JUDGMENT :

I.A. No. 6950 of 2022 has been filed for amendment in the prayer portion of the petition.

2. Learned counsel appearing for the petitioners submits that in two occasions, the prosecution has filed the petition under Section 311 Cr.P.C. He submits that those two petitions were allowed, without calling upon any reply on behalf of the defence in the first case. He further submits that the petitioners have filed a petition under Section 311 Cr.P.C. by the defence, which was rejected, vide order dated 29.06.2022. He also submits that the girl has married with a boy and the girl has stated in her statement recorded under Section 164 Cr.P.C. that she wants to live with the petitioner No. 1. He further submits that the learned court has rejected the prayer of the petitioner only on the ground of delay.

3. Learned A.P.P. appearing for the State as well as learned counsel appearing for the O.P. No. 2 has objected the argument of learned counsel appearing for the petitioners. They jointly submit that the learned court has rightly rejected the prayer of the petitioners.

4. In view of the above facts and submissions of the parties, the court has gone through the impugned order and finds that the petition filed under Section 311 Cr.P.C. has been rejected on the ground of delay. It is the discretionary power of the Court but at the same time the object underlying under Section 311 Cr.P.C. is that there cannot be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving the ambiguity in the statements of the witnesses.

5. In that view of the matter, the prayer made in the aforesaid I.A. is allowed.

6. Thus, the order dated 29.06.2022 passed in S.T. No. 275 of 2009 is under challenge in this petition. Mr. Deepak Bharti, learned counsel appearing for the petitioners confined his prayer now with regard to order dated 29.06.2022 and he is not pressing the other prayers made in the main petition.

7. Let the aforesaid I.A. be treated as a part of the main petition.

8. It has been argued by the learned counsel appearing for the petitioners that two petitions filed by the prosecution under Section 311 Cr.P.C. were allowed by the learned court and the first petition was allowed without calling upon any objection on behalf of the petitioners. He submits that pursuant thereto the trial has almost started de novo. He further submits that the petition filed under Section 311 Cr.P.C. by the petitioners before the learned court on the ground of re-examination of Divya Choudhary is very essential because some love letters which were sent by her in her writing is clear cut indication for saving herself from honour killing, due to which she changed her stand after her statement under Section 164 Cr.P.C and on that ground, petition has been filed. It was also stated in the said petition that while deciding the A.B.A., it has been argued that the matter relates to love affairs, while granting the bail to the accused Mayank Giri. He submits that the learned court has dismissed the said petition.

9. The learned counsel appearing for the O.P. No. 2 submits that the learned court has rightly rejected the petition. The learned counsel appearing for the State submits that Section 311 Cr.P.C. is the discretionary power of the learned court and that order has been rightly passed.

10. In view of the above, the court has perused the impugned order and finds that one of the reason of rejecting the petition was that only the prosecution has the right to examine the girl, which will not sustain in the eyes of law. The object underlying under Section 311 Cr.P.C. is that there cannot be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving the ambiguity in the statements of the witnesses, examined so far.

11. In Rajendra Prasad v. Narcotics Cell through its Officer, [(1999) 6 SCC 110], the Hon'ble Supreme Court in paragraph 8 of the judgment took note of the observati