A Magistrate cannot issue process for rape when the complaint contains no such allegation.

The complainant filed a private complaint concerning alleged extra-marital relationships between his wife and several men, including the applicant.

After examining the complainant, the Magistrate directed an inquiry under Section 202 of the Code of Criminal Procedure, 1973. On considering the inquiry report and statements, the Magistrate issued process against the applicant and others under Sections 497 and 376 of the Indian Penal Code, 1860, by order dated 19 April 2018. The applicant sought quashing of the complaint and process order under Section 482 CrPC

The High Court noted that the complaint contained no averment alleging an offence under Section 376 IPC.

Whether the Magistrate could issue process against the applicant under Section 497 IPC after that provision had been declared unconstitutional

Whether the Magistrate exceeded jurisdiction by issuing process under Section 376 IPC when that offence had not been alleged in the complaint

Section 482 CrPC preserves the High Court’s inherent power to prevent abuse of process and secure the ends of justice. Section 202(1) CrPC permits a Magistrate, after receiving a complaint, to direct an inquiry to determine whether sufficient grounds exist to proceed; the inquiry does not, on the reasoning in this judgment, justify taking cognizance of an offence unsupported by allegations in the complaint.

In Joseph Shine v. Union of India, (2019) 3 SCC 39, the Supreme Court declared Section 497 IPC unconstitutional.

The Court found no allegation in the complaint supporting an offence under Section 376 IPC. It held that the Magistrate should not have travelled beyond the complaint to issue process for that offence, particularly where the allegations concerned the wife’s alleged extra-marital relationships and the wife herself had made no such allegation against the applicant.

As to Section 497 IPC, the Court relied on Joseph Shine and held that the process order, which included that offence, could not stand.

It therefore granted relief under Section 482 CrPC.

The complaint in Criminal Case No. 22497 of 2018 and the Magistrate’s order dated 19 April 2018 were quashed and set aside qua the applicant; the Rule was made absolute.