minal Appeal No 62 of 1953
Appeal under
Article 1341c 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 appellant
section N Mukherji for the respondent
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 50000 with two sureties of Rs 25000 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 TGN 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 exhibit 2 is in these terms We section 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 25000 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 50000 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
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 50000 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 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


Summary:
In a surety bond the sureties bound themselves for payment of Rs 50000 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