‘Civil death’ doesn’t apply to prisoners: Rajasthan High Court permits jailed NDPS accused to execute GPA

Jaipur: The Rajasthan High Court has held that mere incarceration does not result in the “civil death” of an accused, quashing a trial court order that had refused to let an undertrial prisoner facing NDPS charges execute a General Power of Attorney in favour of his brother from inside Jaipur Central Jail.

Justice Anoop Kumar Dhand held that a person against whom a criminal case is registered retains the fundamental right to take care of his property or alienate it by sale, and cannot be deprived of that right merely because he is a suspect lodged in jail.

The Court observed:

“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 petitioner, Anand Singh, is facing trial in Sessions Case No.54/2020 before the Special Judge, NDPS Cases, Jaipur Metropolitan-I. He had moved an application before the trial court seeking a direction to the Superintendent, Central Jail, Jaipur, to allow him to execute a General Power of Attorney (GPA) in favour of his brother, Dilip Singh, and to get the GPA attested and registered within the jail premises.

The trial court had rejected the application on Jun 3, 2025, holding that there was a possibility that the petitioner might have purchased the jointly-owned property mentioned in the GPA from the proceeds of crime.

Counsel for the petitioner, Ashvin Garg, along with Anutosh Mishra, submitted that the petitioner’s family was facing a financial crisis and needed to sell part of the jointly-owned property, but that the petitioner could not execute the GPA unless it was registered by the jurisdictional Sub-Registrar and attested by the Jail Superintendent within the jail premises. It was argued that neither the chargesheet nor any evidence led during trial showed that the property had been purchased from the proceeds of crime, and that the trial court’s apprehension was purely hypothetical and imaginary.

Appearing for the Union of India through the Directorate of Revenue Intelligence, the Special Public Prosecutor opposed the plea, contending that the trial had reached its fag end and that there remained a possibility that the property may have been purchased from the proceeds of crime, and that the trial court had not erred in declining the direction.

The Court noted that no proof had been produced by the respondents to show that the property was purchased from the proceeds of crime, and that this could not be presumed merely on the basis of imagination. It observed:

“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.”

The Court made reference to the Supreme Court’s decisions in State of Maharashtra v. Prabhakar Pandurang Nagarkar (AIR 1966 SC 424) and Sunil Batra v. Delhi Administration ((1978) 4 SCC 494), holding that a prisoner retains all civil rights which are not inconsistent with the fact of imprisonment, and that the capacity to contract and transfer 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.

Justice Dhand pointed out that under Section 38(1)(b) of the Registration Act, 1908, the registering authority may depute an officer to the place of confinement for registration of the document, and that Rules 202 and 526 of the Rajasthan Prison Rules, 2022 similarly provide for execution of a power of attorney by under-trial as well as convicted prisoners before the Jail Superintendent or Magistrate.

The Court also referred to the Allahabad High Court’s Lucknow Bench decision in Shyam Nayan Tiwari v. State of U.P. (Criminal Misc. Writ Petition No.1959/2024, decided Mar 21, 2024), which had directed the Jail Superintendent to facilitate execution of a sale deed by a prisoner, and to the Calcutta High Court’s ruling in Soma Saha Sen v. State of West Bengal (2017 SCC OnLine Cal 3747), which held that incarceration does not disentitle a prisoner from executing sale deeds to convey property in accordance with law.

Laying down the procedure, the Court held that once a General or Special Power of Attorney is duly attested in jail and registered, the constituted attorney acquires the legal authority to execute the sale deed on behalf of the prisoner-principal, and that the sale deed must expressly recite that it is being executed “for and on behalf of” the prisoner through the Power of Attorney holder under the registered GPA. It clarified that this right remains subject to statutory restrictions — where the property is “case property” or has been attached under Section 102/83 CrPC or by authorities under the PMLA, NDPS Act or other special statutes, prior permission of the competent Court or Tribunal is mandatory before any transfer.

Allowing the petition, the Court quashed and set aside the trial court’s order and directed the Superintendent, Central Jail, Jaipur, to attest the General Power of Attorney executed by the petitioner in favour of his brother, Dilip Singh, forthwith, and to get it registered at the earliest without delay. It clarified that before executing any sale deed, the petitioner would have to submit a separate application before the trial court seeking permission to sell the property, to be decided in accordance with law.

Title: Anand Singh v. Union of India (Directorate of Revenue Intelligence)

Case No.: S.B. Criminal Miscellaneous (Petition) No. 4405/2025

Citation: [2026:RJ-JP:27805]

Counsel for petitioner: Ashvin Garg, Anutosh Mishra

Counsel for respondent: Jitendra Singh Poonia (SPP), Manevendra Singh Shekhawat (PP)