The Bombay High Court on Friday quashed a lower court order refusing to remand former Congress MLC and a prime accused in the Adarsh Housing scam Kanhaiyalal Gidwani in the custody of CBI.
Allowing an application filed by CBI challenging the March 26 order of the special CBI court remanding Gidwani in judicial custody, Justice R C Chavan directed the lower court to decide afresh the agency's request for further custody.
The special court had refused to extend Gidwani's CBI custody after accepting the defence lawyer's argument that the accused was already in its custody for ten days in a bribery case related to the Adarsh scam. Gidwani, his son and two lawyers, including CBI's special public prosecutor Mandar Goswami, were arrested in the bribery case in the first week of March and released on bail after being in the custody of the central agency for 10 days.
They were alleged to have entered into a criminal conspiracy to have the charges against Gidwani in the Adarsh scam diluted. Soon after he came out of jail, Gidwani was arrested again in the Adarsh scam case. After being denied Gidwani's custody by the CBI court in the Adarsh case, the agency moved the high court contending that it could seek the custody of an accused up to 15 days.
"Gidwani was earlier in CBI custody for ten days in another case. Later he was in custody for four days in the Adarsh scam. Both are different offences and two separate FIRs have been lodged," CBI counsel Ejaz Khan argued. Accepting his argument, Justice Chavan said, "The lower court has overlooked the distinction between the two cases. They are separate and distinct offences."
Noting that Gidwani was arrested in the Adarsh case only on March 21 and his 15-day police custody was not over, the High Court directed the special court to decide CBI's application for further custody on merit.
Justice Chavan, however, raised a query as to why CBI had arrested the accused in the Adarsh fraud more than a year after registering the FIR.
"The case was registered in January last year and accused have been arrested in March this year. After one year what evidence you (CBI) got that arrests were made? Or was it because of bashing from another bench of this court for inaction?" Justice Chavan asked.
According to CBI, Gidwani was the chief promoter of the plush Adarsh society in south Mumbai and was instrumental in securing crucial clearances from different government departments. While Gidwani owns three flats in the 31-storey building, he is alleged to have made payment for four benami flats.
"Of these four flats, two were reserved in proxy to oblige influential state government officials who dealt with the concerned file during the relevant period," CBI had told the designated court.