In Re: Baluswamy

- ordern. krishnaswamy reddy, j.1. this is a reference by the district magistrate, ramanathapuram, under section 438, criminal procedure code, for setting aside the conviction and sentence imposed under section 279, indian penal code, by the sub-magistrate, srivilliputhur, in c.c. no. 4309 of 1968, on the ground that the sentence under section 279, indian penal code, cannot be sustained by virtue of section 71, indian penal code, as the accused has been convicted under section 338, indian penal code.2. this reference is quite unwarranted. section 279 and section 338, indian penal code, deal with separate and distinct offences. the gravamen of the charge under section 279, indian penal code, is rash and negligent driving on a public way, whereas the gravamen of the charge under section 338, indian penal code, is. causing grievous hurt by rash and negligent driving in any place. therefore, a person can be convicted for causing grievous hurt by rash and negligent driving and punished under section 338, indian penal code, and at the same time for rash and negilgent driving on a public place, he can also be separately punished under section 279, indian penal code. there is no illegality in the conviction and. sentence passed by the magistrate.3. this reference is rejected.