- (1.) Crl. M.P. Nos. 18711 and 18712/2012 have been filed in Criminal Appeal No. 1383/2007 and Crl. M.P. No. 18713/2012 has been filed in Criminal Appeal No. 889/2007. These applications have been filed by the Union of India. Review Petitions (Crl.) No. 426 and 417/2011 have been preferred in Crl.A. No. 889/2007 and Crl.A. No. 1383/2007 respectively by the State of Assam for review of the decision in the criminal appeals mentioned hereinabove. Initially the applications seeking permission to file an application for review by the Union of India were not registered on the ground that the Union of India was not a party to the criminal appeals. The said order was challenged in appeal i.e. Crl. M.P. No. 22124/2011 in Crl.A. No. 1383/2007 & Crl. M.P. No. 22122/2011 in Crl.A. No. 889/2007 wherein the learned Chamber Judge on 9/12/2011 had passed the following order. "Mr. Mohan Parasaran, learned Additional Solicitor General, prays for withdrawal of Criminal Miscellaneous Petition Nos. 22124/2011 and 22122/2011 with liberty to the applicant Union of India to renew the applications, if necessary, later on. Criminal Miscellaneous Petition Nos. 22124 of 2011 and 22122 of 2011 are dismissed as withdrawn with liberty as aforesaid."
(2.) On the basis of the aforesaid observation, the present applications for clarification along with applications for impleadment have been filed by the Union of India. The applications for impleadment have already been allowed in both the appeals. When these applications were listed on 2/5/2014, the following order came to be passed: "Crl. M.P. No. 18713/2012 in Crl.A. No. 889/07: This is an application for clarification of the judgment passed in Criminal Appeal No. 889 of 2007 on 03.02.2011. It is submitted by Mr. Mohan Parasaran learned Solicitor General appearing for Union of India that the Division Bench has opined with regard to the constitutional validity of Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 by reading down the provisions. He has referred to the paragraph which reads as under: "In our opinion, Section 3(5) cannot be read literally otherwise it will violate Article 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence." The learned Counsel appearing for the Respondent, namely, Arup Bhuyan, very fairly stated that he has nothing to do with the clarification as long as the judgment of acquittal is not disturbed. Mr. Parasaran conceded that he does not intend to question the acquittal as the Union of India is only concerned with the interpretation placed by this Court to save the constitutional validity of the provisions by adopting the doctrine of reading down in the absence of the Union of India. Ordinarily we would have proceeded to deal with the matter but Mr. Jaideep Gupta, learned senior Counsel appearing for the State of Assam, submitted that he has filed an application for review of the judgment on the ground that the interpretation of Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 has adversely affected the interpretation of Section- 10 of the Unlawful Activities (Prevention) Act, 1967. In view of the aforesaid, it would be appropriate if this application is listed along with the application for review. List Crl. M.P. No. 18711-18712 of 2012 in Crl.A. No. 1383/07 along with Crl. M.P. No. 18713 of 2012 in Crl. Appeal No. 889 of 2007."
(3.) Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, has submitted that in the case of Arup Bhuyan v. State of Assam, 2011 3 SCC 377, this Court has read down the provision to the detriment of the interest of the Union of India when it was not a party before it. He has also invited our attention to the decision in Sri Indra Das v. State of Assam, 2011 3 SCC 380. In Arup Bhuyan's case as well as in the case Sri Indra Das, the two-Judge Bench has referred to many authorities of Supreme Court of United States of America and thereafter quoted a passage from Kedar Nath v. State of Bihar, 1962 AIR(SC) 955 and relied on State of Kerala v. Raneef, 2011 1 SCC 784 and eventually opined thus: "We may also consider the legal position, as it should emerge, assuming that the main Section 124A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, it is not open to this Court to construe the section is such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in the case of R.M.D. Chamarbaugwalla v. The Union of India has examined in detail the several decisions of this Court, as also of the Courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between a definition of the expression 'Prize Competitions' as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.";