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11. Clause 67.1 of the condition of contract between NHAI and L & T-HCC (JV) and M/s RITES HALCROW (JV) provided for a Dispute Review Board for resolution of the disputes between the parties, arising out of the said contract. In view of the developments as noted above the dispute arising out of sub-contracting of work by M/s L & T-HCC (JV), was referred to the Dispute Review Board (DRB) in the year 2009, i.e. two years after submission of the charge-sheet. The said DRB consisted of Former Engineer-in-Chief, Government of Andhra Praesh, Former Chief Engineer, CPWD, Government of India and Former Chief Engineer, PWD, Government of U.P. The DRB in its recommendation dated 13.05.2011 recorded findings to the following effect inter alia:-

13. The NHAI, not being satisfied with the decision of DRB approached the Arbitration Tribunal invoking arbitration clause of the agreement. The Arbitral Tribunal justified the decision of DRB on 21.11.2013 and concluded that the percentage of work executed did not exceed the permissible limit. The Tribunal also held that NHAI could not establish breach of contract on the part of the contractor nor could substantiate any loss caused to it. The Tribunal also held that there was no substance in the allegation of making unlawful gain. The Tribunal recorded following findings in its award dated 21.11.2013:-

"6.6. Apparently, after a long silence, the issue of sub-contracting was once again raked up before the DRB, because of CBI Enquiry in the matter. /DRB recommended "Though on the face of the agreements entered with the sub-contractors, there was breach of GCC sub-clause 4.1, the finally executed, accepted and paid works were for Rs. 24.12 crore only, which is less than 10% of the contractual limit. Hence, there is no breach of contract conditions by the Contractor. It is alleged that the respondent has caused a loss of Rs. 21.90 crore to the NHAI by awarding substantial part of the works at a price much less than paid by the NHAI to the Respondent, and claimed under Section 73 of the Indian Contract Act.
7. AIR 2014 SC (cri) 730 ( State of Tamilnadu Vs. N. Suresh Rajan) 8 AIR 2015 SC (Cri) 1249 ( State Vs. Maria Anton Vijay)
9. AIR 2016 SC 4675. ( A. Ayyapsamy Vs. A. Paramasivam and others)

18. On perusal of the materials on record including the First Information Report and the charge-sheet submitted by the Central Bureau of Investigation, in the present facts and circumstances of the case, I am in agreement with the submissions advanced on behalf of the Central Bureau of Investigation that ordinarily after taking cognizance, for the purpose of entertaining an application for discharge under Section 227 of the Code, defence of an accused or developments subsequent to taking of cognizance should not be looked into or taken into account. In the present case, the ground of the petitioners for discharge is based on recommendations made by DRB and award made by the Arbitral Tribunal. Before the Arbitral Tribunal, National Highways Authority of India Limited, L & T-HCC (JV) and RITES HALCROW (JV) were parties. The First Information Report and the charge-sheet allege commission of offences against officials of NHAI, L & T-HCC (JV) and RITES-HALCROW (JV). In that view of the matter, despite the said documents, viz, recommendations of DRB and award made by the Arbitral Tribunal being of unimpeachable character, it may not be safe for the High Court to quash the entire prosecution in exercise of inherent extraordinary power under Section 482 of the Code. For the same reason, it would not have been proper for the Court below to have exercised power under Section 227 of the Code by discharging the petitioner, based on recommendations of the DRB and award of the Arbitral Tribunal. I do not find the impugned order passed by the Court below to be erroneous or illegal, requiring this Court's interference.