WALI MUHAMMAD KHAN, J: - Muhammad Ilyas, petitioner herein, through the instant petition has invoked the extraordinary inherent jurisdiction of this Court under section 561-A, Cr.P.C. For the grant of benefit under section 382-B, Cr.P.C. Which was not extended to him by the learned Sessions Judge/Special Judge, Bannu while imposing sentence of two years' R.I. And a fine of Rs.500 upon him under section 5 of the Explosive Substances Act, 1908.
2. The learned counsel for the petitioner argued with vehemence that the provisions of section 382- B, Cr P.C. Have been made mandatory by the Code of Criminal Procedure (Second Amendment)
Ordinance (71 of 1979) whereby the word "shall" was substituted for the word "may" from which the intention of the legislature is manifest and the Courts are bound to take it into consideration the period, if any, during which such accused was detained in custody for such offence. According to him the omission on the part of the learned convicting Court is a clear violation of law and is liable to rectification under the inherent powers of this Court under section 561-A, Cr.P.C. The learned State counsel, on the other hand, submitted that the failure on the part of the petitioner to prefer appeal or revision against the impugned judgment of the trial Court is a hindrance in the way of the petitioner to seek redress under the extraordinary powers of this Court.
3. We have given our anxious consideration to the arguments of the learned counsel on either side.
In order to appreciate the instant controversy it is worthwhile to reproduce the provisions of sections 382-B and 561-A, Cr.P.C. As under: "Section 382-B. Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence.
Section 561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
4. The provisions of section 382-B, Cr.P.C. Do not admit of any ambiguity. It contains a clear and unequivocal direction to the Criminal Courts that they shall take into consideration the period, if any, during which the accused was detained in custody for such offence while deciding to pass a sentence of imprisonment on such accused. No doubt they are not bound to grant the concession of the period during which the accused remained in custody as an under-trial but they have to take the same into consideration. This being obligatory for them, they are duty bound to say so in their judgments for the satisfaction of the accused that the provisions of the law were duly considered and either extended or denied to them. Their failure to mention the same in their judgments leaves it open to two interpretation, the one that the Court has, after consideration, declined to extend the same and on the other that the Court did not at all take the same in4o consideration. In such circumstances the accused can justifiably say that the compliance with the provisions of section 382-B, Cr.P.C. Has not been made. It has been noticed that the Courts awarding the sentence of imprisonment normally omit to make a reference in their judgments to the provisions of section 382-B, Cr.P.C. With the result that the accused, so convicted, are obliged to have recourse to the higher Courts after lapse of considerable time. We, therefore, direct that the Courts while passing the sentence of imprisonment must state in the order/judgment whether the benefit of section 382-B, Cr.P.C. Is extended to the accused or not and if it feels that the accused does not deserve the said concession they must record reasons, albeit brief for, refusing to extend the benefit of the said section.
5. Reverting to the objection of the learned State counsel that the provisions of section 561-A, Cr.P.C.
Are not attracted in the instant case, suffice it to say that through the said provisions the High Court is invested with unlimited powers to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. It is obvious that the said provisions are in addition to the other provisions of the Code and are not limited in any way. It is an established principle of law that omission to give effect to a statutory requirement has to be remedied in the I exercise of inherent powers and no one are to suffer for the act of the Court. We are, therefore, of the considered opinion that the omission on the part of the Court is not only non-compliance with the mandatory provisions of law but has resulted in grave miscarriage of justice and this Court can, in the exercise of its inherent powers under section 561-A, Cr.P.C., correct the error made by the trial Court.
6. In the instant case the petitioner was arrested on 7-9-1985 and remained in custody for such offence as an under-trial for more than a year. This being a substantial period was prima facie not considered by the trial Court, probably because the accused was on bail and the Court might have been under the impression that he was released on bail soon after his arrest. We feel that he is legally entitled to the benefit of section 382-B, Cr.P.C. Which is hereby extended to him. The petition is accordingly accepted. It is directed that the jail authorities may be informed accordingly.