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In these proceedings, the present petitioner had filed an application (Exhibit No.90) praying that the electronic voting machine be called for verification and counting of votes. The learned trial Judge has rejected this application by the impugned order.

The lis is between the present petitioner and the present respondent No.1. The respondent Nos.2 to 7 are formal parties.

5. In these proceedings, the present petitioner filed the application (Exhibit No.90) contending that the present petitioner got 220 votes and the present respondent No.1 got 200 votes, however, the Returning Officer had earlier wrongly recorded that the present respondent No.1 and the present petitioner got 208 votes each. The 5 wp3702.16 present petitioner prayed that the electronic voting machines which are in the custody of District Administration be called and the votes polled in favour of the respective candidates be verified. The learned trial Judge has rejected this application by the impugned order.

6. Shri S.D. Chopde, learned Advocate for the petitioner has referred to the provisions of Section 15(2) and Section 15(5)(b) of the Act of 1958 and has submitted that the Judge dealing with the petition under Section 15 of the Act of 1958 is conferred with all the powers of Civil Court and the Judge has the power to scrutinize and compute the votes polled in favour of each candidate. It is submitted that the power to compute and scrutinise the votes polled in favour of candidates enables the Judge to call the electronic voting machines and verify the votes polled in favour of the candidates. To support the submission, the learned Advocate for the petitioner has relied on the judgment given by the Division Bench of this Court in the case of Digamber Pandurang Sawant vs. Ahmed Appa Khedekar reported in 1970 Mh.L.J. 456. It is argued that the learned trial Judge has not properly exercised his jurisdiction conferred by Section 15(5)(b) of the Act of 1958 and has rejected the application observing that the petitioner has not made any complaint of similar nature at the relevant stage, and 6 wp3702.16 that the evidence recorded shows that the procedure was properly followed at the time of conducting the election. The petitioner prayed that the impugned order be set aside, the application (Exhibit No.90) filed by the present petitioner in the proceedings before the learned trial Judge be allowed and the learned trial Judge be directed to call the electronic voting machine and verify the votes polled in favour of the petitioner and the respondent No.1.

"Whether the Judge trying the petition under Section 15 of the Act of 1958 has the power to call for the electronic voting machine and scrutinize and compute the votes polled in favour of the candidates ?"

The learned trial Judge has not adverted to this point and has rejected the application (Exhibit No.90) filed by the petitioner on the ground that the present petitioner had not complained during the course of the election procedure before the Returning Officer that the error was committed by the Returning Officer earlier and that there was confusion in the serial numbers of the candidates shown in the electronic voting machine because of which the votes polled in favour of Other Backward Class Woman Candidate were treated as votes polled in favour of the Scheduled Caste Woman Candidate and vice-