The Supreme Court on April 20 ordered the State of Gujarat to not take any coercive action against a Coimbatore resident accused in an illegal telephone exchange case registered in Ahmedabad after the man argued that he has to spend time with his wife as the couple are undergoing fertility treatment.
A Bench of Justices Krishna Murari and Ahsanuddin Amanullah passed the order on the basis of a pre-arrest bail plea filed by Shivakumar alias Senthil Kumar P., represented by advocates Sriram Parakkat, M.S. Vishnu Shankar, and Omar Saleem. The court issued notice to Gujarat which is returnable in four weeks.
The Gujarat High Court had “erroneously” denied him anticipatory bail in February, concluding that the offence was “serious” and he had played a vital role in its commission. The High Court had said that his custodial interrogation was required.
Producing two medical reports which were not part of the case records in the High Court, the man invoked his “right of progeny”.
He said he was happily married to his wife and they were undergoing fertility treatment.
“The report clearly indicates that there is a history of failure of natural conception and the petitioner is categorically advised to spend time with his partner for four-six months till pregnancy is achieved,” the petition said.
He sought to buttress his arguments with an earlier judgment by the Rajasthan High Court in a separate case. The High Court had in that case recognised the right of progeny as a “fundamental right”.
The case concerned a convict who was granted 15 days’ parole after his wife had approached the Rajasthan High Court invoking their “right of progeny”.
“The court had recognised the four Purusharthas as mentioned in the Upanishads as fundamental rights under Article 21 of the Constitution. In the present case, the petitioner is not to be denied the relief of anticipatory bail for this reason among other strong reasons,” the petition said.
Mr. Kumar also claimed there was no clarity in the prosecution case even as regards his name.
“The petitioner is not Shivakumar and has never been known as Shivakumar and he has been added as Shivakumar in the present FIR (First Information Report),” he said.
The petition said the Supreme Court had repeatedly held that “unless there is apprehension of tampering with evidence, anticipatory bail or pre-arrest bail can be granted”.
He said the complaint pertained to the “interception of certain incoming voice calls which were converted to local calls, causing loss to telecom companies and the Government of India”. He claimed that he was “wrongly portrayed as the mastermind of the entire event”.