1 1.ba-1218-11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION jmi CRIMINAL APPLICATION NO.1218 OF 2011. Smt. Parvati Shamsunder Mavale. .. Applicant. v/s. The State of Maharashtra. ..Respondent. .... Mr. P.D. Dalvi, for Applicant. Mrs. S.D. Shinde, APP, for Respondent-State. .... CORAM: R. C. CHAVAN, J. DATED : 18th AUGUST, 2011. P.C.: 1. This is an application for bail by 60 years old caretaker in an Institution where mentally retarded, deaf and dumb girls were housed. There is a serious allegation about sexual assaults on 4 to 5 of those girls over a considerable period of time. Though the investigation is completed and charge sheet is filed, the learned APP submits that the further investigation is still going on. The learned Counsel for applicant states that the charge sheet against the applicant who is arrayed as accused no.10 is filed showing involvement in commission of offences punishable under section 109, 114 of the Indian Penal Code and not for involvement in any substantive offence. It is pointed out from the statements of 2 1.ba-1218-11 those deaf, dumb or mentally retarded children that the present applicant was in the Institution. One of the inmates has stated that the applicant used to beat up and bang her head on the wall. The inmate also stated that the applicant used to consume tobacco and force the inmate to consume it. 2. The learned Counsel submits that there is nothing to show that the applicant was involved in beating or abetting in commission of any sexual assaults. He submitted that since requirements of section 107 of the Indian Penal Code are not satisfied, there is no question of offences punishable under sections 109 and 114 being attributed to applicant. For this purpose, my attention was drawn to the Judgment of Hon’ble Supreme Court in the case of Saju vs. State of Kerala, AIR 2001 SC 175. In that case, the Hon’ble Supreme Court has considered the question of conspiracy as a part of abetment. There can be no doubt that there could be abetment by conspiracy. But it is not the only ingredient of abetment and aiding by any act or illegal ommission also amounts to abetment. In this case, if the applicant was a caretaker of the helpless inmates in the home and if any sexual assault took place, the complicity of the applicant in commission of offence by neglecting to protect her charges cannot lost sight of. In fact whether as caretaker or even as a bystander, a person would be guilty of illegal omission, if he 3 1.ba-1218-11 fails to prevent such assaults on helpless deaf, dumb or mentally retarded children. 3. The learned Counsel for the Applicant drew my attention to an order of this Court passed in Criminal Application No. 1006 of 2011 where bail has been granted to one Surekha Ramchandra Karanjule, the wife of the principal accused, who was the part of the management of the institution. The learned Counsel submitted that this Court had observed that the role attributed to the applicant therein appeared to be rather passive. I am afraid that this cannot be a precedent. The applicant permitted various wrongs to take place and did not protest or attempt to prevent the same, while discharging the duty of looking after mentally retarded or deaf or dumb girls, such passivity would amount to illegal omission. Therefore, merely because the applicant has not been shown to have assaulted the victims, the applicant cannot be granted bail. In any case, since further investigation is going on, and the investigating officer may also find out as to whether the applicant was present when the assaults on the victims took place, the applicant is not entitled to bail. The application is accordingly rejected. (R. C. CHAVAN, J.)