Rajasthan High Court – Jaipur
Anand Singh Son Of Dayal Singh vs Union Of India on 20 July, 2026
[2026:RJ-JP:27805]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 4405/2025
URN: CRLMP / 10124U / 2025
Anand Singh Son Of Dayal Singh, Aged About 41 Years, Resident
Of 126, Mitra Nagar, Khirni Pathak, Jhotwara, Jaipur (Rajasthan).
(At Present In Judicial Custody In Central Jail, Jaipur).
----Petitioner/Accused
Versus
Union Of India, (Directorate Of Revenue Intelligence), Regional
Unit, Jaipur Through Special Public Prosecutor.
—-Respondent
For Petitioner(s) : Mr.Ashvin Garg with
Mr.Anutosh Mishra
For Respondent(s) : Mr.Jitendra Singh Poonia, SPP
Mr.Manevendra Singh Shekhawat, PP
JUSTICE ANOOP KUMAR DHAND
Order
20/07/2026
Reportable
1. By way of filing the instant criminal misc. petition, a
challenge has been led to the impugned order dated 03.06.2025,
passed by the Special Judge, NDPS Cases, Jaipur Metropolitan-I,
rejecting the application submitted by the petitioner, seeking
directions to the Superintendent, Central Jail, Jaipur to allow the
petitioner to execute a General Power of Attorney in favour of his
brother Dilip Singh and also get the said General Power of
Attorney attested and registered within the jail premises.
2. Learned counsel for the petitioner submits that since the
petitioner has been arrested in a criminal case and he is facing
trial in Sessions Case No.54/2020 before the Court of the Special
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Judge, NDPS Cases, Jaipur, Metropolitan-I he is not in a position to
execute the General Power of Attorney in favour of his brother
Dilip Singh, unless the same is registered by the jurisdictional
Sub-Registrar, Jaipur and attested by the Superintendent, Central
Jail, Jaipur in the jail premises itself. Counsel submits that the
financial condition of the family of the petitioner is critical, hence,
certain part of a jointly owned property, as described in the
aforesaid General Power of Attorney, is required to be sold.
However, the Court below has declined to issue the direction, as
sought for in the petitioner’s application, on a hypothetical &
imaginary ground that there is a possibility that the petitioner
might have purchased the property mentioned in the General
Power of Attorney from the proceeds of crime.
3. Counsel further submits that neither any evidence was
collected by the Investigating Agency, at the time of submission of
charge-sheet nor any such evidence has been led during the
course of trial, to show that the said property has been purchased
by the petitioner from the proceeds of crime. Hence, under these
circumstances, the impugned order passed by the Court below is
liable to be quashed and set-aside and the direction sought for, by
the petitioner, may be issued.
4. Per contra, learned counsel appearing on behalf of the
respondent opposed the prayer and submitted that the trial has
reached its fag end and there are chances that the petitioner
might have purchased the property, as mentioned in the General
Power of Attorney, from the proceeds of the crime, therefore, the
Court below has not committed any error in rejecting the
application submitted by the petitioner. Counsel further submits
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that under these circumstances, interference of this Court is not
warranted and the instant petition is liable to be rejected.
5. Heard and considered the submissions made at the Bar and
perused the material available on record.
6. Considering the argument put forward by learned counsel for
the petitioner and perusing the record, it appears that the
petitioner is the co-owner of the property, as mentioned in the
General Power of Attorney and looking to the fact that the
petitioner is a pre-convict prisoner, lodged in the Central Jail,
Jaipur in connection with the Sessions Case No.54/2020, he is not
in a position to execute the General Power of Attorney in favour of
his brother Dilip Singh, with respect to jointly owned property, as
mentioned in the General Power of Attorney and therefore, he is
not in a position to sell the same to satisfy the needs of his family
members, who are suffering from financial crisis.
7. No proof has been produced on the record by the
respondents to show that the aforesaid property, as mentioned in
the General Power of Attorney, has been purchased by the
petitioner from the proceeds of crime. Unless and until such
evidence is made available on record of the Trial Court, it cannot
be presumed simply on the basis of one’s imagination that the
aforesaid property has been purchased by the petitioner from the
proceeds of crime.
8. 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
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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.
9. It is settled principle of law that mere incarceration does not
result in “civil death” of a person. Under Article 21 and Article
300A of the Constitution of India, an under trial or pre-convict
prisoner continues to enjoy the fundamental right to hold, own,
and dispose of property. The Hon’ble Supreme Court in the cases
of State of Maharashtra vs. Prabhakar Pandurang Nagarkar
reported in AIR 1966 SC 424; and Sunil Batra vs. Delhi
Administration reported in (1978) 4 SCC 494 has categorically
held that a prisoner retains all civil rights which are not
inconsistent with the fact of imprisonment. Thus, the capacity to
contract and transfer the property under Sections 5 and 7 of the
Transfer of Property Act, 1882 and Section 1A of the Powers of
Attorney Act, 1882 remains intact.
10. 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.
11. The Section 38 of the Act of 1908 is reproduced as under:-
“38. Persons exempt from appearance at
registration-office.
(1)(a) A person who by reason of bodily infirmity is
unable without risk or serious inconvenience to
appear at the registration-office, or
(b) a person in jail under civil or criminal process,
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(c) person exempt by law from personal
appearance in Court, and who would but for the
provisions next hereinafter contained be required
to appear in person at the registration-office, shall
not be required so to appear.
(2) In the case of every such person the registering
officer shall either himself go to the house of such
person, or to the jail in which he is confined, and
examine him or issue a commission for his
examination.”
According to the aforesaid provision, a person who, by
reason of bodily infirmity, is unable to appear at the registration-
office without risk or serious inconvenience sor a person confined
in jail under civil or criminal process, shall not be required to
appear, i.e., the appearance, referred in Section 36 & 37 of the Act
of 1908 for the purposes of registration.
12. As per Rule 202 of the Rajasthan Prison Rules, 2022 (for
short, “the Rules of 2022) and corresponding rules in other states,
the Power of Attorney is executed by the prisoner before the Jail
Superintendent/Magistrate, who attests the same after verifying
identity through jail records, Aadhaar and witnesses. Rule 202 of
the Rules of 2022 deals with the facilities for the under trial
prisoner and Rule 526 of the Rules of 2022 deals with the
provisions for convicted prisoners to sign power of attorney in jail.
Both the provisions are reproduced hereunder for ready
Reference:-
“202. Facilities for the under-trial prisoners.- The
following facilities shall be extended to all under trial
prisoners, namely:-
(a) legal aid;
(b) interviews with lawyers or family members
(for legal purposes);
(c) Signing Vakalatnama and bail bond;
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(d) delegation of power of attorney;
(e) execution of will;
(f) Essential religious necessities as per rules;
(g) applications to courts for legal aid as per
provisions of law;
(h) other applications to courts; and
(i) such other facilities as are sanctioned by the
Government from time to time must be extended
to the under-trial prisoners.”
*** *** *** ***
“526. Prisoners allowed to sign a power of
attorney.- Every convicted prisoner may, at the
discretion of the Superintendent, be permitted to sign and
attest a power of attorney or other statements or
conveyances concerning his or her properties and each
such transaction shall be treated as an interview.”
Hence, it is clear that even the Rules of 2022 also provide for
execution of power of attorney by the under trials as well as
convicted prisoners in jail.
13. Even the Allahabad High Court, Lucknow Bench, in the case
of Shyam Nayan Tiwari Vs. State of U.P. through Princ.
Secy. Home Vidhan Sabha Marg Lko. & Ors. while deciding
Criminal Misc. Writ Petition No.1959/2024 on 21.03.2024,
has held that a Power of Attorney, so attested in jail, is valid and
the Registrar cannot refuse registration solely on the ground that
the executant is a prisoner. The relevant para of the judgment is
reproduced as under:-
“As recorded in the above quoted judgment, Jail
Manual, 2022 is in operation. In view of the aforesaid,
we direct the Jail Superintendent, District Jail, Lucknow
to facilitate execution of the saledeed by the petitioner
if he is the owner of the land in question as per Para
654 of U.P. Jail Manual, 2022 and thereafter, the
Superintendent of Jail, District Jail, Lucknow on behalf
of the petitioner shall inform the Registrar/ Sub-
Registrar for appropriate steps under Section 38 of the(Uploaded on 23/07/2026 at 03:36:03 PM)
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[2026:RJ-JP:27805] (7 of 11) [CRLMP-4405/2025]Registration Act, 1908 for registration of the said sale
deed whereupon the said officer i.e. Registrar/ Sub-
Registrar would act in accordance with Section 38 of
the Act, 1908 and shall visit the jail where the
petitioner is lodged and take appropriate steps for
registration of the said sale deed. Let the exercise of
execution and signing of sale deed be completed within
fifteen days of receipt of certified copy of this order if
the occasion so arises and thereafter for the purposes
of registration of said documents, the Sub-Registrar
concerned having jurisdiction over the matter would
visit the District Jail, Lucknow where the petitioner is
lodged within the next fifteen days so that the sale
deed is registered in terms of the aforesaid provision
and as per Rules, unless there is any legal impediment
in this regard, in which case, he shall inform the Jail
Superintendent in writing who in turn shall inform the
petitioner.”
14. Similarly, in the case of Soma Saha Sen Vs. State of West
Bengal & Ors. reported in 2017 SCC OnLine Cal 3747, the
Calcutta High Court has observed and held in Para Nos.9 to 12 as
under:-
“9. In the instant case, the husband of the
petitioner is seeking to transfer flats in a
multistoried building which was under his
management as a developer of the said property
and, therefore, I am of the opinion that there is
no embargo upon the petitioner’s husband (who is
an under-trial prisoner) to execute sale deeds for
transfer of such flats to the intending purchasers
on account of his incarceration if he is otherwise
entitled to do so in law. It may also be apposite to
refer to Section 79(2)(j) of the West Bengal
Correctional Services Act, 1992, as argued by Ms.
Sengupta, which, inter alia, provides that a
prisoner is entitled to enjoy his fundamental
rights enshrined in Chapter III of the Constitution
of India until and unless the said rights cannot be
enjoyed due to such incarceration. Right to carry
on trade and profession including right to convey
property in course of such business is an essential
fundamental right enshrined under Article 19(i)(g)
of the Constitution of India and the same do not(Uploaded on 23/07/2026 at 03:36:03 PM)
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[2026:RJ-JP:27805] (8 of 11) [CRLMP-4405/2025]stand eclipsed by the continuing incarceration of a
prisoner. Hence, I am of the opinion that
incarceration of the husband of the petitioner
shall not disentitle him from executing sale deeds
to convey flats in favour of intending purchasers
in accordance with law.
10. With regard to the registration of the said
instruments it may be pertinent to note that the
sale deeds must be presented by the person or
his representative or assign in terms of Section 28
of the Registration Act, 1908 at the office of the
appropriate registering authority. However, the
registering officer may on special cause being
shown attend the residence of any person desiring
to present a document or to deposit a will for
registration and accept such document or will for
the purpose of registration. When a prisoner is
incarcerated in a correctional home, it is to be
deemed that the prisoner is temporarily residing
in the said correctional home. In view of such fact
the residence of the prisoner for the purpose of
the proviso to the aforesaid Section shall be
construed to be in the precincts of the
correctional home. Hence, if the registering
authority is approached on behalf of the prisoner
for registering a document which he is otherwise
entitled to execute, it shall ordinarily be the duty
of the said authority to hold a commission inside
the precincts of the correctional home for
effecting presentation of the instrument for
registration in terms of Section 32 of the said Act.
11. It may be pertinent to mention that the
practice of holding of commission in the
correctional home is not alien to the West Bengal
Correctional Services Act, 1992. In fact, Section
78 of the said Act permits commission for
examining prisoners as witnesses inside the
correctional home when the prisoner cannot be
brought to the Court for such purpose or is
incarcerating in a jail outside the State of West
Bengal.
12. In view of the aforesaid discussion, I direct
that the prisoner, that is the husband of the
petitioner, or his representative shall be at liberty
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[2026:RJ-JP:27805] (9 of 11) [CRLMP-4405/2025]Correctional Services, West Bengal namely, the
respondent no. 3 herein for execution of the sale
deeds in favour of the intending purchasers in
terms of Paragraph 654D of the West Bengal Jail
Code and also before the appropriate registering
authority for presentation and/or acceptance of
such instrument for registration by way of holding
commission on a date which may be fixed by the
said registering authority in consultation with the
respondent no. 3 herein within the precincts of
the correctional home where the prisoner is
presently housed in terms of proviso to Section 31
of the Registration Act, 1908. In the event any
application, as aforesaid, is made before the
appropriate authorities they shall consider the
same in the light of the directions given in this
order and take necessary steps as promptly as
possible but not later than 30 days from the date
of making of such application and in accordance
with law.”
15. Once the Special or General Power of Attorney is duly
attested in jail and subsequently registered, the constituted
attorney acquires the legal authority to execute the sale deed on
behalf of the prisoner-principal. The sale deed must expressly
recite that it is being executed “for and on behalf of [Name of
Prisoner] through his Power of Attorney Holder under Registered
GPA dated…”. The attorney can receive consideration, present the
document for registration and complete all consequential acts. The
transaction remains valid provided the Power of Attorney
specifically authorizes the sale of the scheduled property and the
attorney acts within the scope of authority conferred.
16. The right is, however, subject to statutory restrictions. If the
property is “case property” or has been attached by a court under
Section 102/83 CrPC, or by authorities under PMLA, NDPS or other
special statutes, prior permission of the competent Court/Tribunal
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is mandatory before transfer. Similarly, while an undertrial faces
no bar, a convicted prisoner may be subject to additional
restrictions under State prison manuals. To prevent fraud and
coercion, Registrars often insist upon video recording of execution
in jail and a medical certificate regarding soundness of mind of the
prisoner.
17. In view of the above constitutional provisions, statutory
framework and judicial pronouncements, 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.
18. 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.
19. Accordingly, the instant criminal misc. petition stands
allowed. Stay application and all pending application(s), if any,
also stand disposed of.
20. Consequences to follow.
21. Before parting with this order, it is made clear that before
execution of any sale deed, the petitioner would submit an
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application before the Trial Court, seeking permission to sell the
same and the said application would be decided in accordance
with law.
(ANOOP KUMAR DHAND),J
Aayush Sharma/88
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