Undertrial Prisoner Can Sell Property Through Power Of Attorney Executed From Jail: Rajasthan High Court
The Rajasthan High Court has held that an undertrial prisoner does not forfeit the right to alienate his property and continues to enjoy his rights even in jail wherein he can validly execute a registered General or Special Power of Attorney and his attorney can legally sell the property. The bench of Justice Anoop Kumar Dhand observed,"the law is clear that a pre-convict/undertrial prisoner...
The Rajasthan High Court has held that an undertrial prisoner does not forfeit the right to alienate his property and continues to enjoy his rights even in jail wherein he can validly execute a registered General or Special Power of Attorney and his attorney can legally sell the property.
The bench of Justice Anoop Kumar Dhand observed,
"the law is clear that a pre-convict/undertrial prisoner does not forfeit the right to alienate his property. He can validly execute a registered General or Special Power of Attorney from jail, through the Jail Superintendent and his attorney can thereafter, legally sell the property. The only requirement is strict adherence to procedural safeguards of attestation, registration and absence of any court attachment".
A petition was filed by the petitioner challenging the order of the Special Judge which denied his application seeking directions to the Superintendent of the Central Jail to allow him to execute a General Power of Attorney in favour of his brother Dilip Singh. He also sought permission to get the General Power of Attorney attested and registered within jail premises.
The counsel for the petitioner argued that he was arrested in a criminal case and facing a criminal trial and therefore is not in a position to execute the General Power of Attorney in favour of his brother.
The counsel for the petitioner argued that his financial condition is critical and hence he needs to sell part of the jointly owned property. However, the special court declined to issue the direction on the presumption that the petitioner might have purchased the property from proceeds of crime.
The counsel for the petitioner argued that neither there was any evidence collected by the Investigating Agency during the submission of the chargesheet nor was any such evidence led during the course of trial.
The counsel for the respondent opposed the prayer, arguing that the trial has reached its end and there is a possibility that the said property might have been purchased from the proceeds of crime.
From the records, the court noted that the petitioner was the co-owner of the property. Further, he is a pre-convict prisoner lodged in the central jail.
The court noted that the respondents failed to show that the aforesaid property was purchased from the proceeds of crime. The bench emphasised that until and unless evidence is made available to show that the property was purchased from the proceeds of crime, the Trial Court cannot presume the same based on imagination.
The court noted,
"A person, against whom an FIR is lodged, has the fundamental right to take care of his property or alienate the same by way of sale, in case, necessity so arises. He cannot be deprived to do so simply because he is a suspect in a criminal case and is lodged in the jail. In case, the permission for execution of General Power of Attorney is not granted to the petitioner, it would tantamount to violation of his fundamental right, as guaranteed under Article 21 of the Constitution of India".
The bench reiterated the settled position that mere incarceration does not result in civil death of a person. Articles 21 and 300A of the Constitution grant the right to a prisoner to enjoy the fundamental right to hold, own and dispose of property.
The court noted that, "Since a prisoner is unable to physically attend the office of the Sub-Registrar, the law provides a mechanism for execution of documents within prison premises. Under Section 38(1)(b) of the Registration Act, 1908 (for short, "the Act of 1908"), the Registering Authority may depute an Officer to the place of confinement, for registration of the document".
Per Section 38 of the Registration Act, a person who is unable to appear at the Registration office shall be required to appear as referred to under Sections 36 and 37 of the Act. Per Rule 202 of the Rajasthan Prison Rules, 2022 and other corresponding rules, the court noted that the Power of attorney is executed by the prisoner before the Jail Superintendent/Magistrate, who attests the same after verifying the identity through jail records, Aadhaar, and Witnesses.
Rule 202 of the Rules of 2022 deals with the facilities for the undertrial prisoner, and Rule 526 of the Rules of 2022 deals with the provisions for convicted prisoners to sign a power of attorney in jail.
The bench further emphasized that once the Special or General Power of Attorney is duly attested in jail and subsequently registered, the constituted attorney acquires legal authority to execute a sale deed on behalf of the prisoner-principal.
Thus, the bench directed;
"Considering the overall facts and circumstances of the case, the order impugned passed by the Court below deserves to be and is hereby quashed and set-aside. The instant misc. petition stands allowed. A direction is issued to the Superintendent, Central Jail, Jaipur to attest the General Power of Attorney signed by the petitioner in favour of his brother Dilip Singh forthwith and also get the same registered at the earliest, without any further delay".
Case Title: Anand Singh v Union of India, S.B. Criminal Miscellaneous (Petition) No. 4405/2025
For Petitioner: Advocates Ashvin Garg and Anutosh Mishra
For Respondent: Special Public Prosecutor Jitendra Singh Poonia with Public Prosecutor Manevendra Singh Shekhawat