Prisoners too have fundamental Right to Trade and Profession: HC

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 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.

Full text of High Court Judgment is as follows :–

Order was dictated in open Court on 16^th March, 2017. However, due to some irregularities in the order, the matter was placed for further hearing today.

Petitioner has approached this Court seeking direction upon the respondent authorities to permit her husband, who is in incarceration, to execute and register sale deeds in favour of various intending purchasers.

Mr. Subhabrata Datta, learned advocate appearing for the State-respondents submits that there is no embargo to permit the husband of the petitioner to execute the sale deeds under the West Bengal Jail Code or the West Bengal Correctional Services Act, 1992. However, the registration of the documents requires to be done on commission. Ms. Arunima Lala Sengupta, learned advocate appearing for the petitioner submits that the proviso to Section 31 of the Registration Act, 1908 empowers the registering officer, in the event special cause is shown, to attend the residence of any person for the purpose of presentation of document for registration. It is further submitted that Section 79(2)(j) of the West Bengal Correctional Services Act, 1992 also does not put an embargo on the fundamental rights of a prisoner enshrined in Chapter III of the Constitution save and except when the said rights become incapable of enjoyment as an incident of confinement.

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