorder of tile learned Single Judge and the appellate decision of the Divisionbench appointing DIG, CBI to inquire into the matter would not be open toattack for want of sanction under Section 6 of the Act". In this view, the impugnedorder of tile learned Single Judge and the appellate decision of the Divisionbench appointing DIG, CBI to inquire into the matter would not be open toattack for want of sanction under Section 6 of the Act". (Emphasis supplied) ( 9 ) DOES it not provide a complete answer? Does it not show that no consentof the State Government is required when the Court gives the direction? Mr. A. K. Datta appearing for the C. B. I, says no . According to him when the Supreme Courttalks of the Court" it refers to the High Court and not to the Court of a Metropolitanmagistrate and, in suppor the seeks to lean heavily on the judgment of the Karnatakahigh Court in Criminal Petition No. 916/1989 Between CM. Iqbaland Smt. Vijaya@ Geetha and Another decided on the second day of November, 1989 and to whichreference has already been made above. In the said case a Magistrate had transferredinvestigation to the C. B. I. Question arose as to whether he could do so and in thatcontext the judgment of the Supreme Court in Sampath s case came to be noticed. The learned Single Judge observed : "according to Sri N. Santosh Hegde, the words "the Court" used by thesupreme Court in the case of State of West Bengal v. Sampathlal, means the Highcourt and not any Court including the Court of a Magistrate. In my opinion, the said argument appears to be a sound one as if it was theintention of the Lordships of the Supreme Court that the consent envisagedunder Section 6 of the Act is not necessary,when the Court gives a directionfor the investigation, their Lordships would have used the words "a Court"or "any Court" and not the words "the Court". " ( 10 ) OF course, in Samyath La/ s case the order under challenge was passed bycalcutta High Court. It is also true that the judgment of the Supreme Court whiledealing with the legality of the order, has repeatedly used the definite article "the"before "court" but then, with due respect, we do not tend to agree that the Supremecourt, while using that definite article before "court" meant to refer to the powersof a High Court only. Had it been so, in paragraph 16 of the judgment the Supremecourt instead of using the definite article "the" before "court", would have usedthe indefinite article "a" before "court". Had it been so, in paragraph 16 of the judgment the Supremecourt instead of using the definite article "the" before "court", would have usedthe indefinite article "a" before "court". We feel that in paragraph 16, as thesupreme Court was referring to the procedure laid down in the Code of Criminalprocedure and more particularly in Section 173, when it used the expression "thecourt", it did not mean "the High Court" only but had in mind "a Court" or "anycourt" empowered to act under that provision. For ready reference, we reproducebelow the said paragraph extracted from the judgment of the Supreme Court: "the procedure laid down in the Code is clear and definite. It may be that ina given case the Court on being prima fade satisfied from circumstancesappearing from the record that the statutory agency has not worked in aneffective way or the circumstances are such that it may reasonably bepresumed or inferred that the statutory agency may not be able to dischargeits function of investigation fairly and impartially might reasonably considersupplementing the procedure but as we have an eady indicated, there was noadequate material on the record for the learned Single Judge to be satisfied thatthe facts warranted appointment of a Special Officer". ( 11 ) WE feel tempted to refer to yet another judgment of the Supreme Courtreported askashmeri Devi v. Delhi Administration and Anr. ,. AIR 1988 SC l323. The caserelated to serious allegations of murder by torture against the police and furtherabout the haphazard manner in which the investigation against the accused policeofficers was investigated with a view to shield the guilty members of the Delhipolice. The Supreme Court, having been satisfied that the police had not acted ina forthright manner in investigating the case, passed the following order : "since according to the respondents charge-sheet has already been submittedto the Magistrate we direct the Trial Court before whom the charge-sheet has beensubmitted to exercise his powers under Section 173 (8), Cr. P. C. to direct the Centralbureau of Investigation far-proper and thorough investigation of the case. On issueof such direction the Central Bureau of Investigation will investigate the casein an independent and objective manner and it will further submit additionalcharge-sheet, if any, in accordance with law. The appeal stands disposed ofaccordingly". (Emphasis supplied) ( 12 ) DOES it not clinch the issue? On issueof such direction the Central Bureau of Investigation will investigate the casein an independent and objective manner and it will further submit additionalcharge-sheet, if any, in accordance with law. The appeal stands disposed ofaccordingly". (Emphasis supplied) ( 12 ) DOES it not clinch the issue? Does it not show that the Trial Court beforewhom the charge-sheet is submitted has powers under Section 173 (8), Criminal Procedure Code todirect the Central Bureau of Investigation to investigate? Mr. Dutta however, feelsotherwise, and, in support, he again seeks to lean on the judgment of the Karnatakahigh Court already referred to above. ( 13 ) THE Karnataka High Court in C. M. Iqbal s case (supra) has, after noticingthe passage reproduced above, proceeded to deal with the same as follows : "sri. Tomy Sebastian, learned Counsel for the first respondent-complainant,placed emphasis on the words to exercise "his powers" under Section 173 (8),cr. P. C. to direct the Central Bureau of Investigation for proper and thoroughinvestigation of the case, (emphasis is added) and contended that it is clear frothe use of the words "his powders" with reference to the Magistrate concernedin that case that he had powers under Section 173 (8) of the Code of direct thecbi to make a proper and thorough investigation of the case. I find it difficult to accept the said argument inasmuch as their Lordships ofthe Supreme Court have directed the Magistrate to direct the CBI to makeproper and thorough investigation of the case in exercise of the powers vestedin him under Section 173 (B) of the Code as in my opinion, the words "hispowers" cannot be interpreted tomean that he himself had powers to directthe CBI under Section 173 (B) of the Code to make a proper and thoroughinvestigation of the case. Therefore, the said decision is also of no assistanceto the point canvassed by Sri. Tomy Sebastian. " ( 14 ) WITH respect, we do not subscribe to the view taken. The learned Judge,with respect, gives no reason in support of his "opinion". To us the order passedby the Supreme Court is clear as sunshine. Therefore, the said decision is also of no assistanceto the point canvassed by Sri. Tomy Sebastian. " ( 14 ) WITH respect, we do not subscribe to the view taken. The learned Judge,with respect, gives no reason in support of his "opinion". To us the order passedby the Supreme Court is clear as sunshine. It is not the order of the Supreme Courtwhich invests the Magistrate with powers to refer the matter to the C. B. I. It is onlya reminder to the Magistrate that he has such powers under Section 173 (8) of thecode, and a direction to exercise the said powers so vested in him. The order doesnot create, power. It merely proclaims powers which already exist and merelyordains its exercise. If the Supreme Court or a High Court directs a Magistrate toexercise the powers already vested in him by the Code, such a direction, given inexercise of supervisory powers, would not imply, in the absence of any provisionto the contrary, that the Magistrate cannot himself proceed to exercise those powers. Section 173 (8) nowhere provides that the Magistrate can exercise his powers underthat provision only on direction by the High Court or by the Supreme Court. Withrespect we find ourselves unable to agree with the view of the Karnataka High Courtthat the words "his powers" as used by, the Supreme Court "cannot be interpretedto mean that he himself had powers to direct the C. B. I, under Section 173 (8) of thecode" to make investigation. ( 15 ) IN short, we feel that a Magistrate has powers under Section 156 (3) or undersection 173 (8), as the case maybe, to direct the C. B. I. , to make investigation and thatin face of such an order the question of obtaining sanction under Section 6 of thedelhi Special Police Establishment Act does not arise. We are also of the opinion thatsince a Special Judge is empowered to take congnizance without the case against theaccused being committed and in trying the accused he is required to follow theprocedure for trial of warrant cases by a Magistrate, he would be deemed to be amagistrate for purposes of Section 173 (8) of the Code of Criminal Procedure. ( 16 ) THIS answers the reference. However, a few more words need to benecessarily added before drawing the curtain. ( 16 ) THIS answers the reference. However, a few more words need to benecessarily added before drawing the curtain. ( 17 ) A Magi strate, before he proceeds to exercise his powers, must be prima faciesatisfied "from circumstances appearing from the record that the statutory agencyhas not worked in an effective way or the circumstances are such that it mayreasonably be presumed or inferred that the statutory agency may not be able todischarge its function of investigation fairly and impartially" [see State of W. B. v. Sampath Lal, (supra)]. ( 18 ) WE may also say that no order should be passed without prior notice to thestate. ( 19 ) WHAT further needs to be added is that the power conferred under Section156 (3) of the Code of Criminal Procedure is exercisable at the pre-cognizance stage. In a case where cognizance of an offence has been taken by the Magistrate undersection 190 (l) (a) of the Code, he cannot go back to the pre-cognizance stage and thuscannot, of his own, order further investigation by banking upon Section 156 (3) ofthe Code. ( 20 ) AS for a complaint case, we may point out that Section 202 of the Code ofcriminal Procedure comes in at a stage when some evidence has already beencollected by the Magistrate. We feel that in such a situation the Magistrate is surelyempowered but well within the limits prescribed by Section 202 ofthecode to directan investigation by the C. B. I, for the purpose only of deciding "whether or not thereis sufficient ground for proceeding" and with a view to completing proceedingsalready instituted upon the complaint pending before him. But this would furtherbe subject to the satisfaction of the Magistrate, on the basis of the material placedbefore him, that the statutory agency may not be able to investigate effectively, fairlyand impartially. ( 21 ) LET the petition be posted before a learned Single Judge for disposal in thelight of what has been observed by us. PETITION posted before Single judge.