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 Magistrate's 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 u