ORDER :

Heard.

1. Instant petition is against the order dated 24/02/2022 whereby an application filed by the petitioner under Section 311 of the Cr.P.C. was rejected.

2. The brief facts of this case are that the petitioner is facing a trial under Section 341, 354, 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 before the Additional Sessions Judge, F.T.S.C. (POCSO) Manendragarh, District Korea. The prosecution witnesses were examined. The mother and father of the prosecutrix who were examined as PW-1 and PW-3 turned hostile. The prosecutrix was examined as PW-2. The prosecutrix in her statement in the examination-in-chief supported the case of the prosecution, however in the cross-examination she denied the commission of offence by the petitioner, at that juncture the court in exercise of power under Section 165 of the Evidence Act asked the question to the prosecutrix as to which version of her is correct then she again affirmed the happening of the incident. Under these circumstances, on a later stage an application under Section 311 of the Cr.P.C. read with section 165 of the Indian Evidence Act was moved. Learned court below rejected the application by holding that on the earlier occasion the accused/petitioner was being represented by a competent lawyer and with the change of lawyer section 311 of Cr.P.C. cannot be invoked.

3. Learned counsel for the petitioner would submit that the power under Section 165 of the Indian Evidence Act though gives a discretionary power to the court but in the facts of this case, the petitioner should have been given an opportunity to cross-examine to remove the ambiguity. It is stated initially the prosecutrix supported the case of the prosecution but in the cross-examination incident was disowned and subsequently again when the court asked the question, she supported the version of the prosecution, therefore in order to clarify the same, the application under Section 311 of the Cr.P.C. should have been allowed which would in turn lead to fair opportunity of trial.

4. Learned State counsel opposes the argument and would submit that the order sheet itself would reflect that fair opportunity was given to the petitioner and it is the discretion of the court to allow or disallow the question when there is power under Section 165 of the Evidence Act and it would amount to filling up the lacuna, therefore the order is well merited.

5. Perused the document, the statement and the order of the learned court below. The statement of PW-1 and PW-3 who are the mother and father of the prosecutrix would show that they have not supported the case of the prosecution. The prosecutrix who was examined as PW-2, she in her examination-in-chief supported the case of the prosecution, however, in the cross-examination she completely disowned the happening of the incident. It is at this juncture, the court in exercise of power under Section 165 of the Evidence Act asked the question to clarify wherein the prosecutrix answered that the petitioner had committed wrong with her. For the sake of brevity Section 165 of the Indian Evidence Act reads as under:-

“165. Judge's power to put questions or order production.-The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question;

Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved;

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer o