The court determined that lack of video recording verification and procedural violations necessitate a recount to ensure election integrity.

JUDGMENT :

R DEVDAS, J.

This Election petition is filed under Section 81 of the Representation of People Act , 1950, read with Rule 4 of the Karnataka Election Petition Rules, where the petitioner has raised a challenge to the election of the first respondent as the winning candidate of Malur Assembly Constituency, Kolar District (Karnataka Assembly Constituency No.149), during the Elections held in May 2023.

2. The petitioner has sought the election of respondent No.1 to be declared as void under Section 100(1)(d)(i) to (iv) of Representation of People Act , 1951 (hereinafter referred to as, ‘the R.P.Act’, for short) and to declare the petitioner as the elected candidate. The petitioner has sought for recounting of votes and to declare the petitioner as having been elected on the basis of the votes secured by him or in the alternative, on the basis of the results of the recount, declare the petitioner as the elected candidate.

3. On the basis of the pleadings, this Court framed the following:

:: ISSUES ::

(1) Whether the petitioner proves that the Returning Officer has violated Rule 66-A of the Conduct of Election Rules , 1961 and procedure prescribed in the Hand Book for the Returning Officer while obtaining signatures on the Form No.17-C Part-II from the counting agents of the petitioner and whether there is manipulation and over writing in Form No.17-C which has materially affected the result of the election?

(2) Whether the petitioner proves that the order of rejection of the application for recounting was prepared and signed on 15.05.2023 and communicated on 17.05.2023, ante dated as 13.05.2023 in gross violation of Representation of the People Act, 1951 and Rules?

(3) Whether the petitioner proves that non- conducting of the mandatory VVPAT trial as per the procedure has materially affected the result of the election and thereby vitiating the entire process of counting?

(4) Whether the petitioner proves commission of corrupt practice of aiding and lending assistance to the Respondent No.1 by the Returning officer and other officials under Section 123(7) of the Representation of the People Act, 1951 materially affecting the outcome of the election result?

(5) Whether the petitioner proves there was wrong tabulation of votes by the returning officer which has materially affected the outcome of the election result?

(6) Whether the petitioner is entitled for relief of recounting of votes in respect of 149- Malur Assembly Constituency?

(7) Whether the petitioner is required to be declared as elected candidate of 149-Malur Assembly Constituency, while setting aside the election of respondent No.1?

(8) What order?

4. During the course of examination-in-chief and cross-examination, it was found that the video recordings of the election counting, barring the video recording of the VVPAT process, was not made available by the District Election Officer (hereinafter referred to as ‘DEO’ for short). Learned Senior Counsel appearing for the petitioner has raised this issue, regarding non-availability of the video recording of the counting process, as a mandatory requirement of law and has pressed for allowing the Election Petition on that ground alone, to issue directions for recounting.

5. In order to buttress his contention, that the non- availability of the videograph recordings of the counting process is sufficient to allow the Election Petition while directing recounting, the learned Senior Counsel submitted that the petitioner has raised pertinent issues as to whether the petitioner proves commission of corrupt practice of aiding and lending assistance to respondent No.1 by the Returning Officer and other officials, materially affecting the outcome of the election result; that the Returning Officer obtained signatures on Form No.17C Part II from the counting agents of the petitioner even before the counting; that signatures of the counting agents of the petitioner were not taken in Form No.17C Part II in many rounds; wrong tabulation of votes