1. Right to a Legal Representative, Statutory Fee;
In the case of D.B.M. Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092, the SC declared that the offenders’ basic constitutional rights are not completely violated by mere confinement of the offenders. Therefore, through the same rationale, prisoners must be granted the right to a legal representative and free legal aid according to Article 22, 39A of the Constitution of India.
Further in the case of R.D. Upadhyay v. State of A.P and Ors., AIR 2001 SC 437, the Court ordered that
“The right to fair treatment and right of judicial remedy are pre-requisites of administration of prison justice.”
The Supreme Court laid down crucial guidelines for the rights of the prisoners in the case of Hussain Ara Khatoon v. Home Secretary , State of Bihar, 1979 AIR SC 1369. The Apex Court directed that the under -trial prisoners whose name and particulars were filed by Mrs. Hingorani should be released. It had been because imprisonment like false imprisonment were considered to be an illegal and also violative of their Fundamental Rights enshrined under Article 21 of the Indian Constitution. The court also mandated that in the time of charging bailable offences, they need to be produced before the Magistrate on remand dates. The government ought to name a legal advisor at their own expenses for making an application for bail. a quick trial is much required for securing justice. The court also ordered both the government as well as High Court to display the particulars regarding the location of the courts of magistrate and court of sessions in the State of Bihar along with the cases pending in each court on 31st December, 1978. They were also asked to state the rationale of pendency of cases. On next remand dates the under- trial prisoners should be produced before the court in order that the state government must ought to designate a lawyer of its own expense.
2. Right to access Bank A/C, properties;
Under para 654D in the case of Soma Saha Sen Vs State of West Bengal, 2017, the Calcutta High Court declared as follows;
“Every prisoner whether convicted or under-trial shall be allowed to sign a power of attorney or other documents in connection with the case against him or the management of his property or family affairs and his signature shall be attested by the Jailor or Deputy Jailor unless such officer has reasons to suspect that the transaction is malafide, illegal or contrary to any order of a court of Law.”
Therefore, through execution of a valid Power of Attorney as per the Powers-of-Attorney Act, 1882, a prisoner is legally allowed to appoint a valid indivdual to carry out the business of his Bank A/C or Properties.
Further, in the case of R. Rajagopal v. State of T.N., (1994) 6 SCC 632, the Supreme Court declared that;
“If a prisoner has to execute a power of attorney in favour of another, it has to be done in the presence of the prison officials as required by the prison rules”
Thereby confirming that a prisoner is legally allowed to execute a power of attorney.
In a Nutshell, through an executory deed of power-of – attorney, an inmate can manage his/her bank accounts and properties.
Additionally, in the case of Rajni Tandon Vs Dual Ranjan Ghosh, 2009(3) Apex Court Judgments (SC) 182, the Supreme Court confirmed that;
“a person holding of power of attorney, which is not registered document, has an authority to the sell the property of the owner under the terms of power of attorney and to execute the necessary documents on behalf of the owner.”
The relationship between the donor and donee in a deed of power of attorney is that of a Principal and Agent as per the CHAPTER X of The Indian Contract Act, 1872. This was affirmed by the Supreme Court in the case of State of Rajasthan vs. Basant Nehata, 2005 (12) SCC 77. Further, the jury of this case also declared;
“the agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor.”
Applying the aforesaid rationale, according to the provisions of the Section 182, CHAPTER X of the Indian Contract Act, 1872, the agent is authorised to perform any action on behalf of the principal for which the principal has contracted with the Agent. This action includes business of properties as well as that of bank accounts.
