Adarsh society scam: HC discharges Kailash Gidwani, Jawahar Jagiasi

MUMBAI: The Bombay high court (HC) on Thursday discharged Kailash Gidwani and Jawahar Jagiasi from the Adarsh housing society scam

MUMBAI: The Bombay high court (HC) on Thursday discharged Kailash Gidwani and Jawahar Jagiasi from the Adarsh housing society scam. The trial court dropped some of the charges levelled by the Central Bureau of Investigation (CBI) against Kailash, the son of the prime accused in the case, Kanhaiyalal Gidwani, and Jagiasi.

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The high court recently dropped the remaining charges against them for offences punishable under sections 8 (taking gratification by corrupt or illegal means to influence public servants) and 9 (taking gratification to exercise personal influence with public servants) of the Prevention of Corruption (PC) Act.

Adarsh housing society, a 31-storey upscale residential complex in Colaba, should have originally housed war heroes and war widows who lost their spouses during the 1999 Kargil War. But the occupants of the apartment complex built on defence land ended up being bureaucrats and relatives of politicians who were in no way connected with the war.

Scrutiny over the high-profile list of owners of the society prompted the Army and CBI to launch separate probes in 2010.

Kailash Gidwani and Jawahar Jagiasi had filed a revision application challenging the February 2020 order of the special CBI judge, who had refused to discharge under the said sections.

The special judge had partly allowed their pleas for discharge and discharged the duo from the offence punishable under sections 7, 12 and 13 (2) and 13(1)(d) of the PC Act but refused to discharge them from offences punishable under sections 8 and 9 of the PC Act.

The duo claimed that though the prosecution had failed to establish that they had paid gratification to a public servant for a particular purpose to be achieved, the special judge had relied upon the statements of witnesses to arrive at the conclusion that money paid by them was gratification.

The HC while allowing the revision application, held that as there was no sufficient material to proceed against the two, the special court order denying them discharge suffered from “non-application of mind” and hence deserved to be quashed and set aside.

The single judge bench of justice Bharati Dangre while hearing the application of Gidwani and Jagiasi was informed by senior advocates Satish Maneshinde and Girish Kulkarni that the HC had discharged an accused, Mandar Goswami, from sections 8 and 9 of the PC Act based on the finding that there was no evidence to prove that he had accepted gratification from late Kanhaiyalal Gidwani, the chief promoter of Adarsh Society with regards to the case.

The bench was informed that the prosecution only proceeded on the presumption that the transactions alleged in the charge-sheet were in relation to exercising personal influence in relation to Adarsh case, however, nothing had come forward through the entire chargesheet to establish a link of the alleged recovery of diaries to the Adarsh case. Their specific submission was that the material compiled in the charge-sheet was insufficient to frame charges against the applicants.

The bench was further informed that Goswami was discharged by HC on September 5, 2018, holding that there existed no public servant who was influenced, as per the allegation of the prosecution, and hence nothing remained to substantiate the charge either u/s. 8 or 9 of the PC Act.

Advocates Sandesh Patil, Chintan Shah and Aayush Kedia opposed the revision application on behalf of CBI and submitted that the amount was accepted for some unknown CBI officials and the material in the charge-sheet was sufficient to establish the charge under section 8 of the PC Act. Patil submitted that the amount was taken as gratification to influence the public servant and the said offence was clearly made out and there was sufficient material in the form of statements of employees of the applicants to establish that the amount was given in cash.

After hearing the submissions, justice Dangre noted that the statements of the witnesses were the only material compiled in the charge sheet which failed to establish the necessary ingredient of Section 8. The court added that merely because the term used in section 8 is “whoever accepts,” in absence of the ingredients of the section being fulfilled, the material cannot be termed sufficient to proceed against the two applicants. The bench said the special judge had erred in not taking the said position into account.