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PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: M. HOMI AND ANOTHER.

DATE OF JUDGMENT: 24/03/1955

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. BOSE, VIVIAN JAGANNADHADAS, B.

CITATION:  1955 AIR  478            1955 SCR  (2)  78

ACT: Surety bond-Stipulations of a penal nature-Whether should be construed strictly.

HEADNOTE: In  a surety bond the sureties bound themselves for  payment of  Rs. 50,000 "only in case Mr. Ali Khan  fails............ to surrender to the Deputy Commissioner of Singhbhum  within three,  days  of the receipt of the notice of the  order  or judgment  of the Judicial Committee if by the said order  or judgment  the sentence is upheld either partly  or  wholly". As  a result of the constitutional changes the  jurisdiction of  the Privy Council came to be transferred to the  Federal Court, and eventually Ali Khan’s appeal to the Privy Council was heard and dismissed by the Federal Court.  Thereupon the Deputy Commissioner issued notice to the sureties to produce Ali Khan within three days. Held,  that the proceedings taken against the sureties  were entirely misconceived as the penalty stipulated had not been incurred, in view of the terms of the bond set out above. Provisions  in a surety bond which are penal in nature  must be  very  strictly construed and there is no  room  for  the application  of  a legal fiction that the  judgment  of  the Federal  Court  must be deemed to be the judgment  or  order contemplated by the parties to the surety bond.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 62 of 1953. Appeal  under.  Article 134(1)(c) of the  Constitution  from the Judgment and Order dated the 27th March 1953 of the High Court  of Judicature at Patna in Criminal Revision No.  1290 of 1951 arising out of 79 the  Judgment and Order dated the 12th November 1951 of  the Court of Sessions Judge, Singhbhum in Criminal Revision  No. 16 of 1951. Mahabir  Prasad,  Advocate-General for the  State  of  Bihar (Shyam  Nandan  Prasad and M. V. Sinha, with him),  for  the

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appellant. S. N. Mukherji, for the respondent. 1955.  March 24.  The Judgment of the Court was delivered by SINHA  J.-In  this appeal we did not think it  necessary  to hear  the counsel for the respondents on the merits  of  the decision  appealed from in the view we have taken,  as  will presently appear, of the terms of the surety bond which  was being  sought  to  be enforced  against  the  sureties,  the respondents in this Court.  The surety bond in question  was taken in circumstances which clearly appear from the follow- ing  resolution  of the Government of Bihar dated  the  17th October 1946:- "Whereas  one Maulavi A. Ali Khan, who was  convicted  under section  120-B read with section 420, Indian Penal  Code  by the  First Special Tribunal, Calcutta and sentenced to  four years’  rigorous imprisonment and a fine of rupees  one  lac which conviction and sentence have been subsequently  upheld by  the  Patna High Court, has submitted to  the  Provincial Government a petition praying for suspension of his sentence in order to enable him to prefer an appeal against the  said conviction  and  sentence to the judicial Committee  of  the Privy Council And  Whereas  the  Provincial Government  have  granted  the prayer   of  the  petitioner  subject  to   the   conditions hereinafter specified which the petitioner has accepted: Now, therefore, the Governor of Bihar hereby orders that the execution  of the aforesaid sentence of Maulavi A. Ali  Khan be  suspended pending the hearing of the proposed appeal  to the   Judicial  Committee  of  the  Privy  Council  on   his furnishing  security worth Rs. 50,000 with two  sureties  of Rs. 25,000 each to the 80 satisfaction   of   either   the   Sub-Divisional   Officer, Jamshedpur  or  the  Deputy Commissioner  of  Singhbhum  and undertaking  (1) to furnish proof by the 1st December,  1946 of  his having taken all necessary steps for the  filing  of the  appeal  and  also  (2)  to  surrender  to  the   Deputy Commissioner  of Singhbhum within three days of the  receipt of  the  notice  of the order or judgment  of  the  Judicial Committee  if by the said order or judgment the sentence  is upheld  either  partly  or wholly.  The  petitioner,  if  in custody,  may  be  released if he complies  with  the  above conditions.              By order of the Governor of Bihar,                     (sd.) T.G.N. Ayyar,                  Secretary to Government". In pursuance of that resolution the surety bond in  question was taken from the respondents.  The material portion of the bond (Ex. 2) is in these terms: "We,  S. T. Karim, son of Abdul Wahab, by caste  Mohammedan, by occupation Contractor and Proprietor Jamshedpur and  Star Talkies,  Jamshedpur,  residing at  Sakchi,  police  station Sakchi  in  Town Jamshedpur, district Singhbhum,  (2)  Manik Homi,  son  of  late  Homi Engineer,  by  caste  Parsee,  by occupation  zamindar  of Mango, residing  at  Mango,  police station Sakchi, district Singhbhum, Stand surety for the amount of Rs. 25,000 only each and bind ourselves  to  the  Government of Bihar  of  which  we  bind ourselves,  our heirs, executors and successors  firmly  for payment  of  Rs. 50,000 only in case Mr. Ali Khan  fails  to furnish  proof by the 1st December 1946 of his having  taken all  necessary  steps for the filing of the  appeal  and  to surrender  to  the Deputy Commissioner of  Singhbhum  within three  days  of the receipt of the notice of  the  order  or judgment  of the Judicial Committee if by the said order  or

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judgment the sentence is upheld either partly or wholly". It  is  dated the 19th October, 1946.  As a  result  of  the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court by virtue of the Abolition of the Privy Council Juris- 81 diction Act (Constituent Assembly Act V of 1949) which  came into  force on the 10th October, 1949.  As, from  that  date ("the  appointed  day")  all  appeals’  pending  before  the Judicial Committee of the Privy Council by virtue of section 6 stood transferred to the Federal Court.  Ali Khan’s appeal to  the  Privy Council thus got transferred to  the  Federal Court and in due course was heard by this Court.  This Court dismissed the appeal in November 1950.  In the meantime  Ali Khan,  the convicted person, who had gone to London to  look after his appeal there, migrated to Pakistan and thus placed himself beyond the jurisdiction of the courts in India.   In December  1950 the Deputy Commissioner of  Singhbhum  issued notice to the sureties, the respondents, to produce Ali Khan within  three days.  On their failure to do so,  the  Deputy Commissioner  called  upon the sureties to  show  cause  why their  bond  should not be forfeited.  The  sureties  raised certain  legal  objections to the proceedings taken  by  the Deputy   Commissioner.   They  contended  that  he  had   no jurisdiction  to  initiate  the  proceedings.   The   Deputy Commissioner  postponed  the  decision  of  the  preliminary objections  and directed that all the points in  controversy shall be heard and determined at the final hearing.  Against that  order  the  respondents moved the  Sessions  Judge  of Singhbhum  who by his orders dated the 12th  November,  1951 overruled   their  objections  and  held  that  the   Deputy Commissioner  had jurisdiction to initiate the  proceedings. It is not necessary to set out his reasons.  The respondents moved  the  High  Court  in  revision  against  the   orders aforesaid  of the Sessions Judge.  A Division Bench  of  the High  Court allowed the application holding that the  Deputy Commissioner  had  no such jurisdiction as he  purported  to exercise in the matter of enforcing the terms of the  surety bond against them.  Accordingly, the High Court quashed  the proceedings  before  the Deputy  Commissioner.   Hence  this appeal by the State of Bihar. From  the  terms of the surety bond quoted  above  it  would appear that the sureties bound themselves for 11 82 payment   of  Rs.  50,000  "only  in  case  Mr.   Ali   Khan fails............................     to  surrender  to  the Deputy  Commissioner of Singhbhum within three days  of  the receipt  of  the  notice of the order  or  judgment  of  the Judicial  Committee  if by the said order  or  judgment  the sentence  is  upheld either partly or wholly".  In  view  of this  clear provision in the bond the terms of  which  being penal  in nature must be very strictly construed, it  cannot be  said that the contingencies contemplated by the  parties has  occurred.   There  was  no judgment  or  order  of  the Judicial Committee upholding either in part or in whole  the sentence  against  Ali Khan.  As the terms of  the  bond  so construed cannot be said to have been fulfilled, the penalty stipulated has not been incurred.  It must therefore be held that  the  proceedings taken against  the  respondents  were entirely  misconceived.  It was in these circumstances  that we  did  not think it necessary to hear the  appeal  on  its merits,  that  is to say, on the point  of  jurisdiction  on which the case had been decided by the High Court. It  was  contended  by the  Advocate-General  of  Bihar  who

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appeared  in support of the appeal that in the events  which had  happened  there could be no judgment or  order  of  the Judicial  Committee and that therefore the judgment of  this Court,  which  by virtue of the constitutional  changes  had come by the jurisdiction vested in the Privy Council, should be  deemed to be the judgment or order contemplated  by  the parties  to  the surety bond.  In our opinion, there  is  no substance  in this contention, firstly, because there is  no term  in  the bond to the effect that the  surety  would  be bound by any judgment or order given by such other court  as may succeed to the jurisdiction then vested in the  Judicial Committee of the Privy Council to hear the appeal  preferred by  Ali Khan against his conviction by the courts in  India: and secondly, because there is no room, while construing the penal  clause  of a surety bond, for the  application  of  a legal fiction as suggested on behalf of the appellant.   The Government through their legal advisers were not    83 circumspect enough to insert any such alternative clause  as would  have given the judgment or order of, this  Court  the same  effect as is contemplated by the terms of  the  surety bond quoted above. The appeal must therefore be dismissed in limine.                      Appeal dismissed.