STATE OF BIHAR Vs. M HOMI

JUDGEMENT

(1.) 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 17th October 1946:

(2.) From the terms of the surety bond quoted above it would appear that 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." 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.

(3.) 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 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.