- (1.) HEARD learned counsel for the parties. The detenue is produced today before this Court.
(2.) BY means of this writ petition, pe titioner Sher Ali has sought writ in the na ture of Habeas Corpus for his production in the Court and has further prayed for setting him at liberty forthwith. Brief facts of the case are that pe titioner Sher Ali appears to be one of the accused in Case Crime No. 3979 of 2007, relating to offences punishable under Sec tion 302 / 34 of I. P. C. , registered with po lice station Kashipur, District Udham Singh Nagar. Complainant Idrish Ahmad lodged the first information report stating that his brother Illiyas was shot dead by one Danish @ Manni, Paras Rana and two others. The petitioner is not named in the first information report as is appar ent from the copy of the first information report, which is Annexure -1 to the writ petition. The Order dated 26th of Octo ber 2007, passed by learned Single Judge of this Court, on Bail Application No. 1203 of 2007 (a copy of which is Annexure - 2 to the writ petition) shows that applicant Sher AH, who was arrested in connection with aforesaid crime, was di rected to be released on bail on execut ing a personal bond and furnishing two sureties each of the like amount to the satisfaction of the Chief Judicial Magis trate, Udham Singh Nagar. Contention of learned counsel for the petitioner is that after the order direct ing the petitioner to be released on bail passed by this Court, a new Section 303 of I. P. C. was added to the crime, and the petitioner was not released in pursuance to the bail order granted by this Court.
(3.) ATTENTION of this Court is drawn to the case of Mithoo Vs. State of Punjab; A. I. R. 1983 Supreme Court 473, wherein constitutional Bench of the Apex Court has declared Section 303 of I. P. C. , as ultra vires and unconstitutional. The effect of said judgment is that after the enforce ment of Constitution of India, and particu larly, after the aforesaid judgment passed by the Supreme Court, the courts are bound to ignore the law, which has been declared unconstitutional by the Apex Court, as if it never existed. Having heard learned counsel for the parties and after going through the papers on record, we are of the view that the detention of the petitioner (accused) in respect of the offence punishable un der Section 303 of I. PC. , which has al ready been declared unconstitutional by the Supreme Court, is illegal that too af ter adding the same to the crime, after the bail order is granted by this Court.;