# THE ST A TE OF BJHAR v. M. HOMJ AND ANOTHER

- **Citation:** [1955] 2 S.C.R. 78
- **Court:** Supreme Court of India
- **Decided:** 1953-03-27
- **Case number:** Criminal Appeal No. 62 of 1953
- **Bench:** Vivian Bose, Tagannadhadas, Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-st-a-te-of-bjhar-v-m-homj-and-another-1516
- **Pages:** 6

## Headnote

Surety bond-Stipulations of a penal nature-Whether should
be construed strictly.
In a s11rety 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 Aii
Khan within three· days.
Held, that the proceedings taken agaiqst the sureties \Vere entirely .misconceived as the penalty stipulated had not been incurred,
in ,·iew of the terms of the bond set out above.
Provisions in a surety bond which are penal in nature mtist 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.

## Text

78
SUPREME COURT REPORTS
[1955]
1955
because obviously section 25-A is only lln enabling
Shiromani
section providing a cheap remedy by way of a suit
P~~t:;:t:,ik
before the Tribunal itself. We are clearly of the
commime
opinion that the· present suit under section 25-A is
L
S d v. R lb' barred by· limitation and on this ground the appeal
t.
ar ar
ag 1 1r
f .. 1
Singh and othf'rS must a1 .
Jagannadlradas J.
1955
March 24
The appeal is accordingly dismissed with costs.
Appeal dismissed.
THE ST A TE OF BJHAR
v.
M. HOMJ AND ANOTHER
[VIVIAN BOSE, .TAGANNADHADAS and SINHA, .T.T.J
Surety bond-Stipulations of a penal nature-Whether should
be construed strictly.
In a s11rety 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 Aii
Khan within three· days.
Held, that the proceedings taken agaiqst the sureties \Vere entirely .misconceived as the penalty stipulated had not been incurred,
in ,·iew of the terms of the bond set out above.
Provisions in a surety bond which are penal in nature mtist 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.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 62 of 1953.
Appeal under. Article
l 34(])(c) of the Constitution from the Judgement and Order dated the 27th
March 1953 of the High Court of Judicature at Patna
in Criminal Revision No. 1290 of 1951 <•ri5ing out of
•
2 S.C.R.
SUPREME COlJRT REPORTS
79
the Judgment and Order dated the 12th November
JY5S,
1951 of the Court of Sessions Judge, Singhbhum iriTJze State of Bi/tar
Criminal Revision No. 16 of 1951.
M. 'f.iomi
. A1ahabir Prasad, Advocate-General for the State of
Bihar (Shyam Nandan Prasad and M. M. Sinha, with
him), for the 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 following resolution of the Government of Bihar dated the
J 7th 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 o"ne lac which conviction
and sentence have been subsequently upheid 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
al!ainst 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 herebv
orders that the execution of the aforesaid sentence of
Maulavi A. Ali Khan be suspended pending the hearin~ of the proposed appeal to the .Tndicial Committee
of the Privy Council on his furnishing securitv worth
Rs. 50,000 with two sureties of Rs. 25,000 each to the
and another
80
SUPREME COURT REPORTS
[1955]
1955
satisfaction of either
the
Sub-Divisional
Ofi1cer,
The s1;;;e-;,f Bihurlamshedpur or the Deputy Commissioner of SinghM. ~omi
bhum and undertaking (l) to furnish proof by the 1st
and a11ather
December, 1946 of his
having taken all
necessary
Si1tha J.
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 Sii;ighbhum,
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 lst
December 1946 of his havii1g 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 Comrr.ittee if by the said order
or judgment the sentenc.e is upheld either partly or
wholly".
It is dated the 19th October, 1946. As a result of the
constitntional 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-
..
~
.
'
2 S.C.R.
SUPREME COURT REPORTS
81
diction Act (Constituent Assembly Act V of 1949)
!!.5.5
which came into force on the 10th October, 1949. As The State of Bihar
from that date ("the appointed day") all appeals
M. Homi
pending before the Judicial Committee of the Privy
and another
Council by virtue of section 6 stood transferred to the
SinhaJ.
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 Commissione!' 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 quo~ed above it
would appear that the sureties bound themselves for
82
SUPREME COURT REPORTS
[1955]
1955
payment of Rs. 50,000 "only in case Mr. Ali Khan
T!te State of Bi!tarfails ..................... to surrender to the Deputy ComM. 'iiomi
missioner of Singhbhum within three days of the rea11d aii'ther
ceipt of the notice of the order or judgment of the
SinhaJ.
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 term~ 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 respondent; 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 constiti.;tional changes had come by the jurisdiction vested in the Privy Council, should be deemed
to be the ~udgment 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
ficrion as suggested on behalf of the appellant. The
Government through their legal advisers were
1~ot
2 S.C.R.
SUPREME COURT REPORTS
83
circumspect enough to insert any such alternative
195~
clause as would have given the judgment or order of Tlze Sta~;-;,! JJ.ihar
this Court the same effect as is contemplated by the
M v.
.
terms of the surety bond quoted above.
011J !,~~;:er
The appeal must therefore be dismissed in limine.
Appeal dismissed.
N. SATYANATHAN
v.
K. SUBRAMANY AN AND OTHERS.
[VIVIAN BOSE, JAGANNADHADAS AND SINHA JJ.]
Representation of the People Act, 1951 (Act XLlll of 1951), s.
7( 4)-Appellant entered into agreel'T}ent. with Central Government
for conveying postal articles and mail bags through Motor Vehicle
Sel'vtce on certain remuneration-Appellant whether disqualified for
election to the House of People under s. 7(d) of .the Act.
The question for determination in this appeal was whether the
appellant was disqualified under s. 7(d) of the Representation of the
People Act, 1951 for election to the House of the People.
The material portion of s. 7(d) of the Act reads as follows:
"A person shall be disqualified for being chosen as and for
being, a member of either House of Parliament .... (b) if, whether by himself or by any person or body of persons in trust for
him or for his benefir or on his account, he has any share or interest
in a contract for .... the performance of any service undertaken
by the appropriate Government".
The appellant (a contractor) had entered into an agreement with
the Central Government. The relevant portion of the said agreement was as follows: -
"The contractor has offered to contract with the GovernorGeneral for the provision of a MoMr Vehicle Service for the transit
conveyance of all postal articles and mail bags from December 15,
1949 to December 14, 1952 and the Governor-General has accepted
the offer.
"The Government agrees to pay to the contractor Rs. 200 per
month during the subsistence of the agreement 'as his remuneration
for service to be rendered by him".
Held that on the face of it the agreement was between two competent parties with their free consent, and there was a lawful cash
consideration for it. The Appellant entered into the agreement with
his eyes open knowing full well his rights and liabilities under the
same.
Si11/za J
1955
March 29