IN THE MR. TANMAY BATHAM, LD.
JUDICIAL MAGISTRATE
FIRST CLASS (NI ACT) - 03, WEST DISTRICT, TIS HAZARI
COURTS, NEW DELHI
MISC. APPLICATION No. 2025
in
Ct. Case No. of 2021
IN THE MATTER OF:
Nidhi Arora …Complainant
Ve r s u s
Vishal Malhotra ...Accused
APPLICATION UNDER SECTION 348 BNSS, 2023/ 311 CRPC,
1973 FOR RECALLING OF WITNESS ON BEHALF OF THE
COMPLAINANT
MOST RESPECTFULLY SHOWETH
1. That the present application is being preferred by the complainant
for recalling of witness/examination of the person in attendance/to
lead evidence in the aforementioned case. The same is pending
before the Ld. Court and is listed next for recording statement of
accused on 13.10.2025.
2. That the right of the complainant to lead evidence has been closed
by the Ld. Court vide order 01.09.2025, observing that the matter
is around five years old and has been lingering due to the default
of the complainant, which the complainant has failed to
substantiate despite having due opportunity, and that the
complainant was given last opportunity to lead her CE on
23.01.2025, which she failed to do even on subsequent dates of
hearing, i.e., 06.05.2025 and 01.09.2025.
3. That the said failure to conduct/lead evidence was neither willful
or malafide but was due to serious, reasonable and unavoidable
reasons. That cross-examination of CW-1, i.e., the complainant
has already been done at length, however the same was deferred
after she fell ill, severely. The complainant is a widow, whose
husband has recently died and a single-mother who is under heavy
litigation and finding it difficult to manage her daily life. As such,
the complainant got diagnosed with acute depression and has been
under medication since then. The complainant often suffers major
depressive episodes. The counsel for the complainant has not
intentionally caused delay to the present proceedings and has only
sought adjournment on occasions where it was absolutely
necessary, reasons for which are very well explained in the present
application. A copy of certificate dated 11.10.2025 stating that the
complainant is suffering from prolonged depression and recurrent
anxiety for which she has to be under strict medication is annexed
herewith as Annexure A-1.
4. That on the first instance, i.e., 23.01.2025, the counsel of the
complainant and the complainant could not come before the Ld.
Court as the complainant fell ill and was experiencing serious
depression/anxiety attacks right in the court complex when she
was with counsel and coming to attend the proceedings. Further,
on the next instance, i.e., on 06.05.2025, the complainant again
fell ill and had to go see her doctor/physician. However, the
complainant still showed sincerity and attended the court
proceedings through VC. An OPD prescription/medical report
from the very next day, i.e., 07.05.2025 is in itself evident of the
fact that she was severely ill and having a major depressive
episode. A copy of the said OPD prescription is annexed herewith
as Annexure A-2.
5. That the right of the complainant to lead evidence was closed by
this Ld. Court vide order dated 01.09.2025 in view of the irregular
conduct and failure to attend the court proceedings on the dates of
hearing, however the same not intentional or deliberate. The
complainant has not kept well during the relevant period of time
and the same can be observed from her ongoing clinical treatment
and by the fact that she had to be hospitalized several times in
between. A copy of various medical/OPD prescriptions from the
relevant period of time is annexed herewith as Annexure A-3
(Colly).
6. That it is pertinent to mention that the delay in aforementioned
proceedings was not intentional on the part of the complainant or
their counsel and that the case of the complainant would be
severely prejudiced if the opportunity to recall and lead evidence
is not granted. The right to lead evidence is a valuable right, and
its denial, amount to the violation of principles of natural justice
and will limit this Ld. Court from rendering a just judgment.
7. That it is humbly submitted that Section 311 of CrPC/ 348 BNSS,
2023 is an enabling provision and the purpose behind the section
is that the true case should not go unpunished for want of material
evidence and innocent person should also not be punished for their
failing to bring relevant and material evidence on record at an
earlier stage of the proceedings. That in re Vijay Kumar vs. State
of Uttar Pradesh, the Hon’ble Supreme Court of India explained
the scope and ambit of section 311 CrPC, and was pleased to hold
that, “though Section 311 confers vast discretion upon the court
and is expressed in the widest possible terms, the discretionary
power under the said section can be invoked only for the ends of
justice. Discretionary power should be exercised consistently with
the provisions of CrPC and the principles of criminal law.”
Moreover, the Hon’ble Supreme Court of India in State
represented by the Deputy Superintendent of Police vs. Tr. N.
Seenivasagan, has observed that delay alone should not be the sole
ground for rejection of application under section 311 CrPC if the
evidence is essential for just decision of the case.
8. That if the present application is allowed then it would cause no
prejudice to the other party, however if the opportunity to recall
and lead evidence is not allowed then it would cause serious
prejudiced to the case of the present applicant.
9. That the non – compliance of the previous orders and the non –
appearance of the counsel before this Ld. Court happened in
peculiar circumstances and owning to unavoidable circumstances.
In view of the same it is humbly requested that the cost imposed
on the complainant may be removed and the witness may be
recalled for cross – examination in the interest of justice and
following the principles of fair trial.
10. That the complainant undertakes to fully cooperate with the trial
proceedings henceforth and shall not seek any unnecessary
adjournments.
PRAYER
In view of the facts and circumstances stated above, it is most
respectfully prayed that this Ld. Court may graciously be pleased to;
a. Recall the Witness, i.e., the Complainant in the
aforementioned matter and allow the opportunity to lead
evidence
b. Waive the cost of Rs. 3,000/- previously imposed on the
complainant
c. Pass any other or further orders as this Ld. Court deems fit and
proper in the interest of justice.
DELHI
DATED: 13.10.2025
Complainant
Through
ASHESH LAL | HEEMANSHU SINGH
FOR ACCESS LEGAL GROUP | Counsels for the Applicant
A22, Defence Colony, Delhi – 110 024
Mob: 9999905857 Email:
[email protected] IN THE MR. TANMAY BATHAM, LD. JUDICIAL MAGISTRATE
FIRST CLASS (NI ACT) - 03, WEST DISTRICT, TIS HAZARI
COURTS, NEW DELHI
MISC. APPLICATION No. 2025
in
Ct. Case No. 373 of 2021
IN THE MATTER OF:
Nidhi Arora …Complainant
Ve r s u s
Vishal Malhotra ...Accused
AFFIDAVIT
I, Nidhi Arora W/o Late Amit Arora, aged about 48 years, R/o Subhash
C – 802, Sector 9A Gurgaon, present at Delhi, do hereby solemnly affirm
and declare as under:
1. That I am the complainant in the aforementioned complaint case
and am well conversant with the facts and circumstances of the
case and hence competent to swear this affidavit.
2. That the contents of the accompanying criminal misc. application
has been drafted by my counsel under my instructions which has
read and understood by me. The same are true and correct to my
knowledge and belief.
DEPONENT
VERIFICATION:
Verified at Delhi on this day of October, 2025 that the contents
of the above mentioned affidavit are true and correct to the best of my
knowledge and belief and no part of it is false and nothing material
has been concealed therefrom.
DEPONENT
