W. Comer Petheram, Kt., C.J.
1. In this case we think that the view taken by the Judicial Commissioner in the judgment given by him in the Special Court is right on both points. The first point which has been referred to us and upon which our opinion is required is, whether this matter is a criminal case within the meaning of Section 69 of the Lower Burma Courts Act. The learned Recorder thinks it is not a criminal case, but a civil one. The Judicial Commissioner thinks it is a criminal case, and, as I said just now, we agree with the Judicial Commissioner. The punishment which can be awarded under this section is a punishment for something which the person to be punished has done, and is not in any way an imprisonment to which he is subjected in order to compel him to do something in the future; and that brings the case within the definition of a criminal case which is to be found in the various cases which have been cited before us by Sir Griffith Evans, which were O'Shea v. O'Shea and Parnell L.R. 15 P.D. 59, In re Ashwin L.R. 25 Q.B.D. 271 In e Freston L.R. 11 Q.B.D. 545 Harris v. Ingram L.R. 13 Ch. D. 338 and Ex parts Marsden L.R. 2 Ch. D. 786. These cases show, as one would expect they would show, that where imprisonment is inflicted as a punishment for something done, the case in which it is inflicted is a criminal case. To hold anything else would be, in our opinion, to sacrifice the substance of the matter to a mere question of words; in other words, it would be to say that where a man is punished for an offence which he has committed it is to be taken as a civil matter when the Court which is authorized to inflict the punishment happens to be a Civil Court. That, as I said just now, would be to sacrifice the real intention of the Legislature to a mere form of words. We think, therefore, that the view taken by the Judicial Commissioner on the first point is correct.
2. That being so, the whole matter is before us, and we have to consider whether the sentence which has been awarded in this case was right. This case, to my mind, is identical in principle with the case of Rash Behari Roy v. Bhugwan Chunder Roy I.L.R. 17 Cal. 209. In that case, at page 220, I am reported to have said, 'it seems to me to come to this, that this case shows as clearly as anything can show how necessary it is that a law of this kind, the intention of which is to punish people, should be administered as the criminal law is administered; that is to say, specific offences should be charged against people, not technically specific in the sense of a specific form of indictment, but that the Judge and the insolvent and everyone else should know what offence the man is being tried for, and that the evidence should be directed to the proof of that offence, so that the accused person may be in a position to produce the evidence, if he has got any, to rebut the charge of that offence, and that the Judge who has to try the case should specifically find what offence the insolvent has become guilty of, and in his judgment, and in his order, and in the warrant it should appear what the man has done.' I think that these remarks are as applicable to the case which is before us now as they were applicable in that case, and I entirely adhere to-day to what I said then. The case before us shows how necessary it is that in cases of this kind these precautions should be adopted. In the present case the offences recited in the warrant are not the same offences as those of which the Recorder in his judgment, when he was a member of the Special Court, came to the conclusion that this person was guilty. He finds a different state of things, and he comes to the conclusion that this person was guilty of some other offence which is not any of those specifically mentioned in the warrant, as he does not now appear to think that he has been guilty of those offences. For the offence of which the learned Recorder would now convict him he has never been tried with any of the safeguards with which a criminal trial should be surrounded. There has never been anything like a charge formulated; there has never been anything like a finding of guilty of any particular offence, or of the person having been guilty of any series of acts which constituted any particular offence. But what is said is, that his explanation of his conduct is so unsatisfactory that it is impossible to suppose that he was not aware how the business of the firm was being carried on, and upon that a sentence of two years' imprisonment has been passed, without its being found what the particular transaction of the firm is with which he is found to be so implicated as to be guilty of this offence.
3. Under these circumstances we think that the learned Judicial Commissioner was right on both points; that a reference does lie to this Court upon the whole case; and that when the whole case comes to be looked into, it is apparent from the judgments themselves that this person has never been tried for the offence for which he has been punished in the sense in which a man has a right that his case should be tried before he is subjected to punishment. With these remarks the case will be sent back to the Special Court of Lower Burma.