K. SREEDHAR RAO, J. ( 1 ) THE petitioner is the unsuccessful candidate at the 12th assembly elections to the Karnataka state Legislature from No. 72, Bethamangala (S. C.) Assembly Constituency. The respondents 1 to 7 are the other contesting respondents and respondent No. 3 is successfully declared as elected by margin of 547 votes ahead of the petitioner who had secured next higher number of votes. The polling and counting of votes for parliamentary and assembly constituencies held simultaneously. The petitioner after counting of votes, submitted a petition to the Returning officer objecting the result on the ground that the electronic voting machines sent for polling in parliamentary and assembly elections are wrongly swapped at the time of polling. The Returning officer after scrutiny, rejected the petition by order at Ex. P 29. ( 2 ) THE petitioner in the election petition contends that there is no swapping at the polling stage, but according to his information from the records and counting agents, the control unit Nos. 59864 and 58936 were allotted to the polling for the assembly elections for booth Nos. 2 and 5 respectively. The control unit Nos. 61398 and 60904 were allotted to the parliamentary elections for booths 2 and 5. But at the stage of counting, the control units of booths 2 and 5 of parliamentary elections have been wrongly counted for the assembly elections and vice-versa. It is further said that the defect at the time of counting could not be noticed because of co-incidence of the fact that for assembly and lok-sabha, there were eight contesting candidates. The serial number of the petitioner in the ballot paper is at No. 7. The candidate who contested for parliamentary elections at Sl No. 7 in the ballot paper, is not a very popular candidate and he could not have secured 279 votes at Booth No. 2 and 252 votes at Booth No. 5 in the parliamentary elections, the control units of booth Nos. 2 and 5 of parliamentary and assembly elections are to be summoned for adjudication. The votes polled by the candidates at Sl. No. 7 for lok Sabha elections at Booth Nos. 2 and 5 of parliamentary and assembly elections are to be summoned for adjudication. The votes polled by the candidates at Sl. No. 7 for lok Sabha elections at Booth Nos. 2 and 5 should be counted as the votes polled by the petitioner and thus contends that the total number of votes polled by him is higher than the third respondent and accordingly, be should be declared as duly elected candidate for 12th Vidhana sabha from No. 72, Belthamangala (S. C.) Assembly Constituency. ( 3 ) THE third respondent has filed objections denying the allegation that control Unit Nos. 61398 and 60904 of booth Nos. 2 and 5 of the parliamentary elections have been wrongly counted for the assembly elections. The theory of swapping of control units of Booth Nos. 2 and 5 at the time of counting is stoutly denied. It is further submitted that the control units are not only identified by their numbers, but there would be prominent visual identities like colour tags. The control units of assembly elections will have pink tags. The control units of parliamentary elections will have white tags. At the time of counting, it is impossible for the Counting Supervisors and to the counting Agents to miss the notice of colour tags which is a very strong distinguishable feature of control units of assembly and parliamentary elections. The Counting Agents did not raise any objection at the time of counting. The contention of swapping of control units is only a figment of imagination. ( 4 ) ON the disputed contentions, the following issues were refrained as follows: i) Whether the petitioner proves that the control units of parliamentary elections bearing Nos. 61398 and 60904 of Booth Nos. 2 and 5 have been wrongly counted for the assembly elections? ii) Whether the petitioner is entitled to reliefs as sought for in the petition? ( 5 ) THE petitioner has examined himself and 7 witnesses. The petitioner is examined as PW1. The gist of his evidence only shows that on the basis of documentary evidence produced by him and the version given by his Counting Agents - PWs 2 and 3, he believes that there is swapping of control units at the time of counting. However, PW 1 has not personally and particularly witnessed the first round of counting at table Nos. 2 and 5. However, PW 1 has not personally and particularly witnessed the first round of counting at table Nos. 2 and 5. PWs 2 and 3 (Counting Agents) support the case of the petitioner and they say that elections with the aid of voting machine was their maiden experience and at the first round of counting they did not keenly observe the colour tags attached to the carrying cases and the control units, but the Counting Supervisors gave identity numbers of the control units of booth Nos. 2 and 5 counted in the first round and they have noted down in Exs P22 and P 23. The contents of Exs P 22 and P 23 corroborates the version of the petitioner. ( 6 ) THE Countering Supervisors - PWs 5 and 7 for table 2 and 5 of assembly elections, swear to the fact that after properly verifying the visual identities like the colour tags, they have properly counted the control units pertaining the assembly elections and there is no swapping and further say that the Counting Agents also did not raise any objection. P. Ws 6 and 8 are the Counting supervisors for parliamentary elections. Their evidence is in similar tenor with that of PWs 5 and ( 7 ) THE evidence of Counting Supervisors further discloses that they were given instructions by the Returning Officer not to give any consideration to the entries made in the first part of Form 17-C since the entries made in first part of Form 17-C by the Presiding Officer and Polling officer would be full of mistakes. Therefore, they should not be guided by the entries made in part of Form 17-C and they have to verify the particulars of the control units carefully at the time of counting and make entries in Part II of Form 17-C without bothering whether such entries would tally with the entries in the first part. 7. PW 4 is the Returning Officer to the assembly elections of Bethamangala constituency. The witness is confronted with Ex. P4- Master Register, Ex. P 8 - Mustering Register, Ex. P 19 Counting supervisors' table register, Exs P 37 and P 38 - Mahazars under which the control units were taken out from strong room for production before the Court The contents of Exs P4 and P 8 show that the control units bearing Nos. P4- Master Register, Ex. P 8 - Mustering Register, Ex. P 19 Counting supervisors' table register, Exs P 37 and P 38 - Mahazars under which the control units were taken out from strong room for production before the Court The contents of Exs P4 and P 8 show that the control units bearing Nos. 59864 and 58936 were allotted to the polling for assembly elections, Ex P 19, Ex. P 37 and Ex. P 38 shows that the control units numbers 60904 and 61398 are counted in the assembly elections to record the number of votes polled by the candidates in booth Nos. 2 and 5 of the assembly constituency. PW 4 says that there is apparent discrepancy in the records and he is unable to explain how the mistake has crept in but says that only after verification of the control units in question, he could explain the reason for the discrepancy. ( 8 ) THE third respondent examined himself as R. W.. The gist of evidence disclose that there is no swapping of electronic units either at the polling or at the counting. The counting supervisors have properly counted the control units of the assembly elections, whatever the votes recorded in the result sheet pertains to table Nos. 2 and 5 is valid and correct R. Ws 2 and 3 are the counting agents of RW1 and they swear to the fact that the control units of assembly elections have been properly counted at table Nos. 2 and 5 pertaining to the assembly elections and there is no swapping. ( 9 ) IN a case of recount in an election conducted by a manual process of polling and counting, it is essential that every ballot paper has to be verified to find out the improper reception and rejection including the invalid votes. In an election conducted with the aid of electronic voting machines, the perception of improper rejection and reception of votes in manual voting system, will not arise and ballotwise counting does not arise. There is no scope for such a mistake to occur. But it is possible that wrong control unit could be counted, then the entire votes of such control units should he considered as improper reception and rejection. The term "recount" in manual ballot system may not be mot juste in the case of voting machines. There is no scope for such a mistake to occur. But it is possible that wrong control unit could be counted, then the entire votes of such control units should he considered as improper reception and rejection. The term "recount" in manual ballot system may not be mot juste in the case of voting machines. When an objection of wrong count of control units is alleged, it requires only "re-verification" of the control units and the votes recorded therein. The question of recount as in the case of manual ballot system does not arise. Therefore, the legislature in its wisdom, has made adequate provisions by amendment to Rule 66-A of Conduct of Election Rules making the provisions of manual recount applicable to voting machines as far as possible. ( 10 ) THE Supreme Court in the case of Bhabi v. Shree Govind and Ors. AIR1975 SC 2117 , (1976 )1 SCC687 , [1975 ]suppscr202 has laid down the following guidelines for the Courts to follow white considering the case for recount; (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations. (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts. (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. ( 11 ) THE arguments of Senior Counsel - Sri Ashok Haranahalli is that the standard of proof required in an election petition is like a quasi criminal proceedings. ( 11 ) THE arguments of Senior Counsel - Sri Ashok Haranahalli is that the standard of proof required in an election petition is like a quasi criminal proceedings. The test of preponderance of probabilities applicable in civil cases, does not apply in an election petition. In this regard, he relied upon a ruling of Supreme Court in the case of Harikrishna Lal v. Babu Lal Marandi 2004 (2 )ALT53 (SC ), 2003 (3 )BLJR2337 , [2004 (1 )JCR192 (SC )], jt2003 (8 )SC 460 , (2004 )1 MLJ119 (SC ), 2003 (9 )SCALE74 , (2003 )8 SCC613. The ratio laid down has no application to the facts. In case of allegation of corrupt practice, the higher standard of proof is insisted to prove the allegation of corrupt practice. But in case of recount, the test laid down by the Supreme Court in the case of Bhabi v. Shree Govind and Ors. AIR 1978 SC 2117 declares that the petitioner has to prima facie establish the truth of the allegations made for recount. ( 12 ) EX. P 4 - Master Register and Ex. P 8 - Mustering Register, Ex. P11- Presiding Officer's diary pertaining to booth No. 5 shows that the control unit No. 58936 was allotted to polling for assembly elections. The Counting Supervisors' register Ex. P 19, Mahazars Ex. P 37 and Ex. P 38 shows that the votes recorded in control unit No. 60904 is recorded as the votes polled by the petitioner for booth No. 5. Similarly Exs P4, 8 and 37 shows that the control unit 59864 is allotted to polling to booth No. 2 of assembly constituency. Ex. P 37 and Ex P 38 Mahazars show that the votes recorded in control unit No. 61398 is counted for booth No. 2 of assembly elections. Ex. P 6 - Master Register, Ex. P9 - Mustering Register, Presiding Officers' diary at Exs p12 and P 13 and the contents of Form 17-C at Exs P 17 and 16 relating to the Lok Sabha elections disclose that control Units Nos. 60904 and 61398 are allotted to polling for booth Nos. 5 and 2 of the parliamentary constituency. The Counting Supervisors' table registers at Exs P 21 and P 20 relating to booth Nos. 5 and 2 shows that the votes recorded in control unit Nos. 60904 and 61398 are allotted to polling for booth Nos. 5 and 2 of the parliamentary constituency. The Counting Supervisors' table registers at Exs P 21 and P 20 relating to booth Nos. 5 and 2 shows that the votes recorded in control unit Nos. 58936 and 59864 are counted as the votes polled for Lok Sabha elections. The discrepancy in the documents referred to above clearly discloses that control units sent for booth Nos. 2 and 5 for parliamentary elections, are counted for assembly elections. ( 13 ) IT is argued that the Counting Supervisors categorically swear to the fact that the control units with pink tags have been counted for the assembly elections and control units with white tags are counted for parliamentary elections and there is no swapping. The contention appears to be untenable. It is quite probable that the mistakes could occur by inadvertence. The official witnesses cannot be expected to admit the mistakes in evidence at the risk of facing disciplinary consequences. On overall considerations, the discrepancies pointed out by the petitioner does establish a prima facie rejection and reception of votes at the tune of counting. ( 14 ) THE admission on the part of the Counting Supervisors that they were instructed not to refer to first pail of Form 17-C since there would be likelihood of incorrect and wrong entries, therefore, they were directed to fill up the contents of second part of Form 17-C with reference to the control units given to them for counting. This admission is too generalised statement. There is nothing on record to show that the entries in the relevant registers and forms relating to the control units in question are by way of mistake. There is no material to show that entries in ex. P4 and Exs P 6 to P 9 relating to the control units in question are wrong entries. The entries are made in public document by a public servant in discharge of public duties. The presumption would initially arise that the officials acts are done correctly and faithfully. To rebut such presumption, there is no contra evidence. ( 15 ) IT is argued by Sri Ashok Haranahalli that there is no prayer in the petition for recount Hence the petition is to be rejected. The presumption would initially arise that the officials acts are done correctly and faithfully. To rebut such presumption, there is no contra evidence. ( 15 ) IT is argued by Sri Ashok Haranahalli that there is no prayer in the petition for recount Hence the petition is to be rejected. The counsel for the petitioner in rebuttal of the contention relied upon the ruling of the Supreme Court in the case of Ram Sewak Yadav v. Hussain. Kamil kidwal and Ors. reported in AIR1964 SC 1249 , [1964 ]6 SCR238. In the cited case, the petitioner sought the relief of declaration that the election of wining candidate is void and that the petitioner to be declared as duly elected. The Tribunal dismissed the petition. The High Court reversed the order and remanded the matter for trial with a direction that the tribunal should give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers. The Supreme Court set aside the order of the High Court and confirmed the order of the Tribunal. In paras 6 and 7 of the judgment the following observations are made: (6) An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under the Code of Civil Procedure when trying a suit. But the power which the Civil court may exercise in the trial of suits is confined to the narrow limits of Order 11 Code of Civil procedure. Inspection of documents under Order 11 Code of Civil Procedure may be ordered under Rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18 (2) of other documents in the possession or power of the other party. The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order 11 Code of civil Procedure. But the election tribunal is not on that account without authority in respect of the ballot papers. The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order 11 Code of civil Procedure. But the election tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in Sections 100 (1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from Order 11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128 (1 ). (7) An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies n support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. The power to permit inspection of ballot papers is held to be inherent in Section 100 (1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961 and such power has to be exercised only upon fulfillment of conditions laid down in para 7. The power to permit inspection of ballot papers is held to be inherent in Section 100 (1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961 and such power has to be exercised only upon fulfillment of conditions laid down in para 7. In the present case, the petitioner specifically pleaded a case of improper rejection and reception of votes at the time of counting with all necessary details. The petitioner has established by prima facie evidence that the control units sent for polling for assembly elections are not the one counted for recording of votes polled by the candidates contested for the assembly elections. The petitioner does make a specific request for summoning of the control units in question and by way of interlocutory application, has sought for verification of the votes recorded in the control units. In that view of the matter, the petitioner is entitled to relief of recount Hence I direct that the control units of booth Nos. 2 and 5 of parliamentary and assembly elections have to be verified. Registry to summon the Chief Electoral Officer in Karnataka, Bangalore in the open Court on 16. 9. 2006 for the purpose of verification of the control unite in question with technical experts.