Mary Joseph, J.

1. In the petition on hand, an order passed by Judicial First Class Magistrate Court, Kunnamangalam on 12.12.2013 in C.M.P. No. 7170/2013 in C.C. No. 297/2012, copy of which is appended to the petition on hand as Annexure-G, is sought to be set aside. C.M.P. No. 7170/2013 is an application filed by the Sub Inspector of Medical College Police Station, Kozhikode through Assistant Public Prosecutor under Section 173(8) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking for an order to conduct further investigation in the case. The learned Magistrate has considered the application and dismissed the same for reasons which are incorporated in paragraph 8 of the order, extracted hereunder;

"8. Heard the counsel for the petitioner and the prosecution and perused the documents and the reason stated in petition to conduct further investigation. I am of opinion that the reason stated in the petition is not sufficient enough to order further investigation, since further evidence can be adduced by the petitioner during trial and also can proceed against any person not being the accused in the charge sheet, if it appears from the evidence that such person has committed any offence. Almost all matters referred by the petitioner in the petition can be proved by him during trial without conducting further investigation."

2. It has been observed by the learned Magistrate that no grounds are made out for ordering further investigation and that if further evidence is adduced by the petitioner during trial, any person, not being accused in the chargesheet can be proceeded against.

3. It is contended by Sri Anoop P.V., the learned counsel for the petitioner that the defacto complainant is entitled to seek for further investigation under Section 173(8) Cr.P.C. According to him, a learned single Judge of this Court in Thomas Athanacious Vs. State of Kerala 2016 (2) KHC 193 [LQ/KerHC/2016/371] ] has held that the defacto complainant has got the right to seek for further investigation under Section 173(8) Cr.P.C. in a case wherein all proper accused were not arrayed. Relying on the dictum, the learned counsel seeks for setting aside the order passed by the learned Magistrate, appended to as Annexure-G.

4. Sri V.V. Surendran, the learned counsel for the respondents has contended that the order passed by the Magistrate is legal and proper and interference is un-called for.

5. In the backdrop of the rival contentions, it is incumbent on this Court to have a look at the legal provision in Cr.P.C. which empowers a court to order further investigation. Sub-section (8) of Section 173 Cr.P.C. is the relevant provision, extracted hereunder for easy reference;

"173. Report of Police officer on completion of investigation.-

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(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (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 (2)."

6. It is clear from the above reading that the power to apply for further investigation is conferred by Cr.P.C. only on an Officer in-charge of a Police Station and that too upon collection of further evidence, by him, either oral or documentary. When further evidence have been collected by an Officer in-charge of Police Station regarding an issue seized of, as envisaged by the provision, he shall forward to the Magistrate a brief of such evidence in the form prescribed, so as to enable the court to pass an order granting permission for further investigation.

7. In the case on hand, the SHO of the jurisdictional Police Station did not approach the court below, but the defacto complainant. The defacto complainant cannot invoke power under Sub-Section (8) of Section 173 Cr.P.C. Sub-Section (8) of Section 173 is unambiguous in it's words and meaning. It confers jurisdiction upon an Officer in charge of a Police Station. In the case on hand, an Officer in charge of the Police Station did not file an application stating that further evidence have been collected. The defacto complainant alone has approached the learned Magistrate by filing an application seeking to array one person, who was omitted by the investigating officer to be arrayed as accused in the case on hand.

8. In the decision cited, a Single Bench of this Court has observed that the defacto complainant can prefer an application under Sub-Section (8) of Section 173, if all proper accused were not arrayed. Since Section 173(8) did not confer alike power on the defacto complainant, the dictum laid down by the learned Single Judge in Thomas supra is inapplicable in the case on hand. Cr.P.C. confers power upon the court under Section 319 Cr.P.C. to array an additional accused and try him if evidence against him has come on record during any inquiry or trial in a case in seizin of the court.

Section 319 Cr.P.C. is extracted hereunder for easy reference;

319. Power to proceed against other persons appearing to be guilty of offence.-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

9. If such a power is conferred on the Court, the defacto complainant need not have to worry about the matter. If proper evidence has been adduced to establish that the involvement of the person omitted to be arrayed as accused is also there, then the Court can suo motu act upon that evidence and the jurisdiction under Section 319 Cr.P.C., can be invoked to add him as additional accused and proceed against him in trial. When such a right is available, there is absolutely no merit in the learned counsel for the petitioner contending that the learned Magistrate has gone wrong and unjustified in declining to invoke the power under Sub-Section (8) of Section 173 Cr.P.C.

10. This Court did not see any sufficient ground to interfere with the order impugned in the case on hand. The order under challenge is purely legal. It is not vitiated by infirmity, illegality or impropriety, calling for this Court's interference.

11. Crl.M.C. fails and is dismissed.