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Prisoners Have A Fundamental Right to Trade, and Profession

In Soma Saha Sen -Vs- State of West Bengal & Ors., an imprisoned developer wanted to sell property to the willing buyers by executing a registered sale deed. Several prayers were made before the jail authority regarding the same but it did not yield any result. The prisoner’s wife then approached the Calcutta High Court.

On hearing the matter, Justice Joymalya Bagchi maintained – “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 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.”

The judge further interpreted prison as being the temporary home of the inmate- “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 31 of the said Act.”

Can a developer transfer immovable property by executing a registered sale deed while being in prison, was answered in the affirmative by the Calcutta High Court.

However, to register sale deed the person is expected to go to the Registrar’s office under whose jurisdiction the property is situated. But for the incarcerated, mobility is restricted. Thus the High Court ordered that in such cases the registration can be carried out inside the prison premises.

 Article referred:http://www.livelaw.in/prisoners-fundamental-right-trade-profession-rules-calcutta-hc/

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