IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Habeas Corpus Writ Petition No. 21 of 2007 Sher Ali S/o Mahbudul Hasan Presently imprisoned in Sub Jail Haldwani District Nainital in Case Crime No. 3979 / 2007 Under Sections 302 / 34, 303 I.P.C. P.S. Kashipur, District Udham Singh Nagar. Through Salma Ali Wife of Sher Ali Resident of Mohalla, Singhan, Police Station Kashipur, District Udham Singh Nagar as next friend …………. Petitioner Versus 1. State of Uttarakhand through Law Secretary, Dehradun. 2. District Magistrate Udham Singh Nagar 3. S.S.P. Nainital. 4. Superintendent Sub Jail Haldwani, District Nainital. ……… Respondents Mr. Rajendra Kotiyal and Mr. Sandeep Kothari, Advocates For the petitioner. Mr. G.S. Sandhu, Government Advocate for the State. Hon’ble Prafulla V. Pant, J. Hon’ble Dharam Veer, J. Heard learned counsel for the parties. The detenue is produced today before this Court. 2) By means of this writ petition, petitioner Sher Ali has sought writ in the nature 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 petitioner Sher Ali appears to be one of the accused in Case Crime No. 3979 of 2007, relating to offences punishable under Section 302 / 34 of I.P.C., registered with police station Kashipur, District Udham Singh Nagar. Complainant Idrish Ahmad lodged the first information report stating that his brother Iiliyas was shot dead by one Danish @ Manni, Paras Rana and two others. The petitioner is not named in the first information report as is apparent from the copy of the first information report, which is Annexure –1 to the writ petition. The Order dated 26th of October 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 Ali, who was arrested in connection with aforesaid crime, was directed to be released on bail on executing a personal bond and furnishing two sureties each of the like amount to the satisfaction of the Chief Judicial Magistrate, Udham Singh Nagar. 4) Contention of learned counsel for the petitioner is that after the order directing 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 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 enforcement of Constitution of India, and particularly, 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 under Section 303 of I.P.C. which has already been declared unconstitutional by the Supreme Court, is illegal that too after 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 release 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 punishable 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 observation that if the petitioner Sher Ali files bail bonds before the Chief Judicial Magistrate 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 directed 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. (Dharam Veer, J.) (Prafulla C. Pant, J.) 24.03.2008 24.03.2008 H.Negi