The state government is constitutionally empowered to grant or withdraw consent for the investigation of offences by the central investigative agency within its territory. The power to grant consent under the relevant statute inherently includes the power to withdraw such consent.

J U D G M E N T

(06.10.2017)

Satish K. Agnihotri, CJ

Questioning the validity and constitutionality of provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as 5DSPE Act6), as being ultra vires and violative of Article 14 of the Constitution of India, the instant petition is filed. The petitioners have also sought quashment of the notification No. 70/HOME/2010 dated 21^st July 2010 (Annexure P-10) whereby and whereunder the general consent granted earlier was withdrawn prescribing that the prior consent in respect of public servants employed in connection with the affairs of the Government of Sikkim and persons employed in connection with the affairs of any authority subject to the control of the Government of Sikkim or any corporation, company or bank owned or controlled by the Government of Sikkim in offences referred thereto, is required for the investigation of any such offence by the Delhi Special Police Establishment (hereinafter referred to as 5DSPE6). The petitioners are stated to be the residents of Sikkim and some petitioners are people8s representative and Members of Legislative Assembly. During currency of the petition, the original petitioners 2, 3, 4 and 6 have sought withdrawal from the petition, which was accorded by the order dated 02^nd June 2017.

2. The relevant facts, as projected by the petitioners, are that after accession of the Kingdom of Sikkim as State of Sikkim to the republic of India in 1975, the State of Sikkim by notification dated 20^th October 1976 accorded general consent, as required under Section 6 of DSPE Act to DSPE for the investigation of offences punishable, as referred thereto, of the Indian Penal Code, 1860 (hereinafter referred to as 5IPC6) and also under the Prevention of Corruption Act, 1947. On 10^th July 1979 (Annexure P-2), some more offences were included under grant of consent to DSPE for investigation. Subsequently, on 24^th December 1983, 28^th June 1984, 10^th December 1984, more offences were brought under schedule of consent granted to DSPE. Subsequently, vide notification dated 07^th January 1987, the State Government withdrew the schedule of consents granted earlier under Section 6 of DSPE Act. This notification came to be challenged in Kazi Lhendup Dorji v. Central Bureau of Investigation in Writ Petition (C) No. 313 of 1993, (1994) Supp 2 SCC 116. It is averred that the Supreme Court quashed the notification dated 07^th January 1987.

3. Consequent thereupon, a notification dated 2^nd July 1994 was issued by the Government of Sikkim, wherein it was clarified that consent given by the State Government under Section 6 of DSPE Act for investigation of offences by DSPE stood revived with effect from 7^th January 1987, as per the schedule of consents given earlier in letters dated 20^th October 1976, 10^th July 1979, 24^th December 1983, 28^th June 1984 and 10^th December 1984. Offences under the Prevention of Corruption Act, 1988 were further added vide notification dated 2^nd July 1994.

4. It appears that the first petitioner along with others filed a writ petition by way of public interest litigation under Article 32 of the Constitution of India in the Supreme Court, being Kunga Nima Lepcha & others v. State of Sikkim & others (Writ Petition (Civil) No. 353 of 2006), seeking a direction to the Central Bureau of Investigation (CBI) against the founder President of the Sikkim Democratic Front (SDF), who have been the Chief Minister of the Government of Sikkim since 12^th December 1994. The Supreme Court, while rejectin