( 1 ) THIS Election Petition is filed by the Election Agent of 2nd respondent with the following prayers:-

(a) accept this petition for trial; (b) declare the election of the 1st respondent, the returned candidate, as void on the ground of having committed an electoral offence/corrupt practice under Section 123 (4) of the Act making false statement of facts concerning personal character of the 2nd respondent; (c) that the election of the 1st respondent be declared as void as there is fraudulent manipulation of votes polled by the returned candidate by non-compliance of the provisions of the Act and the Rules framed under the act within meaning of Sec. 100 (1 ) (d) of the Act; (d) order recount of the votes of all the candidates and declare the 2nd respondent as having been duly elected to fill the seat from 40-Harihar Assembly Constituency; (e) name the 1st respondent, his election agent and such other persons as are found guilty of committing corrupt practice in furtherance to prejudice the prospects of 2nd respondent's election and disqualify them from voting and contesting elections; (f) award cost of these proceedings; (g) and grant such other suitable reliefs as this Hon'ble court deems fit to grant, in the circumstances of the case, in the interest of justice and equity. "

( 2 ) THE relevant brief facts of the case are mentioned as under:-

1) The petitioner is a voter and Election Agent of 2nd respondent. Election to No. 40 Harihar Assembly Constituency of Karnataka State legislative Assembly was held on 20-4-2004 under the provisions of representation of Peoples Act (hereinafter referred to as 'the Act')and the Conduct of Election Rules, 1961 (hereinafter referred to as 'the Rules' ). In the said election, the 2nd respondent H. Shivappa contested as a candidate of Janata Dal (S) Political Party. The petitioner herein was appointed by him as his Election Agent under rule 12 (1) of the Rules. In the said election in all there were 8 contestants from different political parties. Among them, the first respondent Dr Y. Nagappa was from Indian National Congress party. The 3rd respondent contested from Bharathiya Janatha Party. Respondents 4 to 8 contested from other political parties and some of them were Independent candidates.

ii) Voting right was exercised by the Electorate in Electronic machines. Counting of Ballot took place on 13-5-2004 between 8-00 am to 12-00 noon at Davanagere Town. The counting of Ballots was conducted by 9th respondent Returning Officer assisted by 10th respondent Asst. Returning Officer. At about 4-30 p. m the results have been announced in the prescribed form and the first respondent was declared elected. The margin of votes between respondents 1 and 2 was 569.

iii) The case of the petitioner is that, after declaration of the results, he filed an application as per Ex. P-4 for recounting of votes, hi that application he pointed-out that in Polling Station No. 106 there were only 54 women voters but in the counting list it is mentioned that 61 woman have exercised franchise; that in Polling Station 137 in all 843 voters exercised franchise but only 743 votes were counted; that in kumbalu Polling Station 139,688 voters exercised franchise but only 711 votes were counted; that in Polling Station 155, 782 voters exercised franchise but only 778 votes had been counted. Similarly, there are several discrepancies and errors occurred at the time of counting. In this regard, the 3rd respondent also submitted an application to the Returning Officer pointing-out certain discrepancies in the counting of votes and sought re-counting of the ballots on the ground that the total number of ballots from the polling stations does not tally with the total number of votes entered in Form 17-C. Part-I. It is alleged that the Returning Officer did not pass any order. Under Rule 63 of the Rules, after completion of counting ballots, the Returning officer shall record in the result sheet Form-20 the total