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2015 (7) TMI 1416 - HC - Indian LawsRegistration of First Information Reports and investigation under the Prevention of Corruption Act, 1988 - Constitutional validity of Sections 2(v) and 2(c)(viii) of the Prevention of Corruption Act - HELD THAT:- Law making is a sovereign power and a State function. It denotes "power" vested with the State to regulate men under juridical laws. Wesley N. Hohfeld a renowned author of "Fundamental Legal Conceptions as Applied in Judicial Reasoning" classifies that jural correlative of 'power' is 'liability'. Thus, someone who holds the power can control, reduce and expand the entitlement of the men upon whom the power is imposed. The men bears 'liability' and exposed to exercise of such power. In a Constitutionally governed State, ordinarily, this power to make law, derives from the Constitution - The public duty thus, is a public function or a legal obligation discharged by a public servant under the command of public right. These public rights necessarily, presuppose existence of positive law of the State or valid Governmental directions. The "public right" or "legal obligation" cannot exist in vacuum, the "right" or "legal obligation" must be relatable to law or an authorised function by the Government. Thus, public duty discharged by a public servant is based on the positive law of the State or valid executive directions. The public duty under the PC Act refers to discharge of duty in relation to State, public or community at larger interest. Thus, a public servant must be under the positive command under the law to discharge such a duty. If a body or Corporation exercises a State function, without obligation under the existing laws, it is only an exercise of State function and cannot be treated as a discharge of public duty. The public duty in the context of criminal complaint would arise only when the construction of stadium is accomplished. The event complained, is only one step in the construction of stadium. Purchase of land cannot be considered as discharge of a public function. The functional approach in determining public duty; is to determine the action on account of the impact of public element and if it has control over the public at large. The complaint is not maintainable and the entire proceedings resulting from the impugned orders have to be quashed. Accordingly, the same are quashed and the writ petitions are allowed.
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