JUDGMENT : By the Court:- 1. Heard the parties through video conferencing. 2. It is submitted by Mr. A.K. Das, the learned counsel for the petitioner that this petition has been filed invoking the jurisdiction of this Court under section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding in connection with RC Case No. 20(A)/95 (D) dated 17.10.1995 including the order dated 01.02.2001 whereby and where under, the learned Special Judge , CBI Dhanbad has taken cognizance of the offences punishable under Sections 120 B, 420, 465, 468 and 471 of the Indian penal Code and also under Section 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act corresponding to Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947, now pending in the court of learned Special Judge-cum-Additional Sessions Judge –IV, Dhanbad. 3. It is next submitted by Mr. Das that this case is based upon an F.I.R., in which allegations were levelled against the co-accused public servants who are the accused nos. 1 to 5 on the petitioner’s firm which was awarded the contract work relating to coal transportation and operation of Alakdiha Stockyard, BCCL. It is next submitted by Mr. Das that after investigation, charge sheet was submitted inter alia against the petitioner for having committed the said offences and consequent upon that learned Special Judge, CBI took cognizance of the said offences. It is next submitted that the allegation against the petitioner and other accused persons relating to the processing, approval, award and execution of a particular contract job of BCCL namely transportation of coal and operations of Alakdiha Stockyard of the said BCCL in favour of the petitioner firm which took place between the period of May, 1986 and November, 1990 and the execution of the job was completely over. After cognizance numerous inconsistencies were found in the charge sheet and several facts were not brought in the said charge sheet. After cognizance numerous inconsistencies were found in the charge sheet and several facts were not brought in the said charge sheet. When the matter was brought to the knowledge of C.B.I., Dhanbad the agency realized that suppression of vital facts to the court may lead to expose the wrong doing of the C.B.I. during the trial and may lead to a major embarrassment to the C.B.I. The C.B.I., Dhanbad therefore resorted to face saving exercise and approached the learned court in the month of March, 2003 praying for grant of permission for carrying out a further investigation in connection with this case under Section 173(8) Cr.P.C. 4. The brief facts of the case is that in the month of May, 1986, Coal India Limited (in short 'CIL') invited tenders for the work of screening, loading and transportation of coal from various collieries of BCCL to Alakdiha Coal Dump. Pursuant to that, three parties including the petitioner-M/s. Continental Transport and Construction Corporation (M/S CTCC) submitted their tender papers. The tenders were processed by a Committee consisting of four persons, all officials of M/s. BCCL (accused nos.2 to 5). During the course of such proceeding, it is alleged that the co-accused officers of BCCL intentionally and fraudulently proposed to extend the scope of work by including additional items to show favour to the petitioner. The additional items were approved by the Chairman-cum-Managing Director of BCCL in conspiracy with the petitioner and others though inclusion of the additional items had never been approved by the Chairman of Coal India Limited (CIL). It is further alleged that the additional items were included with a malafide intention to favour the petitioner and accordingly work pertaining to loading of coal was awarded to M/s. CTCC by the co-accused person @ Rs.5.25 per M.T in the year 1987 whereas in the year 1992, for the same job, the work had been awarded at a lower rate of Rs.4.08 per M.T. It is further alleged that in the year 1992, M/s. BCCL invited fresh tenders for transportation of coal to Alakdiha Coal Dump. That was challenged by the then partner of the petitioner before the Kolkata High Court and the then partner of the petitioner fraudulently and dishonestly represented before the Management of M/s. BCCL, that the Kolkata High Court has restrained M/s. BCCL from interfering with the contract work awarded to M/s. CTCC, as a result of which, M/s. BCCL decided to drop the transportation work for Alakdiha Coal from NIT and thereby the petitioner-M/s. CTCC was allowed to continue with the work and was benefited. Further it has been alleged that M/s. BCCL sustained huge wrongful loss on account of payment being made to M/s. CTCC towards transit loss, supervision of loading of customer’s truck and maintaining grade wise stock and loading of coal to the tune of Rs.1,32,51,305.33 and thus the petitioner has committed the said alleged offences. During investigation, it was found that M/s. CIL, Kolkata had issued NIT for transportation of coal/coke from the colliery to the stockyard for unloading, screening, stacking size wise and grade wise at stockyard. Though the last date of submission of the tender was 01.07.1986 but a telephonic message was received by the Dy. C.M.E (Sales) of BCCL, Dhanbad to the effect that date of sale of tender paper has been extended up to 18.7.1986 and last date of submission of tender has been extended up to 22.7.1986 but despite the extension of date of the tender, as per the order of the then C.M.D. who is a co-accused, the tenders were opened on 1.7.1986 in utter disregard to the instruction issued by M/s. CIL, Kolkata but the co-accused officers of BCCL in violation of the directions and rules of C.I.L, Kolkatta being members of tender committee made recommendation for inclusion of following additional items, though it were never part of the NIT and more over loading of coal was the responsibility of BCCL. Item no.1(ii) - Provision of transit loss not applicable for this work Item no.2 - Not applicable for this work Item no.3(b)II - Staking of grade wise coal properly in a position to keep ready for loading by pay loaders. Item no.3(b)III - Proper supervision of stocks and arrangements to maintain grade wise dispatches. Item no.3(b)VI – Provision for ground shortage Item no.3(b)IV – Loading of customer’s truck as and when required in the event of failure of mechanical aids of BCCL. 5. Item no.3(b)III - Proper supervision of stocks and arrangements to maintain grade wise dispatches. Item no.3(b)VI – Provision for ground shortage Item no.3(b)IV – Loading of customer’s truck as and when required in the event of failure of mechanical aids of BCCL. 5. On receiving recommendation, the then CMD directed the Tender Committee to combine item no.1(ii) and item no.3(b)VI for obtaining a package offer covering all the items referred above from all the tenderers and to consider once again before one is awarded contract. Thereafter the tender committee dishonestly and fraudulently recommended for award of work to the petitioner, though the rate quoted by the petitioner -M/s. CTCC and M/s. Patliputra Transporters and Contractors were the same as Rs.5.25 per M.T. The tender committee further recommended for release of mobilization advance to the extent of 10% of the estimated value of work. This rate accepted by the Tender Committee was very high; as later on similar kind of work contract had been awarded @ Rs.4.05. In spite of that, the then CMD approved the said recommendation made by the tender committee, whereby award was given at the package rate of Rs.9.90 per M.T., inclusive of all the additional items. Upon work being executed, a sum of Rs.1,02,39,799.66 (Rs.1.02 crores approximately) was paid for loading of the coal at colliery @ Rs.5.25 per M.T and further an amount of Rs.91,54,973.52 was paid to the petitioner for loading of coal in consumer’s truck @ Rs.5.25 per M.T. during the relevant period, i.e. between 1987-1993, though loading of coal was the responsibility of M/s. BCCL as per provision of NIT and, thereby, recommendation and its approval by co-accused- the then CMD of awarding additional work was dishonestly done to favour the petitioner and on account of that, wrongful loss to the tune of Rs.1.93 crores approximately was caused on account of awarding work as additional items and further wrongful loss of Rs.0.44 crores (approximately) was caused on account of making excess payment towards loading of coal. Thus, it is alleged that M/s. BCCL suffered wrongful loss to the tune of Rs.2.37 crores. Thus, it is alleged that M/s. BCCL suffered wrongful loss to the tune of Rs.2.37 crores. Subsequently, the then CMD was asked to present his representation before the Joint Director, East CBI, Kolkata and accordingly, he made representation and it was explained to the C.B.I. that the Chief of the Marketing of M/s. CIL, vide its letter dated 18.9.1986 addressed and authorized M/s. BCCL for processing the tender and to award contract relating to operation of Alakdiha Stockyard. Documents were also there to show that approval of the award of the contract had been accorded by the Board of M/s. BCCL and thereupon the C.B.I made a prayer before the concerned court for allowing him to go for further investigation. The prayer was allowed. During investigation, the Investigating Officer after taking statements of Director of M/s. BCCL and also the Company Secretary of M/s. BCCL did find that the then Chief of Marketing of CIL had written a letter dated 18.9.1986 to the co-accused, CMD, BCCL authorizing BCCL to deal with the matter related to the contract for operation of Alakdiha Stockyard of M/s. BCCL in the manner which he deems fit and proper. Further it was found that final approval of the award contract was accorded by the Board of M/s. BCCL in its 102nd meeting held on 08.04.1987. After finding the same, the Investigating Officer submitted supplementary charge sheet before the court below on 29.05.2003. Much thereafter, an application was filed before this Court, vide Cr.M.P. No. 264 of 2007 by the then CMD, whereby the entire criminal proceeding of R.C. No. 20(A) of 1995(D) including the order taking cognizance dated 25.01.2001 was challenged wherein it had been argued that the Investigating Officer while submitting charge sheet had misrepresented the fact by distorting the same to cause prejudice to the then CMD and, thereby, it had mislead the Court to take cognizance of the offence against the then CMD which would be evident from the supplementary report submitted; which apparently indicates that only when M/s. BCCL was authorized to process the tender and to award contract, the Board undertook the processing of the tender and made recommendation for awarding contract to the petitioner which was approved by the Board of M/s. BCCL. However, this Court did hold that defect or illegality in investigation however serious had no direct bearing on the order taking cognizance unless illegality in investigation brings about a miscarriage of justice and thereby the court did not find it proper to interfere with the order taking cognizance. However, liberty was granted to the petitioner of that Cr.M.P. to agitate the ground on the basis of materials available on the record at the stage of commencement of the trial against him. Thereafter, the then CMD in the light of the observation made by this Court and also the then partners of the petitioner filed applications under Section 239 of the Code of Criminal Procedure for discharging them from the case and it was disposed of on 27.09.2010 holding therein that sufficient materials are there against them for framing of charge and being aggrieved by that order, Cr. Revision No. 37/2011, was filed on behalf of the co-accused B.R. Prasad, which was allowed whereby he was discharged. The said order was challenged by the C.B.I. before the Hon’ble Supreme Court of India vide Special Leave to Appeal (Crl.) No. 2324 of 2015 but by order dated 20.11.2019, the Hon’ble Supreme Court of India did not find any ground to interfere with the said order of the High Court and dismissed the Special Leave Petition. The then only two partners of the petitioner who were made co-accused in this case for the omission and commission of the this petitioner in the alleged offence, also filed Cr. Revision No. 32/2011 and vide the common order dated 18.07.2014 with criminal miscellaneous petition no.1201 of 2010-which was filed by the then General Manager of BCCL, and who was the Chairman of the tender committee and who after his retirement was employed by the petitioner as a reward for the favours done by him to the petitioner by way of reemployment as a director of the petitioner, both, the said then partners of the petitioner namely Ramesh Gandhi and Rajesh Gandhi were discharged by setting aside the said order dated 27.09.2010 of the trial court and the order dated 01.02.2001 by which cognizance was taken against the said Kanai Lal Bose was set aside in criminal miscellaneous petition no.1201 of 2010. It is next submitted by Mr. It is next submitted by Mr. A.K. Das that the C.B.I. has come forward with two fold accusations one is that:- (i) in-spite of direction being given by the authority of M/s. CIL not to process the tender received from the tenderers, pursuant to NIT issued by M/s. CIL, officials of M/s. BCCL by ignoring it proceed with the process of the tender. (ii) In the NIT issued by M/s. CIL, parties were asked to put forth their offer for transportation of coal/coke from the collieries to the stockyard and unloading, screening and stacking size wise and grade wise at the stock yards only, whereas the tender committee while processing the matter relating to tender included five items which have been stated above and asked the tenderers to submit their bids. On submission of the price bid over the additional items when M/s. CTCC was found to be L-1 recommendation was made to award contract to it with the approval of the co-accused Chairman- cum Managing Director of BCCL.” 6. It is then submitted by Mr. Das for the petitioner that in respect the aforesaid two accusations, this Court examined the matter with reference to the materials collected by the I.O. during investigation and also further investigation and came to the conclusion in the said common order dated 18.07.2014 in Cr. Revision No. 32/2011 with Criminal Miscellaneous Petition no.1201 of 2010; that the Tender Committee had proceeded with the matter relating to the process of the Tender only after getting green signal from the headquarter and, thereby, the Court did find the allegations to be baseless. 7. With respect to second accusation in the aforesaid cases, it is submitted by Mr. Das that this Court did find that there was justification for the inclusion of the additional items and the decision of inclusion of the additional items got approval by the Director (Finance) CIL when he became satisfied with the clarification submitted by the Tender Committee. 7. With respect to second accusation in the aforesaid cases, it is submitted by Mr. Das that this Court did find that there was justification for the inclusion of the additional items and the decision of inclusion of the additional items got approval by the Director (Finance) CIL when he became satisfied with the clarification submitted by the Tender Committee. When the Tender was finalized it was sent for its approval before the Board of Directors, who on its meeting held on 08.04.1987, approved the proposal and only thereafter the contract was awarded to M/S CTCC and this fact was found to be correct by the Investigating Officer during reinvestigation and under these circumstances, this Court did hold that the accusation made by the CBI that the accused persons in conspiracy with each other had included the additional items to put M/S CTCC in advantageous position falls flat. It is then submitted by Mr. Das in view of such findings, there remains nothing against the petitioner and, thereby, the entire criminal proceeding and the cognizance taken against the petitioner be also quashed, more so, because after discharge of the only two then partners of the petitioner who were the only persons related to the petitioner who were arraigned as an accused in this and no person representing the petitioner is an accused in this case and the constitution of the petitioner has been changed from the partnership firm to a company, much after the commission of the alleged offence. 8. Mr. Rohit Sinha, leaned counsel for the C.B.I. opposed the prayer of the petitioner and submitted that in the said orders relied upon by the petitioner, by which either the co-accused persons have been discharged or the entire criminal proceeding against them has been quashed, the coordinate Benches of this Court did not consider that the co-accused Kanai who was the petitioner of Criminal Miscellaneous Petition no.1201 of 2010, was employed as director by this petitioner. Mr. Mr. Rohit Sinha, further submits that though both the then partners of the petitioner have been discharged still they can be asked to face the trial on behalf of the then partnership firm and if trial goes on it may so happen that evidence will come on record and the same persons who have already been discharged can be arraigned under Section 398 Cr.P.C. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Rajesh and Others Vs. State of Harayana, reported in (2019) 6 SCC 368 wherein it was held by the Hon’ble Supreme Court of India that in case an accused is discharged the court may proceed against the discharged accused person under Section 398 Cr.P.C. without resorting to provision under section 319 Cr.P.C. directly and no proceeding can be commenced against the person who has been discharged directly under Section 319 Cr.P.C. without taking recourse to the provisions of Section 300 (5) read with Section 398 Cr.P.C. it is submitted by Mr. Sinha that as there is chance of evidence coming on record hence the criminal proceeding ought not be quashed. 9. Having heard the submissions made at the Bar and after going through the record, it is pertinent to mention here that it is a settled principle of law that if the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross examination or rebutted by the defence, the evidence, if any, cannot show that the accused committed offence, then there will be no sufficient ground for proceeding with the trial and when the Coordinate Benches on the same materials, upon which the co-accused are being prosecuted, came to the conclusion that nothing is there to establish that the then partners of the petitioner were in conspiracy with each other or the other accused persons and even the order by which one of the co-accused was discharged has not been interfered with by even the Hon’ble Supreme Court and the Special Leave Petition has already been dismissed and though the then only two partners of the petitioner have also been discharged by an order passed about a little less than six years ago yet the opposite party-Respondent has not thought it proper to challenge the same and allowed the said order to reach finality. This Court is of the considered view that the continuing with the prosecution against the petitioner with the hope that some evidence may come in future which the prosecution has failed to produce up till now will be a futile exercise, in view of the fact that the materials collected against the petitioner appears prima facie shaky as has been observed by the Hon’ble Supreme Court of India while dismissing the said Special Leave Petition. So far as the contention of Mr. Rohit Sinha regarding Rajesh and Others Vs. State of Harayana, (supra) is concerned, in the said judgment Hon’ble Supreme Court has laid down the law that a person discharged cannot be arraigned as an accused again in the case by exercise of the power vested upon the court under Section 319 Cr.P.C. directly. As already mentioned above, the said common order dated 18.07.2014 passed in Cr. Revision No. 32/2011 with Criminal Miscellaneous Petition no.1201 of 2010 by the co-ordinate bench of this court, by which the only two co-accused partners of the petitioner were discharged, has not been challenged by the C.B.I. for reasons best known to it and thus the said order has reached finality. This being the position, in the considered view of this court, the ratio of Rajesh and Others Vs. State of Harayana (supra) will not be applicable in this case. 10. In view of the facts of this case and the discussions made above, this Court is of the considered views that this is a fit case where the entire criminal proceeding as well as the order dated 01.02.2001 by which cognizance has been taken; so far as it relates to this petitioner -M/s. Continental Transport and Construction Corporation Limited, (CTCC) be set aside and quashed. 11. Accordingly, the entire criminal proceeding in connection with RC Case No. 20(A)/95 (D) dated 17.10.1995 is quashed, so far as it relates to the petitioner- M/s. Continental Transport and Construction Corporation Limited, (CTCC) and the order dated 01.02.2001 so far as it relates to this petitioner is hereby set aside. 12. In the result, this criminal miscellaneous petition is allowed.