The Special Judge does not have the power to direct the CBI to investigate a case under Section 156(3) of the Code of Criminal Procedure.

P.S. TEJI, J

1. The present petition under Article 226 & 227 read with Section 482 of the Code of Criminal Procedure, has been filed by the petitioner for setting aside the order dated 29th April, 2016, passed by the learned Special Judge-05, Anti-Corruption, Tis Hazari, Delhi in case titled as Vivek Garg Vs. Akhilesh Pati Tripathi, MLA & Others. vide Complaint Case No.14/2015.

2. A thumbnail sketch of the facts of the case is that Mr. Akhilesh Pati Tripathi, (respondent no.1 before the Trial Court) contested 2013 & 2015 Delhi Legislative Assembly Elections from Aam Aadmi Party and became a Member of Legislative Assembly (MLA) from Model Town constituency Elections 2013 both times while the unnamed officials of Government of NCT of Delhi and Election Commission of India (respondent nos.2 & 3 before the Trial Court). It is alleged that Mr. Akhilesh Pati Tripathi became an MLA in collusion with the unnamed officials of Election Commission of India and the officials of the Chief Electoral Office, DC North Office of Government of NCT of Delhi, by undervaluing a number of items used in the election campaign and thereby manipulated the accounts of expenditure incurred in Delhi Legislative Assembly Election 2013. It is further alleged that the crime was finally completed in January, 2014 when he submitted the final forged & fabricated accounts of election expenditure when the respondent no.1submitted the forged/fabricated accounts of election expenditure.

3. Learned counsel for the petitioner has contended that Section 78 of the Representation of People Act, 1951 provides that every candidate has to furnish true account of his election expenses maintained under Section 77 of the Act with the District Election Officer within 30 days from the date of declaration of the result of election. It is stated that maximum expenditure limit for Delhi Legislative Assembly Elections, 2013 was Rs.14,00,000/-. It is further stated that Mr. Akhilesh Pati Tripathi was served with a notice on 9th January, 2014 by the concerned Returning Officer regarding the mal practice in the election expenditure and that in the said notice, two primary issues were raised, first on the procedural aspects of furnishing the accounts and the second on the manipulation of election expenditure. It is alleged that the inspection schedule notified by DEO (North) prescribing the dates on which the contesting candidates were to make available their day to day accounts in the prescribed manner, was not complied with by the respondent no.1. It is alleged that on the first date of inspection of election expenditure i.e. 23rd November, 2013, the expenditure register was produced for inspection but the same was not signed either by the candidate or by his election agent. It is contended that on the second date of inspection i.e. 28th November, 2013, the remarks of the expenditure observer are evident of mala fide intention. Learned counsel for the petitioner has alleged that on the second date of inspection i.e. 2nd December, 2013, the candidate failed to furnish the register for inspection as a result of which notice was issued by the Returning Officer pursuant whereto reply was filed by Mr. Akhilesh Pati Tripathi in which he did not submit that the accounts were maintained on day to day basis; the reason for not furnishing the expenditure register in the prescribed manner and the reason for not furnishing the register on day to day basis. The petitioner has further pointed out the anomalies like difference between the total expenditure shown by the respondent no.1 in the expenditure register and the abstract of the expenses shown by him; pages of the register not signed on the first date of inspection and the computerized account sheets being pasted one over the other.

4. The petitioner has further alleged the quantum of the election expenditure to the effect that in the notice dated 9th January, 2014, the accused has incurred expenditure of Rs.8,93,650/-over and above th