ANIMESH JAIN Vs. HOME SECRETARY U P LUCKNOW

JUDGEMENT

(1.) -This writ petition has been filed for seeking a direction to the Home Secretary of the State of Uttar Pradesh to transfer the investigation to the C.B. C.I.D. in Case Crime No. 92 of 2003 under Section 302, I.P.C. relating to police station Adarsh Mandi, Muzaffarnagar.

(2.) THE present writ petition has been filed on the ground that the petitioner does not expect a fair investigation by the police for the reasons that the Area is dominated by the Jats and they are pressurising the investigating agency to involve the petitioner. THErefore, the investigation may be transferred to the C.B. C.I.D.

(3.) WHILE considering the similar view in Chief Conservator of Forests, Government of A. P. v. Collector and others, (2003) 3 SCC 472, the Hon'ble Supreme Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. The Hon'ble Apex Court had drawn the analogy from Section 79 of the Code of Civil Procedure, 1908, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the Constitution nor under the Code of Civil Procedure, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person. The Court also considered the provisions of Article 300 of the Constitution which provide for legal proceedings by or against the Union of India or State and held that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be ; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued.