New Delhi: A Delhi court has dismissed a corruption complaint against an AAP MLA, saying though it had prima facie found that he had breached the cap for poll expenses during 2013 Assembly election, he cannot be charged under Prevention of Corruption Act as he was not a public servant at that time.
"I have gone through the complaint and the documents thoroughly from which, it prima facie appears that respondent 1 (Tripathi) incurred more election expense than prescribed limit. However, in my prima facie opinion the same was incurred when he was only a contesting candidate for the post of MLA and not a public servant," Special Judge Hemani Malhotra said.
The court's order came on a complaint filed against Akhilesh Pati Tripathi, MLA from Model Town in Delhi, for allegedly spending over the prescribed limit of Rs 14 lakh in the 2013 election campaign.
The judge further said, "The act/conduct of Tripathi by submitting accounts after he became an MLA to explain the expenditure incurred by him before he was elected as MLA is not an offence committed under the Prevention of Corruption (PC) Act as when the election expenses were incurred, he was not a public servant."
The court also said that the remedy/action against a candidate's misconduct lies under the Representation of the People Act, 1950 which may result in disqualification of an elected candidate.
The court also referred to a Supreme Court verdict in which it had said under the Election Rules if an account is found to be incorrect or untrue by Election Commission after enquiry, the Election Commission may disqualify the said person.
The complaint filed by activist and lawyer Vivek Garg had also sought FIR against some officials of Election Commission (ECI), Delhi Chief Electoral Office (CEO) here and some officials of Delhi government, for allegedly colluding with Tripathi to manipulate the account of expenditure incurred by him.
The court, while dismissing the plea, also noted that a sanction to prosecute the officials of ECI, CEO and Delhi government was missing and referred to a Supreme Court judgement saying the court cannot take notice of private complaint against a public servant without a sanction order.
"Court cannot lose sight of the fact that the complainant has also impleaded responsible officials of the Election Commission of India and of government of Delhi who are public servants, as proposed accused under PC Act," it said
Referring to an apex court judgement, the judge said, "It has been categorically held that Special Judge could not have taken notice of the private complaint against the public servant unless the same was accompanied by a sanction order."
The judge, however, agreed with the contention of the complainant that no sanction was needed to prosecute an MLA.
The complaint had alleged that the maximum expenditure limit for Delhi Assembly Election 2013 was Rs 14 lakh whereas the MLA understated the statement of expenditure by Rs 8.93 lakh.
"The alleged offence was committed to win the election by manipulating the records of election expenditure," it claimed adding that the public servants allegedly saved Tripathi by conniving with him and stating that the expense incurred by him in the campaign was within prescribed limit.
Garg claimed that he had approached Special Commissioner, Crime Branch for registration of FIR against Tripathi, but to no avail.
He also filed complaints against the respondents before various other forums, but no action was taken, his complaint had said.
The complaint had sought registration of FIR against Tripathi and some unnamed ECI, CEO and Delhi govt officials for offences under sections 477A (falsification of accounts), 420 (cheating), 409 (criminal breach of trust by public servant), 171H (illegal payment in connection with election), 171I (failure to keep election account) and 120B(criminal conspiracy) of the IPC and various provisions of Prevention of Corruption (PC) Act, 1988.
Updated Date: May 02, 2016 17:22 PM