ORDER : P. Devadass, J. 1. Petition for bail. 2. Offences alleged are under Section 376, 417 and 506(i) of IPC. 3. According to the learned counsel for the petitioner, petitioner has been implicated in this case. Even on the allegations in the FIR, an offence under Section 376 IPC is not attracted. 4. The learned counsel for the petitioner contended that the de facto complainant is a Post Graduate. She is 25 years old. She is two years older than the petitioner. Her only intention is that the petitioner should marry her. In order to marry him, she had preferred a false complaint. 5. The learned counsel for the petitioner further contended that she is not an illiterate. She is highly educated. She knows the consequence of the alleged act viz., sexual intercourse. In such circumstances, an offence under Section 376 IPC is not attracted. 6. In support of his submissions, the learned counsel for the petitioner cited the following decisions: (1) Sekar vs. State by Inspector of Police, Thrivannamalai Rural, (1995 (1) MWN (Cr.) 124 (2) Uday vs. State of Karnataka, (2003) 4 SCC 46 (3) Deelip Singh alias Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88 (4) Kaini Rajan vs. State of Kerala, 2013 SAR (Criminal) 1152 (5) Deepak Gulati vs. State of Haryana, (2013) 7 SC 675 (6) Patil vs. State of Maharashtra and another [A.B. Application No. 1618 of 2015 dated 10.3.2016] (Bombay) (7) Shri Kunal Mandaliya vs. The State of Maharashtra [Criminal W.P. No. 1787 of 2016 dated 19.12.2016] (Bombay) (8) Akshay Manoj jaisinghani vs. The State of Maharashtra [A.B. Application No. 2221 of 2016 dated 9.1.2017] (Bombay) 7. The learned counsel for the petitioner also submits that the petitioner has prima facie case in his favour. He is in jail for a considerable period. He is a Government servant. He is also doing part-time B.E. in a College. He has fixed place of residence. He will not abscond. Now, statement of the complainant has been recorded. Her Medical examination is also over. In such circumstances, his further detention in jail is not necessary. Thus, he may be granted bail. 8. On the other hand, the learned Government Advocate (Crl. side) submits that petitioner had deceived the de facto complainant. He gave her false promise and raped her. Investigation pending. 9. Her Medical examination is also over. In such circumstances, his further detention in jail is not necessary. Thus, he may be granted bail. 8. On the other hand, the learned Government Advocate (Crl. side) submits that petitioner had deceived the de facto complainant. He gave her false promise and raped her. Investigation pending. 9. I have anxiously considered the rival submissions, perused the Case-Diary and the materials on record. 10. Now the question is whether in the facts and circumstances of this case the petitioner could be granted bail. 11. Petitioner belongs to a Village in Omalur Taluk in Salem District. He is 23 years old. He is a Diploma Engineer. He is employed in Tamilnadu Electricity Board. He is a bachelor. De facto complainant is 25 years old. She is a B.Ed. graduate. She also belongs to a Village in Omalur Taluk in Salem District. 12. On 23.1.2017, she lodged complaint with All Women Police Station, Omalur. Based on her complaint a case in Cr. No. 1 of 2017 under Sections 417, 376 and 506(i) of IPC has been registered. 13. In this connection, the petitioner has been arrested on 25.1.2017 and he has been remanded to judicial custody on 26.1.2017. Since then, he is in jail. 14. In the FIR, she mainly alleges as under: When she travelled in a bus to go to Omalur, she met the petitioner. They become lovers. They were so for about 6 years. One year ago, on a day, when she was alone in her grandmother's house, he came, called her for sexual intercourse. She agreed to have it only after marriage. However, he told her that as he is going to marry her, they can have physical relationship. Inspite of her disinclination, he had sexual intercourse with her. He had sexual intercourse with her subsequently also. He had also captured their compromising posture in his Cellphone and threatening to show it to others and upload it in internet, he had sexual intercourse with her for 15 times. She became pregnant. She asked him to marry her. He asked her to wait for two years. He also asked her to abort the pregnancy. She refused. Yet, he took her to Karpagam Medicals and gave her some pills. Her pregnancy got terminated. Later, he stopped meeting her. Now he is attempting to marry another girl. On 28.12.2016, she asked him. She asked him to marry her. He asked her to wait for two years. He also asked her to abort the pregnancy. She refused. Yet, he took her to Karpagam Medicals and gave her some pills. Her pregnancy got terminated. Later, he stopped meeting her. Now he is attempting to marry another girl. On 28.12.2016, she asked him. He told her brides have come with a dowry of 100 sovereigns of jewels and he also threatened to kill her if she reveals their physical relationship to others and refused to marry her. 15. The offence of rape is defined in Section 375 IPC. Now, it is re-named as sexual offence. It is punishable under Section 376 IPC. It requires sexual intercourse by a man with a woman. It is also explained that penetration is sufficient to constitute sexual intercourse. The sexual intercourse must be against her will or without her consent or her consent has been obtained putting her under duress or threat. 16. When the woman is a minor, even if she gives consent, it is immaterial. Still it will be rape. If she is adult and consents for sexual intercourse, it will be consensual sex. It will not be rape. If her consent has been obtained against her will it will amount to rape. It will arise when her consent has been obtained by giving her some misrepresentation or she gave her consent on misconception of fact. The consent so obtained is vitiated and tainted. 17. To know about consent given on misconception of facts, we shall refer to the first part of Section 90 IPC. It runs as under: "90. Consent known to be given under fear or misconception.- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception" 18. In this regard in Kaini Rajan vs. State of Kerala, 2013 SAR(Cri) 1152 the Hon'ble Supreme Court held as under: "12. In this regard in Kaini Rajan vs. State of Kerala, 2013 SAR(Cri) 1152 the Hon'ble Supreme Court held as under: "12. Section 375 IPC defines the expression rape, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression against her will means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression consent. Section 90, though, does not define consent, but describes what is not consent. Consent, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See State vs. Mango Ram, (2000) 7 SCC 224 ]" 19. In Jayanthi Ram Panda vs. State of West Bengal, 1984 CrLJ 1535 (Calcutta) it was held that when the girl was 18 years old and had consented for sexual intercourse on the false promise of marrying her, it will not attract Section 376 IPC. 20. In Hari Majhi vs. State, 1990 CrLJ 650 (Calcutta) when an adult woman agrees for sexual intercourse as the accused had promised to marry her and there were frequent consensual intercourse between them for more than a year till she became pregnant, it was held that she was a consenting party for sexual intercourse and it would not amount to rape. 21. In Sekar vs. Inspector of Police, Thiruvannamalai Rural (1995 (1) MWN (Cr.) 124) the woman was above 18 years. 21. In Sekar vs. Inspector of Police, Thiruvannamalai Rural (1995 (1) MWN (Cr.) 124) the woman was above 18 years. The accused had sexual intercourse with her on promising to marry her. It continued subsequently also. She became pregnant. Later, he had refused to marry her. Prosecution contended that she gave consent on misconception of fact that he will marry her. The defence contended that she was a consenting-party for sexual partnership. It was held that it is consensual sex and acquitted the accused. 22. In Uday vs. State of Karnataka, (2003) 4 SCC 46 the woman was 19 years old. Promising to marry her, the accused had sexual intercourse with her and it continued subsequently for 15 to 20 times. She became pregnant. It was known to her parents. When they demanded him to marry her, he refused. He was prosecuted under Section 376 IPC. 23. The Hon'ble Supreme Court examined the question whether she consented for sexual intercourse on misconception of fact or it is a voluntary act, whether, it is a case of consensual sex. 24. In the said case the Hon'ble Supreme Court observed as under: "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S. 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her." 25. S. 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her." 25. The Hon'ble Supreme Court held that when the accused knows that he is giving a false promise, at the very inception he has no intention to marry her at all, however, the woman believed his promise to be true in that belief she has consented for sexual intercourse, thus, she gave her consent on misconception of fact and in such circumstances it will amount to rape. 26. In Deelip Singh @ Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88 there was promise of marriage by the accused and they had sexual intercourse and she became pregnant and he refused to marry her. The Hon'ble Supreme Court reiterated its earlier view in Uday (supra) and held that she had consented for sexual intercourse and it will not amount to rape. 27. In Kaini Rajan vs. State of Kerala, 2013 SAR(Cri) 1152 the accused had sexual intercourse with an adult woman stating that he will marry her, it continued subsequently for more than one occasion. Later she gave birth to a boy. He was prosecuted under Section 376 IPC. 28. In the said case the Hon'ble Supreme Court held that they have previous acquittance and she came to the decision to have sexual intercourse only after being convinced that he marry her and she was fully aware of the moral quality of the act and the inherent risk involved in it and that she considered the pros and cons of the act, thus, it would not be rape under Section 376 IPC. {Also see Deepak Gulati vs. State of Haryana, 2013 (7) SCC 675 } 29. In Patil vs. State of Maharashtra (Anticipatory bail Application No. 1618 of 2016, order dated 10.3.2016), the accused and the prosecutrix are adults. They are lovers. He promised to marry her. He demanded sexual relationship from her. She refused. Later, they had physical relationship. Subsequently, she became pregnant. He told her to abort. It was forcibly aborted. Thereafter, he refused to marry her. He was prosecuted for offences under Sections 323, 376 and 506(i) of IPC. He contended that the physical relationship was out of their mutual consent. He demanded sexual relationship from her. She refused. Later, they had physical relationship. Subsequently, she became pregnant. He told her to abort. It was forcibly aborted. Thereafter, he refused to marry her. He was prosecuted for offences under Sections 323, 376 and 506(i) of IPC. He contended that the physical relationship was out of their mutual consent. 30. In the said case the Bombay High Court held as under: "Perused the first information report and the statements. The age of the prosecutrix was 24 years when she gave first information report. It is her case that in the year 2015 she met the applicant and they fall in love with each other. It appears from the first information report that the prosecutrix met the applicant in the hotel at Solapur. They stayed in the hotels and they had sexual relationship. The withdrawal of the promise of marriage is the reason to file such complaint. However, considering the age of prosecutrix, I am inclined to grant pre-arrest bail to the applicant." 31. In Shri Kunal Mandaliya vs. State of Maharashtra (Crl. W.P. No. 1787 of 2016 order dated 19.12.2016), the woman was a Lecturer in a College. She become friendly with accused. He promised to marry her and they had sexual intercourse in a hotel. Such relationship continued subsequently also. Their marriage engagement was held. Marriage date was fixed. Dispute arose between both the families. The marriage proposal was broken. He refused to marry her. He was prosecuted for offences under Sections 376, 420, 323, 506(ii) IPC. 32. In the said case the Bombay High Court held as under: "6. Perused all the documents presented here. After going through the FIR, it is apparent that the petitioner and the victim were in love with each other nearly for four years and thereafter, they decided to marry. During this period, they had sexual intercourse on a number of occasions at various places and lodges. It is a fact that there was a promise by the petitioner to marry the complainant. However, it cannot be said in any manner that the promise to marry was a condition precedent for giving a free consent for sex before marriage. The prosecutrix at the time of filing the complaint was 30 years old and was nearly 25 to 26 years old when the first incident of sexual intercourse took place. However, it cannot be said in any manner that the promise to marry was a condition precedent for giving a free consent for sex before marriage. The prosecutrix at the time of filing the complaint was 30 years old and was nearly 25 to 26 years old when the first incident of sexual intercourse took place. Thus, she was aware of the consequences of keeping sexual relations with a man and she was also aware that there may be differences between two persons and they may find each other not compatible. The girl was highly educated and also 25 years old. Therefore, the consent cannot be said to have been obtained by fraud. I also rely on the order dated 12.3.2014 of this Court passed in Criminal ABA No. 27 of 2014 wherein a similar issue with identical facts was dealt with and it was held that under such circumstances, it is a conscious decision to keep sexual relations with a man and thus, to have physical relationship is a matter of choice of both the adult persons, it can hardly be said that the consent was obtained fraudulently. Therefore, there is no material against the accused to charge him under Section 376 of the Indian Penal Code. However, there are other allegations of intimidation, cheating and causing hurt and beating." 33. In Akshay Manoj jaisinghani vs. State of Maharashtra (Anticipatory Bail Application No. 2221/2016 order dated 9.1.2017) the accused was 21 years old. The woman was also 21 years old. They became friends. She gave him a gold chain, mobile phone, Laptop and clothes. He promised to marry her. They had sexual intercourse and subsequently, they had similar physical contact in various hotels. She became pregnant. He asked her to terminate the pregnancy. He gave her pills. However, it was not successful. Her medical check-up revealed that her pregnancy was not terminated. Later, he refused to marry her. He was prosecuted. It was contended that the sexual intercourse was consensual. 34. In the said case the Bombay High Court held as under: "6. Previously, in number of such matters, this Court has taken a specific view and has held that when a woman is major and educated and depending on facts on the case, she is supposed to be fully aware of the consequences of having sexual intercourse with a man before marriage. Previously, in number of such matters, this Court has taken a specific view and has held that when a woman is major and educated and depending on facts on the case, she is supposed to be fully aware of the consequences of having sexual intercourse with a man before marriage. In the event of consent obtained by fraud, inducement is a necessary ingredient. There should be some material on record to believe prima facie that the girl was induced by the accused to such an extent that she was ready to have sexual intercourse with him. Promise to marry cannot be said to be an inducement in these types of cases. However, the Courts now-a-days do come across registration of many cases of the offence of rape under Section 376 of the Indian Penal Code. If the act is repeatedly committed, then, Section 376(2)(N) is also invoked where the punishment is not less than 10 years. Thus, the facts i.e., the life and liberty of the accused in view of the gravity of the punishment on one hand and mental trauma, physical sufferings of the girl on the other hand, are required to be appropriately considered with balanced view." 35. In the light of the principles laid down in various cases, we now come to our case. 36. Petitioner is 23 years old. The de facto complainant is two years older than him. She is well educated. The learned Government Advocate submitted that there was no incriminating materials such as picture of the petitioner and the de facto complainant in a compromising position recorded in a Cellphone. She was fully aware of the consequences of the act viz., sexual intercourse. She knows the moral quality of the act to which she was engaged. In the facts and circumstances, her consent for physical contact cannot be said to be given on misconception of fact. The allegation of criminal intimidation has been made in the backdrop of her demand to him to marry her. Before the Court below it was mainly contended by the prosecution that her medical examination was not over. Now, it was over. 37. There is prima facie case in favour of the petitioner. We have taken this view for the limited purpose of his bail plea. 38. Petitioner is in jail for a considerable period. Before the Court below it was mainly contended by the prosecution that her medical examination was not over. Now, it was over. 37. There is prima facie case in favour of the petitioner. We have taken this view for the limited purpose of his bail plea. 38. Petitioner is in jail for a considerable period. The statement of the victim girl, her parents and other material witnesses were recorded. Now he cannot tamper the witnesses nor hamper the investigation. He has fixed place of residence. He has no previous cases. He has no bad antecedents. It is quite unlikely that he will abscond if let out on bail. 39. Considering all the above aspects, I am inclined to grant him bail. 40. Ordered as under: (i) Bail granted to the petitioner; (ii) There shall be two sureties, out of which one shall be related to him by blood and the petitioner shall execute a bond for Rs. 15,000/- (Rupees fifteen thousand only) each to the satisfaction of the learned Judicial Magistrate, Omalur, Salem District. (iii) Petitioner shall report before the respondent police on every Monday and Friday at 10.30 a.m. until further orders.