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 underPrevention of CorruptionAct as he was not a public servant at that time.
"Ihavegonethroughthecomplaintandthedocuments thoroughlyfromwhich,itprimafacieappearsthatrespondent 1 (Tripathi) incurred more election expense than prescribed limit. However,inmyprimafacieopinionthesamewas incurredwhenhe was onlyacontestingcandidateforthe post ofMLA andnotapublicservant," Special Judge Hemani Malhotra said.
The judge further said, "Theact/conductofTripathi by submitting accounts after he became an MLA to explain the expenditure incurredbyhimbeforehewaselectedasMLA is notan offence committedunder thePrevention of Corruption (PC)Actaswhentheelection expenses wereincurred,he wasnotapublicservant."
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 ifanaccountis foundtobeincorrectoruntrueby ElectionCommissionafter 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.
"Courtcannotlosesightofthefactthatthe complainant has also impleaded responsibleofficialsofthe Election CommissionofIndiaandofgovernment of Delhi who are publicservants,asproposedaccusedunderPCAct," it said
Referring to an apex court judgement, the judge said, "Ithasbeencategoricallyheldthat SpecialJudgecouldnot havetakennoticeoftheprivatecomplaint againstthepublic servantunlessthesamewasaccompaniedbya sanctionorder."
The judge, however, agreed with the contention of the complainant that no sanction was needed to prosecute an MLA.