O R D E R

Dated this the 9th day of August, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure with the following prayer:

“Call for the records pertaining to Annexure A5 complaint on the files of the Judicial First Class Magistrate Court-I, Tirur and Annexure A6 order dated 06.12.2021 in CMP No.3445/2021 taking cognizance, now pending as C.C.No.1402/2021 on the files of the Hon’ble Judicial First Class Magistrate Court-I, Tirur and quash the same with all its consequential proceedings for the ends of justice.”

2. Heard the learned counsel for the petitioner, the learned counsel for the complainant/2nd respondent and the learned Public Prosecutor in detail. Perused the relevant documents.

3. Coming to the genesis of the prosecution case, crime No.144/2021 of Kadampuzha Police Station was registered on 11.06.2021, on the allegation that the accused/petitioner herein committed offences punishable under Sections 377 and 498A of IPC. Annexure A1 is the copy of FIR. Annexure A1 was investigated and thereby Annexure A2 report filed, stating that the case was false. Aggrieved by Annexure A2 final report, the complainant lodged Annexure A5 protest complaint. While proceeding with the protest complaint, the learned Magistrate recorded the statements of the complainant as well as four other witnesses. Thereafter, the learned Magistrate passed Annexure A6 order dated 06.12.2021, whereby cognizance taken for the offences punishable under Sections 377 and

498A of IPC and numbered the case as C.C.No.1402/2022.

4. It is at this juncture, the present petition has moved to quash the entire proceedings by the accused. At the outset, the learned counsel for the petitioner submitted that offence under Section 377 of IPC alleged to be committed by the accused against the defacto complainant, who is none other than his wife, is not maintainable. Therefore, cognizance taken by the learned Magistrate, as per Annexure A6 order, for the said offence is illegal. In this connection, he has placed decision of this Court in Vinod Thankarajan and Another v. State of Kerala and Others reported in 2020(1) KHC 852, wherein this Court considered whether oral sex at the instance of the male accused on a female victim would come within the purview of Section 375 of IPC with effect from 03.02.2013 and held as under:

“6. A reading of Sec.375 as per the amended process would make it clear that forcible acts of oral sex that may be done by a male accused on a female victim would come now within the ambit of Sec.375 of the IPC with effect from 03-02-2013. Therefore, where the alleged acts of oral sex are said to have been committed by a male accused on a female victim if allegedly done on or after 03-02-2013, then it would come within the ambit of Sec.375 of the IPC and not within Sec.377 of the IPC. Exception No.2 of Sec.375 stipulates that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. Of course, the Apex Court has declared and held in the celebrated decision in Independent Thought v. Union of India & another [2017(10) SCC 800]., that the said outer age limit of 15 contained in Exception No.2 of Sec.375 of the IPC will stand enhanced as 18 years of age in view of the provisions contained in the POCSO Act and the amended provisions of the IPC and that the said judgment will be applicable only on a prospective basis from the date of the said judgment. The abovesaid dictum laid down by this Court in State of Kerala v. Kundumkara Govindan (1968 KLJ 485) has been affirmed by the Constitution Bench of the Apex Court in the celebrated case in Navtej Singh Johar & others v. Union of India [(2018) 10 SCC 1]. The upshot of the above discussion is that as the act of oral sex which is said to have been forcibly done by the male accused on the female victim on or after 03-02-2013, it will come within the ambit of Sec.375 of the IPC and at the same time if the ma