Arguments Of The Petitioner
Shri Lucky Jain, the petitioner’s counsel submitted that the residence and shop of the applicant are located in the same building, therefore, customers had collected in front of his shop to purchase the grocery which had lack of large supply.
He further contended that the applicant has now realised the importance of lockdown and social distancing, therefore, he has voluntarily agreed to deposit Rs.10000/- in the Prime Minister Welfare Fund to compensate for his mistake and is also ready to do the volunteer service for some time.
Finally, he stated that that the offence is triable by Judicial Magistrate of First Class and that the applicant is in custody since 9th April 2020 and he is no longer required for the investigation as he has also no criminal record, and not a repeat offender. He appealed to the court to grant bail as the applicant is required to take care of his two children and 65-year-old father as there is no other male member in the family.
Arguments Of The Respondent
The state’s advocate (Shri. Amol Shrivastava) had opposed the application for grant of bail, as doing voluntary service does not excuse his actions in any way.
Recently, the Jharkhand High Court held a similar decision in the case of Som Marandi vs. The State of Jharkhand on 16th April 2020. The court also imposed some conditions to grant bail as laid down below:
The petitioner shall show proof of payment of Rs. 35,000/- (Thirty-Five thousand) each in the ‘Prime Minister’s Citizens Assistance and Relief in Emergency Situations (PM CARES) Fund’ before the learned court below prior to their release.
The petitioner shall download the ‘Aarogya Setu App’ immediately after being released from custody and shall abide by the directions of the Central Government as well as State Government issued in connection with the containment of Covid-19 pandemic.
The petitioner has to submit a self-attested copy of their Aadhar Card and also give their mobile number before the learned court below which they will not change during the pendency of this case without prior permission of the court.
The bail was granted for the greater good of the public so that donations are used to treat COVID patients.
Observations Of The “PM CARES” Fund
In Modi’s third tweet in the thread about the PM CARES Fund, he provided a bank account number and other details for contributions. The link to the Press Information Bureau statement in the second tweet is withholding information about the new fund. One could broadly gather that PM-CARES is a public charitable trust. The prime minister is the chairman and members include the defence minister, home minister and finance minister. The government should be more forthcoming about the objectives and reasons for creating a public charitable trust to basically carry out a government function.
The trust deed of PM-CARES remains out of the public domain. In common law jurisdictions, it is considered unacceptable for charitable trusts to campaign for political or legal changes because charitable trusts are administered by trustees but there is no relationship between the trustee and beneficiaries.
The PM-CARES Fund can have up to 13 eminent experts, working pro bono, and can undertake relief or assistance of any kind relating to a public health emergency or any other emergency, including the creation and upgradation of healthcare facilities. The registered trust deed, dated March 27, of PM-CARES Fund, states that the prime minister as chairperson of the Trust will have the power to nominate three people to the board of trustees who shall be eminent persons in the field of research, health, science, social work, law, public administration and philanthropy.
The board of trustees also include the defence minister, home minister and finance minister in an ex-officio capacity. There is also a provision to set up an advisory board of not more than 10 persons — selected by the trustees from among the medical practitioners, healthcare professionals, academicians, economists and lawyers. The responsibility of the trustees in PM-CARES has been defined, unlike in the Prime Minister National Relief Fund (PMNRF).
The trustees of PM-CARES have a fiduciary duty towards the trust, the objects of which are charitable. But the same trustees also have a fiduciary duty towards the beneficiaries i.e. the populace – as their elected representatives. The PM CARES Fund tries to differentiate itself from PMNRF by enabling micro-donations.
The statement issued by the government specifically says that the fund will enable micro-donations as a result of which a large number of people will be able to contribute with the smallest of denominations. One can donate as low as Rs 10 in the PM CARES Fund, while the minimum one can donate in PM National Relief Fund is Rs 100, which is not very different in my opinion as the difference in impact is negligible. Therefore, we cannot dispute it is a publicly funded trust.
Justice Prakash Shrivastava felt that the application for grant of bail deserved to be allowed accordingly. The applicant was directed to be released on bail on his furnishing a personal bond in the sum of Rs.35,000/- (Rupees Thirty-Five Thousand) with one surety in the like amount to the satisfaction of the Trial Court for his appearance as and when directed.
There were a further condition that the applicant will donate Rs.10,000/- (Rupees Ten Thousand) in the Prime Minister Cares Fund as voluntarily offered by him and will also do service as a volunteer for a period of one week for at least three hours per day, as may be directed by the concerned Sub-Divisional Magistrate to whom he will inform this condition without any delay.
The court also stated that the applicant will attend each hearing of his trial before the Trial Court out of which this bail arises. Any default in attendance in Court would also result in cancellation of the bail granted by this Court.
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