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.

3. 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.

4. 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.

5. 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.

6. 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.

7. In the counter affidavit filed by R. K. S. Pharswan, Station House Officer, Police Station Kashipur, District Udham Singh Nagar it is nowhere been stated that when petitioner was convicted and sentenced to imprisonment for life or to death and in respect of which crime number. As such, the detention of the detenue in respect of offence punishable under Section 303 of I. P. C. appears to be illegal.

8. However, we cannot direct the re lease of the petitioner Sher Ali forthwith, as it is not mentioned in the writ petition whether in pursuance of the bail order dated 26th of October 2007, passed by this Court on Bail Application No. 1203 of 2007, relating to Crime No. 3979 of 2007, Police Station Kashipur, bail bonds were submitted in respect of offences pun ishable under Section 302 / 34 of I. P. C. , or not, and whether, any release order was issued thereafter by the Magistrate, or not?

9. In the above circumstances, this writ petition is disposed of with the obser vation that if the petitioner Sher Ali files bail bonds before the Chief Judicial Mag istrate concerned and the release order is sent to the jail, in respect of the offences punishable under Section 302/34 of I. P. C. , relating to Crime No. 3979 of 2007, as di rected vide order dated 26-10-2007, he shall be released on bail, ignoring the added offence punishable under Section 303 of I. P. C. , provided he is not wanted in connection with any other crime.

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