The State Of Bihar vs M. Homi And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 62 of 1953

Decision Date: 24 March 1955

Coram: Bhuvneshwar P. Sinha, Vivian Bose, B. Jagannadhadas

The case was styled The State of Bihar versus M. Homi and another and was decided on 24 March 1955 by the Supreme Court of India. The judgment was authored by Justice Bhuvneshwar P. Sinha, and the bench also comprised Justices Vivian Bose and B. Jagannadhadas. The official citation of the decision is 1955 AIR 478 and 1955 SCR (2) 78. The matter concerned the construction of penal stipulations contained in a surety bond.

According to the headnote, the bond required the sureties to pay Rs 50,000 only in the event that Mr Ali Khan failed to surrender to the Deputy Commissioner of Singhbhum within three days after receiving notice of an order or judgment of the Judicial Committee, if that order or judgment upheld the sentence in whole or in part. Constitutional changes transferred the jurisdiction of the Privy Council to the Federal Court, and consequently Ali Khan’s appeal to the Privy Council was heard and dismissed by the Federal Court. Following that dismissal, the Deputy Commissioner issued a notice to the sureties directing them to produce Ali Khan within three days. The Court held that the proceedings against the sureties were fundamentally misconceived because the penal condition specified in the bond had not been triggered, as the bond’s terms made the penalty contingent upon the surrender requirement that never arose. The Court emphasized that penal provisions in a surety bond must be construed with strict precision and rejected any legal fiction that would treat the Federal Court’s judgment as the judgment or order contemplated by the parties to the bond.

The appeal was criminal appellate jurisdiction, identified as Criminal Appeal No. 62 of 1953, filed under Article 134(1)(c) of the Constitution against the judgment and order dated 27 March 1953 of the Patna High Court in Criminal Revision No. 1290 of 1951, which itself arose from the judgment and order dated 12 November 1951 of the Sessions Judge, Singhbhum in Criminal Revision No. 16 of 1951. The State of Bihar was represented by the Advocate-General, Mahabir Prasad, assisted by counsel Shyam Nandan Prasad and M. V. Sinha. The respondent was represented by counsel S. N. Mukherji. The judgment was delivered on 24 March 1955 by Justice Sinha. In delivering the judgment, the Court noted that it was unnecessary to hear the respondent’s counsel on the merits of the lower court’s decision because the essential issue before this Court concerned the interpretation of the surety bond’s terms, which were being enforced against the respondents who were the sureties.

In this case, the respondent Maulavi A. Ali Khan had been convicted by the Tribunal in Calcutta under section 120-B read with section 420 of the Indian Penal Code and was sentenced to four years’ rigorous imprisonment and a fine of one lakh rupees. The Patna High Court subsequently upheld both the conviction and the sentence. While in custody, Ali Khan submitted a petition to the Provincial Government requesting a suspension of his sentence so that he could lodge an appeal against the conviction and sentence before the Judicial Committee of the Privy Council. The Provincial Government agreed to the petition, subject to certain conditions, which the petitioner accepted. Consequently, the Governor of Bihar issued an order directing that the execution of Ali Khan’s sentence be suspended pending the hearing of the proposed appeal before the Judicial Committee of the Privy Council. The order required Ali Khan to furnish security amounting to fifty thousand rupees, secured by two sureties each contributing twenty-five thousand rupees, to the satisfaction of either the Sub-Divisional Officer at Jamshedpur or the Deputy Commissioner of Singhbhum. The order also imposed two undertakings. First, it required Ali Khan to prove by 1 December 1946 that he had taken all necessary steps to file the appeal. Second, it required him to surrender to the Deputy Commissioner of Singhbhum within three days of receiving notice of any order or judgment of the Judicial Committee if that order or judgment upheld the sentence in whole or in part. The order further provided that, if Ali Khan was in custody, he could be released provided he complied with the stated conditions. The order was signed by T.G.N. Ayyar, Secretary to the Government, on behalf of the Governor of Bihar. In accordance with the resolution of the Provincial Government, a surety bond was obtained from the respondents. The material portion of the bond (Ex. 2) reads as follows: “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 judgment the sentence is upheld either partly or wholly”. The bond is dated 19 October 1946.

As a result of constitutional developments, the jurisdiction of the Privy Council was transferred to the Federal Court by operation of the Abolition of the Privy Council Jurisdiction Act (Constituent Assembly Act V of 1949), which came into force on 10 October 1949. From that appointed day onward, all appeals pending before the Judicial Committee of the Privy Council were deemed transferred to the Federal Court.

All appeals that were pending before the Judicial Committee of the Privy Council were transferred to the Federal Court by operation of section 6. Consequently, the appeal filed by Ali Khan against his conviction was also transferred to the Federal Court and was later heard by that Court. The Federal Court dismissed Ali Khan’s appeal in November 1950. While this appeal was pending, Ali Khan travelled to London to pursue his case and subsequently migrated to Pakistan, thereby placing himself outside the jurisdiction of Indian courts. In December 1950 the Deputy Commissioner of Singhbhum served a notice on the sureties—who were the respondents in this matter—requiring them to produce Ali Khan within three days. When the sureties failed to comply, the Deputy Commissioner issued a show-cause notice demanding an explanation as to why their bond should not be forfeited. The sureties objected to the Deputy Commissioner’s proceedings on the ground that he lacked jurisdiction to initiate them. The Deputy Commissioner, however, deferred consideration of these preliminary objections and ordered that all disputed points be fully heard at a final hearing. The respondents then approached the Sessions Judge of Singhbhum, who, by an order dated 12 November 1951, dismissed their objections and held that the Deputy Commissioner possessed the requisite jurisdiction to commence the proceedings. The judgment of the Sessions Judge was rendered without recording his reasons. Dissatisfied, the respondents filed a revision petition before the High Court challenging the Sessions Judge’s order.

The Division Bench of the High Court allowed the revision, holding that the Deputy Commissioner did not have the authority he claimed to enforce the terms of the surety bond against the respondents, and consequently set aside the proceedings initiated by the Deputy Commissioner. This decision gave rise to the present appeal by the State of Bihar. The bond in question expressly required the sureties to pay Rs 50,000 only if Mr Ali Khan failed to surrender to the Deputy Commissioner of Singhbhum within three days of receiving notice of an order or judgment of the Judicial Committee, provided that such order or judgment upheld his sentence, either in part or in whole. Because the penal clause of the bond must be strictly construed, the conditions stipulated therein had not been satisfied. No order or judgment of the Judicial Committee had upheld the sentence against Ali Khan, either wholly or partially. Accordingly, the contingent event described in the bond never occurred, and the stipulated penalty was never triggered. The Court therefore concluded that the proceedings brought against the sureties were wholly unfounded. In these circumstances, the Court found it unnecessary to examine the appeal on its merits, particularly the question of jurisdiction, which had already been resolved by the High Court.

The Court considered the arguments presented by the Advocate-General of Bihar, who had appeared in support of the appeal. The Advocate-General contended that, given the sequence of events, no judgment or order had been issued by the Judicial Committee. He further argued that, because constitutional changes had transferred jurisdiction to this Court, the judgment issued here should be treated as the judgment or order contemplated by the parties to the surety bond. After careful examination, the Court found this contention to be without any substantive merit and therefore not a valid basis for relief. The first reason for rejecting the argument was that the surety bond contained no provision binding the surety to any judgment or order issued by a court. Such a court would be one that had succeeded the Judicial Committee of the Privy Council in exercising appellate jurisdiction. The second reason was that the penal clause of a surety bond cannot be interpreted by applying a legal fiction, as the appellant suggested. The Government, through its legal advisers, had failed to include any alternative clause that would give this Court’s judgment the same effect as that required by the bond. Because such a clause was absent, the bond could not be said to have been triggered by the judgment rendered in this proceeding. Consequently, the appeal was dismissed at the threshold, and a formal order of dismissal was entered into the record. The dismissal of the appeal therefore concluded the litigation, leaving the original proceedings and their outcomes untouched and without further modification.