Kemal Pasha, J.

1. This matter has come up in reference by a learned Single Judge of this Court. The questions referred are:

(1) Whether the Public Prosecutor himself has the right or authority to file a petition under Section 173(8) of the Cr.PC. seeking further investigation, on the basis of the materials on record without the request of the investigating officer

(2) Is such a petition under Section 173 (8) of Cr.P.C. filed by the Public Prosecutor himself maintainable

2. According to the learned Single Judge, there are divergent views in the matter as expressed by two other learned Single Judges of this Court. In order dated 16.06.2009 in Crl.R.P. No.968/2009, a learned Single Judge of this Court held that there is no embargo on the right of the Public Prosecutor to file a petition seeking further investigation under Section 173(8) Cr.P.C. In that particular case, the said court ordered a further investigation under Section 173(8) Cr.P.C. on such an application filed by the Public Prosecutor. In Crl.R.P. No.968/2009, it was held that the learned Sessions Judge has not committed any jurisdictional error in entertaining and approving the said application filed by the Public Prosecutor under Section 173 (8) Cr.P.C.

3. Another learned Single Judge of this Court vide judgment dated 27.07.2012 in W.P.(C) No.16812/2012 considered the question whether a Public Prosecutor can move an application seeking further investigation of the crime. The learned Single Judge held that the Public Prosecutor is expected to be impartial and unbiased and more so fair to the accused also who is facing trial. It was held that if at all he has got any sustainable grounds that the investigation has not been conducted fairly, then he has to bring it to the notice of the appropriate authority and get appropriate orders to see that necessary steps are taken for further investigation of the crime. In short, it was held that the Public Prosecutor has no locus standi to move such an application.

4. In the present case, based on a complaint filed by the first respondent alleging offences punishable under Sections 143, 147, 148, 448, 506(ii) and 379 IPC read with Section 149 IPC, the matter was investigated upon and then the police filed a final report on 15.10.2010 arraigning the review petitioners alleging offences punishable under Sections 427, 448 and 506(ii) read with Section 34 IPC. The learned Judicial First Class Magistrates Court-I, Tirur has taken cognizance of the same and filed it as C.C.826/11. Thereafter, the Assistant Public Prosecutor Gr.I filed C.M.P.No.948/12 before the said court seeking permission for further investigation of the case under Section 173(8) Cr.P.C., thereby specifically pointing out certain defects in the investigation and latches from the part of the investigating officer in conducting a proper investigation. The learned Magistrate, after considering the reasons stated in the petition, allowed the same and permitted the investigating officer to conduct further investigation under Section 173(8) Cr.P.C. It is the said order, which is under challenge in this Crl.R.P.

5. Heard the learned counsel Sri.Saji Isaac for the revision petitioners, the learned Public Prosecutor Sri.Roy Thomas for the 1st respondent and the learned Senior Counsel Sri.T.Krishnanunni and P.KMohanan Palakkal for the 2nd respondent.

6. In the old Code of Criminal Procedure, there was no identical provision to that of Section 173(8) which is present in the Code of Criminal Procedure, 1973. The same is a newly added provision in the Code of Criminal Procedure, 1973. The same is the result of the recommendation of the Law Commission in its 41st report that the right of the police to make further investigation should be statutorily affirmed. The Law Commission stated:

"14.23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused".

7. Accordingly, in the Code of Criminal Procedure, 1973, (Cr.P.C., for short) a new provision as Section 173(8) was introduced, which says:

"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-sec. (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

8. In Ram Lal Narang v. State (Delhi Administration) [AIR 1979 SC 1791 [LQ/SC/1979/11] ], the right of the investigating officer to conduct a further investigation even in a case wherein a final report has already been filed under Section 173(2) Cr.PC. and despite its taking cognizance of by the court, on coming to know about fresh facts or materials as per Section 173(8) Cr.P.C., was upheld. At the same time, as words of caution it was held in paragraph 21 that:

"We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light."

9. In Ram Lal Narang (supra) it was further held:

"Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigation on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation."

10. Apart from holding that it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation, cautiously the Supreme Court has not imposed a restriction that only on obtaining the permission from the court the investigating officer should conduct such further investigation.

11. In Randhir Singh Rana v. State (Delhi Admn.) [AIR 1997 SC 639 [LQ/SC/1996/2258] ], the Apex Court, after agreeing to the aforesaid legal proposition enunciated in Ram Lal Narang (supra), posed a question that "if for further investigation, the police should ordinarily seek the formal permission of the court, can the court on its own not ask for further investigation, if the same be thought necessary to arrive at a just decision of the case" In that case, the Apex Court held that within the gray area to which their Lordships have referred, the Magistrate of his own cannot order for further investigation.

12. In Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh and others [AIR 1999 SC 2332 [LQ/SC/1999/604] ], it was held in paragraphs 10 and 11:

"10. Power of the police to conduct further investigation, after laying final report is recognised under S. 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Administration) (AIR 1979 SC 1791 [LQ/SC/1979/11] : (1979 (Crl.) LJ 1346). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation.

11. In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in S. 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the Magistrate with such an obligation." (Emphasis supplied)

There, it was held that the court has power to direct the police to conduct further investigation and such power cannot have any inhibition at all. In ordering such a further investigation under Section 173(8) Cr.P.C., the court is not obliged to hear the accused before any such direction is made.

13. In Hemant Dhasmana v. Central Bureau of Investigation [(2001) 7 SCC 536] [LQ/SC/2001/1765] , it was held:

"When the report is filed under the sub-section the Magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the Court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person it is open to the Court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the Court feels, on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contrary conclusions made by the Investigating Officer in the final report. Then it is open to the Court to independently apply its mind to the facts emerging therefrom and can even take cognizance of the offences which appear to him to have been committed, in exercise of his power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code."

14. It was further held in Hemant Dhasmana (supra):

"Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a Court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice" (Emphasis supplied)

Therefore, the court, in its own motion also, can trigger a further investigation for the ends of justice, by assuming the power under Section 173(8) Cr.P.C.

15. In Hemant Dhasmana (supra), the Honble Supreme Court has relied on a three-Judge Bench decision of the Apex Court in Bhagwant Singh v. Commissioner of Police [(1985) 2 SCC 537] [LQ/SC/1985/151] , wherein it was held that three options are open to the court on receipt of a report under Section 173(2) when such report states that no offence has been committed by the persons accused in the complaint. They are, (1) the court may accept the report and drop the proceedings; or (2) the court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (3) the court may direct further investigation to be made by the police.

16. In the three-Judge Bench decision of the Supreme Court in India Carat Pvt. Ltd. v. State of Karnataka [(1989) 2 SCC 132] [LQ/SC/1989/105] , it was held in paragraph 16:

"The position in, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."

17. In Union Public Service Commission v. S. Papaiah, [(1997) 7 SCC 614] [LQ/SC/1997/1253] , it was held in paragraph 13:

"The Magistrate could, thus in exercise of the powers under Section 173(8), Cr.P.C. direct the CBI to further investigate the case and collect further evidence keeping in view the objection raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer would be governed by sub-sections (2) to (6) of Section 173, Cr.P.C."

18. In Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762] [LQ/SC/2012/1138] , it was held that further investigation in terms of Section 173 (8) Cr.P.C. can be made in a situation where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court. The report on such further investigation under Section 173(8) Cr.P.C. can be termed as a supplementary report. In Vinay Tyagi (supra), the Apex Court has relied on the decision in Hemant Dhasmana(supra).

19. In Vinay Tyagi (supra), it was held:

"A Magistrate has the power to direct further investigation" after filing of a police report in terms of /S.173(6) of the Code. Neither the scheme of the code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of S.173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of S.156(3) and the language of S.173(8) itself. In fact, such power would have to be read into the language of S.173(8). The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. It has been a procedure of proprietary that the police has to seek permission of the Court to continue "further investigation" and file supplementary chargesheet."

20. From all the above, it is evident that when a final report has been filed under Section 173(2) Cr.P.C. by the investigating officer, if the court on applying its mind is satisfied that there is lapse or defects in the investigation or if it is satisfied that a further investigation has to be conducted, the Court in its own motion can trigger a further investigation under Section 173(8) Cr.PC. to be done by the investigating officer. The investigating officer himself can exercise such a jurisdiction under Section 173(8) Cr.P.C., if he wants to conduct a further investigation in case he receives some fresh facts or materials, after the filing of the final report under Section 173(2) Cr.PC. He can conduct such a further investigation and file a supplementary final report before Court under Section 173(8) Cr.P.C. At the same time, when the investigating agency wants to conduct such a further investigation, it is ordinarily desirable that the investigating officer should inform the said matter to the concerned court and seek formal permission for conducting such an investigation, when the court has already taken cognizance of the offences based on the final report already filed in the matter. After informing the court regarding the proposed further investigation and seeking such a formal permission, the investigating officer can continue with such further investigation, even without waiting for any such permission from the court.

21. The next question that arises for consideration is whether the Public Prosecutor can file such an application seeking permission to conduct further investigation in the matter under Section 173(8) Cr.P.C.

22. The learned counsel for the Revision Petitioners by relying on the decision in A. R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500] [LQ/SC/1984/42] argued that in interpreting a statutory provision the court should read the Section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the court to read the Section in such a manner as to render it to some extent otiose. In paragraph 22 of A. R. Antulay (Supra), it was held:

"It is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor; Nazir Ahmad v. King Emperor and ending with Chettiam Vettil Ammad v. Taluk Land Board, laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."

23. The argument is that Section 173(8) Cr.P.C. does not contemplate any motion by the Public Prosecutor or the court to have a further investigation in the matter. It has become trite that the court has the power in its own motion to order further investigation under Section 173(8) Cr.P.C. if it is not satisfied about the investigation or if it is satisfied that some more material has to be collected in such investigation. Therefore, when a court has such a power to order further investigation in its own motion, can it not be said that somebody can invite the attention of the court to the lapses in the investigation and the need of such a further investigation in the matter

24. The question is one of locus standi. In A. R. Antulay (supra), it was held that locus standi of the complainant is a concept foreign to criminal jurisprudence and it is a well recognized principle of criminal jurisprudence that any one can set the criminal law into motion in all cases, except those cases in which the statute itself creates an embargo for the same. In paragraph 6, it was held:

"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enact or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision."

25. In R. Sarala Vs. T.S. Velu and others [AIR 2000 SC 1731 [LQ/SC/2000/724] ], it was held in paragraph 12:

"Public Prosecutor is appointed, as indicated in Section 24 of the code, for conducting any prosecution, appeal or other proceedings in the Court. He has also the power to withdraw any case from the prosecution with the consent of the Court.

He is the officer of the Court. Thus Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court."

26. In Centre for Public Interest Litigation and others Vs. Union of India and others [(2012) 3 SCC 117] [LQ/SC/2011/554] , it was held:

"A Public Prosecutor cannot be equated with a person who is holding an office under the State. He cannot be treated as a government employee.

It may be that he should be a lawyer in the government panel. However, the independence of the Public Prosecutor from any governmental control is the hallmark of this high office."

27. In Shrilekha Vidyarthi Vs. State of U.P. [(1991) 1 SCC 212] [LQ/SC/1990/571] , it was held in paragraph 14:

"The function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it."

28. In Babu Vs. State of Kerala [1984 Cri. LJ 499], it was held that "a Public Prosecutor is really a minister of justice and his job is none other than assisting the State in the administration of justice and in fact he is not a representative of any party". The same view has also been expressed in R. Vs. Banks [(1916-17) All ER Rep. 356].

29. In Ummer Vs. State of Kerala [2010 (1) KLT963], it was held:

"It is only since the request for further investigation came from the side of the victim that the Court was obliged to give reasons for further investigation. Had the motion come from the investigating officer or the Public Prosecutor, then there was no question of their obtaining the permission of the Court or the Court granting permission since further investigation is also a matter within the prerogative of the Police and the Judge imposed duty of formally seeking the permission of the court is really to inform the Court that further investigation is afoot so that the Court may hold up the proceedings before it."

30. In Samaj Parivartan Samudaya Vs. State of Karnataka [(2012) 7 SCC 407 [LQ/SC/2012/478] = 2012 (2) KLT SN 124 (C.No.119) SC], it was held:

"Once the investigation is conducted in accordance with the provisions of the Cr.P.C., a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under S.173 Cr.P.C., upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of S.173(8) Cr.PC. open with non obstante language that nothing in the provisions of S. 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-s. (2) has been forwarded to the Magistrate. Thus, under S.173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made. The casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard. The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice. Where the investigating agency has submitted the charge sheet before the court of competent jurisdiction, but it has failed to bring all the culprits to book, the Court is empowered under S.319 Cr.P.C. to proceed against other persons who are not arrayed as accused in the chargesheet itself. The Court can summon such suspected persons and try them as accused in the case, provided the Court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it. A suspect has no indefeasible right of being heard prior to initiation of the investigation, particularly by the investigating agency. Even, in fact, the scheme of the Code of Criminal Procedure does not admit of grant of any such opportunity."

31. It follows that the Prosecutor has a duty to the State, to the accused, and to the court. The Public Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success.

32. It seems that the Prosecutor should always form an independent opinion regarding the sufficiency of the investigation. In case he notices any serious lapse on the part of the investigating officer or he feels that for the ends of justice the investigation ought to have collected some more evidence on any particular aspect, it cannot be said that the Public Prosecutor is helpless and should remain as a mute spectator by swallowing all what was done by the investigating officer. In such cases, the Public Prosecutor can bring that fact to the notice of the concerned court for satisfying the court regarding the necessity to invoke the powers conferred on the court under Section 173(8) Cr.P.C.. All procedural laws are meant to advance justice and not to stifle the ends of justice. Where the court finds that the matter requires further investigation in view of the partisan attitude of the police, or that the investigating agency had committed mistakes on account of ignorance or otherwise, the court can direct the investigating agency to conduct further investigation in the case under Section 173(8) Cr.P.C. The act of the court in giving such a direction cannot be construed as an act of the court in interfering with the jurisdiction of the investigating agency to investigate further in the matter. The act of the court in directing the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. is nothing but directing the investigating agency to exercise the jurisdiction conferred on them under Section 173(8) Cr.P.C.

33. When it is found that the question of locus standi of a person to set the criminal law into motion is totally alien to the criminal jurisprudence, in fact, a threadbare examination of the locus standi of a Public Prosecutor to point out to the court that there are some serious lapses in the investigation or the investigation ought to have proceeded with further for the ends of justice, is not a much debatable issue. At the same time, it is true that a Prosecutor cannot assume the role of either the complainant or the accused. The Prosecutor is an officer of the court and his duty is mainly to assist the court to trace out the truth and to uphold the ends of justice.

34. From all the above, it can safely be concluded that when the court has the power to direct the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. in a matter even after taking cognizance on the final report filed by the investigating agency before it under Section 173(2) Cr.PC., either the de facto complainant, who is aggrieved on account of any lapse committed by the investigating agency in conducting the investigation or in not conducting the investigation in another line to which it ought to have been conducted, or the Public Prosecutor who notices serious lapse committed by the investigating agency in not conducting the investigation properly, can invite the attention of the court through an application for satisfying the court in respect of the necessity to invoke the power of the court under Section 173(8) Cr.P.C.. Even without any such wake up call, the court on its own can invoke its power under Section 173(8) Cr.P.C.

35. Matters being so, we do not find any legal infirmity or jurisdictional error in the impugned order passed by the learned Magistrate and, therefore, this Crl.R.P is only to be dismissed, and we do so.

In the result, this Crl.R.P stands dismissed. The reference is answered as follows:-

(1) There is nothing wrong on the part of the Public Prosecutor to file a petition under Section 173(8) Cr.P.C. before court seeking an order directing the investigating officer to conduct further investigation under Section 173(8) Cr.P.C. When the court can exercise the power to order further investigation under Section 173(8) Cr.P.C., such petition filed by the Public Prosecutor can only be treated as an application filed by the Public Prosecutor to invite the attention of the court regarding the necessity to invoke the power of the court under Section 173(8) Cr.P.C. It is not the petition filed by the Public Prosecutor in such case, whereas, it is the order that is being passed by the court that matters.

(2) If any such petition is filed by the Public Prosecutor under Section 173(8) Cr.P.C., the court has to apply its mind on it and to satisfy itself with regard to the necessity, if any, to invoke the power of the court under Section 173(8) Cr.P.C. On a satisfaction that such power has to be invoked, the court has to do it, and if it feels that there is no such necessity, the court can ignore such petition filed by the Public Prosecutor, and to reject the same.