ORDER The husband of the petitioner, namely, Ram Naresh Singh, Electrical Superintending Engineer, Electric Supply Circle, Patna was arrested on 14.11.2009 by vigilance team while accepting bribe from a consumer. Accordingly, Vigilance P.S.Case No. P.S.Case No.114 of 2009 dated 15.11.2009 was registered against him under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. 2. In course of investigation of the aforesaid case, the Vigilance detected assets which prima facie appeared to be disproportionate to the known sources of income of the petitioner’s husband. 3. Thus, on 16.09.2010, another case, being Vigilance P.S.Case No.65 of 2010, was registered under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 against Ram Naresh Singh. 4. The case was taken up for investigation. On conclusion of investigation, the police submitted chargesheet only against Ram Naresh Singh on 03.12.2010 under Section 13(2) read with 13(1)(e) of the P.C.Act. The petitioner is neither named in the F.I.R. nor she has been sent up as an accused in that case. The learned Special Judge, Vigilance-I, Patna has already taken cognizance of the offence and the case is pending for trial. However, it is pertinent to note here that the investigation of the case has been kept open on certain points. 5. The Principal Secretary, Vigilance Department, Bihar, Patna, thereafter issued a declaration in form no.1 under Section 5 of the Bihar Special Courts Act, 2009(for short ‘the Act‘) and Rule 7 of the Bihar Special Courts Rules, 2010 (for short ‘the Rules’) as contained in Annexure-1 to the writ petition. The said declaration reads as under:– “VIGILANCE DEPARTMENT BIHAR, PATNA FORM No.1 DECLARATION (Under Section 5 of the Bihar Special Courts Act 2009, and Rules 7 of Bihar Special Courts Rules 2010) “Whereas, it is alleged that Smt. Indu Singh, Asstt. Teacher, Middle School, Rupaspur, P.S.-Rupaspur, Distt. Patna (W/o Sri Ram Naresh Singh, the then Superintending Engineer, Electric Supply Circle, Patna), At present Address : “Induvilla”, Ram Jaipal road, In front of Gola Road, P.S.-Rupaspur, Distt.- Patna, while holding the post of the Asstt. Teacher, Middle School, Rupaspur, Patna and serving in different capacities under Bihar Government, committed the offence of criminal misconduct defined under clause (e) of sub-section (1) of Section 13 of the Prevention of Corruption Act, 1988 and that the matter is being investigated in Vigilance investigation Bureau Vide Vig. P.S.Case No.65/10 dated 16-09-2010. Teacher, Middle School, Rupaspur, Patna and serving in different capacities under Bihar Government, committed the offence of criminal misconduct defined under clause (e) of sub-section (1) of Section 13 of the Prevention of Corruption Act, 1988 and that the matter is being investigated in Vigilance investigation Bureau Vide Vig. P.S.Case No.65/10 dated 16-09-2010. AND WHEREAS, on scrutiny of relevant materials available on record, the State Government is of the opinion that there is prima facie case of Commission of above mentioned criminal misconduct by said the Asstt. Teacher, Middle School, Rupaspur, Patna, who has accumulated properties disproportionate to his known sources of income by resorting to corrupt means. AND WHEREAS, it is felt necessary and expedient by the Government that the said offender should be tried for confiscation of the properties mentioned in the application by the Special Court Established under sub-section(1) of Section 3 of Special Courts Act, 2009. NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 5 of Special Courts Act, 2009, the State Government do hereby declare that the said offence be dealt with under the provision of Special Courts Act, 2009. By the order of the Governor of Bihar Sd/- Principal Secretary to Government Vigilance Department, Bihar, Patna. Memo : Ni. Vi./Stha (Vi.Nya.)-01/12------------------/ Dated -------- Copy forwarded to the Superintendent, Government Press, Gulzar Bagh, Patna for Publication of this declaration in Bihar Gazette. Sd/- Principal Secretary to Government Vigilance Department, Bihar, Patna. Memo : Ni. Vi./Stha (Vi.Nya.)-01/12 255 / Dated 11.1.12 Copy forwarded to the Court of Learned Authorized Officer, Special Court No.-II, Patna created under Bihar Special Courts Act, 2009 (Act 5 of 2010) by Law Department Notification No.1961/J, Patna dated 26.04.2010 for information and necessary action. 2. Copy forwarded to Vigilance Special Court- I, Patna of Learned Special Judge under the Prevention of Corruption Act, 1988. 3. Copy forwarded to Additional Director General, Police Vigilance Investigation Bureau, Bihar, Patna for information and needful action in respect of Letter No. 635, dated 05.12.2011. 4. Copy forwarded to Smt. Indu Singh, Asstt. Teacher, Middle School, Rupaspur, P.S. – Rupaspur, Distt. – Patna (W/o Sri Ram Naresh Singh, the then Superintending Engineer, Electric Supply Circle, Patna), At Present Address : “Induvilla”, Ram Jaipal Road, In front of Gola Road, P.S.-Rupaspur, Distt.- Patna for information. 5. Copy forwarded to Vigilance Department, Bihar, Patna for information and necessary action. 6. Teacher, Middle School, Rupaspur, P.S. – Rupaspur, Distt. – Patna (W/o Sri Ram Naresh Singh, the then Superintending Engineer, Electric Supply Circle, Patna), At Present Address : “Induvilla”, Ram Jaipal Road, In front of Gola Road, P.S.-Rupaspur, Distt.- Patna for information. 5. Copy forwarded to Vigilance Department, Bihar, Patna for information and necessary action. 6. Copy forwarded to Law Secretary, Law Department, Bihar, Patna for information. 7. Copy forwarded to Principal Secretary, Education Department, Bihar, Patna for information and necessary action. One extra copy of declaration is being attached with this for service to the concerned Public Servant from your side. Sd/- 11/1/12 Principal Secretary to Government Vigilance Department, Bihar, Patna.” 6. The prayer of the petitioner in the present writ petition is to quash the aforesaid declaration as contained in memo no.255 dated 11.01.2012. 7. Learned counsel for the petitioner submits that the petitioner is not named in the F.I.R. of Vigilance P.S.Case No.65 of 2010 dated 16.09.2010. She has not even been chargesheeted after the investigation by the police in the said case. Her husband, Ram Naresh Singh, is the sole accused named in the FIR and he alone has been sent up for trial by the Vigilance in connection with the aforesaid case. 8. Learned counsel further submits that the impugned declaration as contained in Annexure-1 to the writ petition is bad for the reason that such declaration could have been made in respect to a person against whom there is prima-facie evidence of commission of an offence or who has held or is holding public office and is or has been public servant within the meaning of Section 2(c) of the Prevention of Corruption Act in the State of Bihar. 9. Learned counsel further submits that since the petitioner is not an accused in the case and as such the declaration made against her is patently bad in the eye of law. 10. On the other hand, Mr. Arbind Kumar, learned counsel appearing on behalf of the Vigilance submits that apparently there appears to be an error in making declaration against the petitioner. According to him, in the present case, the Vigilance should have filed an application under Section 13 of the Act for confiscation of the property in question before the authorized officer. Arbind Kumar, learned counsel appearing on behalf of the Vigilance submits that apparently there appears to be an error in making declaration against the petitioner. According to him, in the present case, the Vigilance should have filed an application under Section 13 of the Act for confiscation of the property in question before the authorized officer. Learned counsel for the Vigilance very fairly admits the factual position that the petitioner has not been made an accused in Vigilance P.S. Case No.65 of 2010 so far. 11. In the counter affidavit filed on behalf of the Vigilance a stand has been taken that the maximum properties have been acquired by the accused Ram Naresh Singh in the name of his wife and as such the petitioner is the direct beneficiary of the ill gotten money of her husband. It has further been stated in the counter affidavit that in terms of Section 14(2) of the Act a notice can be issued against the family members of the offender and as such the declaration made against the petitioner is neither illegal nor arbitrary. At this stage, I think it appropriate to extract paragraph nos.6 to 10 of the counter affidavit filed on behalf of the respondent which reads as under:– “6. That it is humbly stated that charge sheet vide no.95/2010 dated 3.12.2010 has been filed against Sri Ram Naresh Singh, son of late Shiv Lal Singh, Superintending Engineer Electrical-Electric Supply Circle, Patna before the Court, in context to the Vigilance P.S. CaseNo.65/2010 dated 16.9.2010 as instituted under section 13(2) read with section 13(1(e) of Prevention of Corruption Act, 1988 and the same case is under trial before the Court. 7. That on the basis of aforesaid charge sheet as submitted before the Court a proposal was made for the confiscation of the illegally generated assets of accused Ram Naresh Singh and his wife, Smt. Indu Singh against which the wife of accused, i.e., Indu Singh has filed the present petition in this Hon’ble Court on the ground that her name is not sent up for trial in the charge sheet hence confiscation proceeding ought not to be directed against her. 8. 8. That on perusal of the Annexure 3 of the writ petition under reply it is evident that maximum properties have been acquired on the name of Indu Singh and accused Ram Naresh Singh has been cent percent beneficiary of the income of his wife, Indu Singh, hence in such circumstances it can be said that the assets generated in the name of petitioner, Indu Singh is implicit in the assets of her husband, Ram Naresh Singh. 9. That it is further submitted that the provisions contained in section 14(2) of the Special Court Act, 2009 provides that in case of illegal acquisition of assets in corresponding proportion of other members of family the said members shall also be noticed. 10. That the declaration notice as issued upon the name of the wife of the accused in aforesaid circumstances in no way illegal or arbitrary.” 12. From the arguments advanced on behalf of the respondent and the averments made in the counter affidavit it is obvious that the declaration has not been made because there was prima facie evidence of commission of an offence alleged to have been committed by the petitioner as a public servant but because of the fact that her husband being public servant committed an offence under Section 13(1)(e) of the P.C. Act, 1988 and he accumulated assets disproportionate to his known sources of income in the name of the petitioner. 13. Section 5 of the Act, under which the declaration in question has been made, is given below for easy reference:– “5. Declaration of cases to be dealt with under this Act.–(1) If the State Government is of the opinion that there is prima-facie evidence of the commission of an offence alleged to have been committed by a person, who has held or is holding public office and is or has been public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988 in the State of Bihar, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion. (2) Such declaration shall not be called in question in any Court.” 14. (2) Such declaration shall not be called in question in any Court.” 14. Section 5(1) of the Act authorizes the State Government to make a declaration subject to fulfilment of two conditions which are as under:– (i) If the State Government is of the opinion that there is prima-facie evidence of commission of an offence alleged to have been committed by a person and (ii) The person has held or is holding public office and is or has been public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988 in the State of Bihar. 15. Admittedly, the petitioner has not been made accused in Vigilance P.S.Case No.65 of 2010 so far and as such it can not be said that there was any prima-facie evidence of commission of an offence against her and as such no declaration under Section 5 of the Act could have been made against her. 16. The chargesheet submitted by the Vigilance has been brought on record and marked as Annexure-3 to the writ petition. A perusal of the same makes it clear that the investigation has been kept open on certain points but the averments made in para 6 and 7 of the counter affidavit goes to show that a proposal was made for the confiscation of the illegally generated assets of accused Ram Naresh Singh and his wife, Smt. Indu Singh on the basis of the chargesheet no.95/2010 dated 03.12.2010. As noted above in the said chargesheet the petitioner has not been sent up for trial. Thus on the basis of such chargesheet, the State Government could not have held that the petitioner committed the offence of criminal misconduct defined under clause (e) of sub-section (1) of Section 13 of the Prevention of Corruption Act, 1988. 17. So far as the question relating to making application under Section 13 before the authorized officer or issuance of notice under Section 14(2) of the Act against the petitioner are concerned, I am of the view that the applicability of those provisions, is not an issue in the present case. 17. So far as the question relating to making application under Section 13 before the authorized officer or issuance of notice under Section 14(2) of the Act against the petitioner are concerned, I am of the view that the applicability of those provisions, is not an issue in the present case. Even if it is assumed that the Vigilance could have made an application before the authorized officer under Section 13 of the Act for confiscation of the properties mentioned in the application and the authorized officer upon receipt of an application under Section 13 of the Act could have noticed the petitioner under Section 14(2) of the Act, the same can justify the impugned declaration made under Section 5 of the Act and Rule 7 of the Rules. 18. Thus, I find that the declaration in question as contained in Annexure-1 to the writ petition is not sustainable in the eye of law. 19. I, therefore, deem it just and legally appropriate to set aside the declaration in question. Accordingly, the impugned declaration as contained in Annexure-1 to the writ petition is quashed. The writ petition stands allowed.