Holding

The Supreme Court held that the High Court's stay of proceedings was unjustified and directed that the trial against all accused proceed without prejudice, emphasizing the protection of dignity and justice.

Summary

The case arose from an FIR registered under multiple IPC sections and the Witch (Daain) Act after a woman was accused of witchcraft, physically assaulted, verbally abused and publicly disrobed along with another woman. Thirteen persons were named; initially only one was sent to trial, but the Additional Chief Judicial Magistrate later ordered cognizance against all accused. The accused filed a criminal miscellaneous petition under CrPC s.482 seeking quash of the cognizance, and the High Court stayed the proceedings, prompting the victim to approach the Supreme Court. The Supreme Court examined whether the stay was justified, emphasizing the constitutional guarantee of dignity under Art. 21 and the State’s duty to protect women from such violations. Finding the stay unjustified and noting the withdrawal of the petition, the Court ordered that the trial against all accused proceed on a day‑to‑day basis, reaffirming the need for equality and justice.

Issues considered

The propriety of the High Court's stay of criminal proceedings against the accused under CrPC s.482.
Whether the petition for quashing cognizance should be entertained after its withdrawal.
The obligation of the State to protect the dignity and rights of women under Art. 21, 14, 15 and 51A of the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 482
Indian Penal Code, 1860s. 149, s. 323, s. 341, s. 354, s. 354B, s. 379, s. 504, s. 506
Witch (Daain) Acts. 3, s. 4

Headnote

Issue for Consideration The victim was subjected to grave accusations and was also disrobed and assaulted in public. The Court take this as an opportunity to refer and reaffirm the commitment to the ideals of equality and justice for all. Headnotes† Penal Code, 1860 – ss.341, 323, – Witch (Daain) Act – ss.3 and 4 – Victim was accused of witchcraft – She abused physically & verbally and thereafter disrobed – FIR was registered against 13 accused persons – Trial Court took cognizance – Accused persons sought quashing of FIR

Subjects

WitchcraftDisrobingAssaultPhysical abuseVerbal abuseDignityHuman RightsRight to live with human dignityFundamental dutiesSuperstitionsUnfounded beliefsProtection of womenExploitation

Judgment

[2024] 12 S.C.R. 1122 : 2024 INSC 1008

Rajeev Kumar Upadhyay
v.
Srikant Upadhyay & Ors.
(Criminal Appeal No. 4831 of 2024)
19 December 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]

Issue for Consideration
The victim was subjected to grave accusations and was also
disrobed and assaulted in public. The Court take this as an
opportunity to refer and reaffirm the commitment to the ideals of
equality and justice for all.

Headnotes†
Penal Code, 1860 – ss.341, 323, 354, 354B, 379, 504, 506,
149 – Witch (Daain) Act – ss.3 and 4 – Victim was accused of
witchcraft – She abused physically & verbally and thereafter
disrobed – FIR was registered against 13 accused persons –
Trial Court took cognizance – Accused persons sought
quashing of FIR u/s.482 CrPC – The High Court stayed the
proceedings during pendency of the said petition – Complainant
aggrieved by the said order approached the Supreme Court:
Held: During the hearing, it was informed that petition seeking
quashing of the cognizance was withdrawn – This case does not
fall under 'ordinary circumstances’, the FIR, shows that the victim,
whose name is redacted for the purposes of maintaining the privacy
of the said individual, was subjected to grave accusations and also
disrobed and assaulted in public, which undoubtedly is an affront
to her dignity – Acts committed have shaken the conscience of
the Court – Even though the Criminal Miscellaneous petition now
stands withdrawn, this Court is aghast as to how the High Court,
in its wisdom, saw it fit to grant a stay against proceedings qua
the accused persons – A Court granting a stay of proceedings is
not to grant a stay in a mechanical manner – The sum total of
circumstances both for and against need to be examined to check
as to whether a prima facie case for stay is made out or not, or in
other words, whether the non-grant of stay is to somehow prejudice

*Author
[2024] 12 S.C.R. 1123

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

the party, etc. – Authorities showed insensitivity – The FIR, records
that the authorities did not heed the complainant’s request for the
registration of an FIR and that recourse had to be taken to Section
156(3) of CrPC – A further peculiar situation came to be when
out of the 13 accused persons, only one person, whose name
incidentally did not feature directly as having acted against the
victims physically or verbally, was sent up for trial – The chargesheet
did not disclose any reason as to why the investigating authorities
adopted such a course of action – However, ACJM found it fit to
send all accused persons to trial, taking the opposite view as put
forth in the chargesheet – The State also did not chose to assail
the non-speaking order of the High Court granting stay in favour of
the accused – There is a need to hold ideals of equality and justice
for all – Dignity is an invaluable aspect of Indian Constitutional
jurisprudence, and there exists a duty upon the State to take all
action to protect the same – Thus, it is directed that the matter to
be placed on the file of the concerned District Court to proceed in
accordance with the law – The Trial against the accused persons
shall proceed on a day-to-day basis. [Paras 8, 9, 10, 14, 15, 17, 27]

Constitution of India – Art.21 – Dignity:
Held: Dignity goes to the very core of the existence of an individual
in society – Any action which undermines dignity either by an act
of another person or that of the State is potentially going against
the spirit of the Constitution of India, which guarantees the security
of all persons by ensuring that justice, liberty and equality are
avouched for each and every person – By extension, if the dignity
of a person is compromised, their human rights, available to
them by virtue of them being humans and guaranteed by various
enactments, both national and international, are imperilled – Dignity
is an invaluable aspect of Indian Constitutional jurisprudence, and
there exists a duty upon the State to take all action to protect the
same. [Paras 1 and 17]
Constitution of India – Art.51A – discussed. [Paras 18-19]

Case Law Cited
K.S. Puttaswamy (Privacy-9J.) v. Union of India [2017] 10 SCR
569 : (2017) 10 SCC 1 – followed.
1124 [2024] 12 S.C.R.

Supreme Court Reports

Vikram Deo Singh Tomar v. State of Bihar [1988] Supp. 1 SCR
755 : 1988 Supp SCC 734; Pawan Kumar v. State of H.P.
[2017] 3 SCR 458 : (2017) 7 SCC 780; Bodhisattwa Gautam v.
Subhra Chakraborty [1995] Supp. 6 SCR 731 : (1996) 1 SCC
490 – relied on.
Nipun Saxena v. Union of India [2018] 14 SCR 755 : (2019) 2
SCC 703; Kesavananda Bharati v. State of Kerala [1973] Supp. 1
SCR 1 : (1973) 4 SCC 225; X2 v. State (NCT of Delhi) [2022] 7
SCR 686 : (2023) 9 SCC 433; Francis Coralie Mullin v. State (UT
of Delhi) [1981] 2 SCR 516 : (1981) 1 SCC 608 – referred to.

Books and Periodicals Cited
Alam and Raj, (2021) The Academic Journey of Witchcraft Studies
in India, Man in India Vol.97 Issue 21

List of Websites
2019: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
custom/1653730573_CII%202019%20Volume%201.pdf
2020: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
post/16959885631653645869CII2020Volume1.pdf
2021: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
custom/1696831798CII2021Volume1.pdf
2022: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
custom/1701607577CrimeinIndia2022Book1.pdf
Resolution of the Human Rights Council dated 12th July 2021
passed in its 47th session.
https://documents.un.org/doc/undoc/gen/g23/007/84/pdf/g2300784.
pdf

List of Acts
International Covenant on Civil and Protection Rights (See Article
6,7,10,17), Convention on Elimination of Discrimination Against
Women (See Preamble, Article 2,5) and Universal Declaration of
Human Rights (See Article 1,3,5,7,12).

List of Keywords
Witchcraft; Disrobing; Assault; Physical abuse; Verbal abuse;
Dignity; Human Rights; Right to live with human dignity;
[2024] 12 S.C.R. 1125

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

Fundamental duties; Superstitions; Unfounded beliefs; Protection
of women; Exploitation.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
4831 of 2024
From the Judgment and Order dated 04.07.2024 of the High Court
of Judicature at Patna in CRLM No. 30562 of 2023

Appearances for Parties
Bhanwar Pal Singh Jadon, Susheel Tomar, Sanjeev Malhotra,
Advs. for the Appellant.
Santosh Kumar, Rajiv R. Mishra, Ms. Suruchi Yadav, Ashutosh
Yadav, Manish Kumar, Divyansh Mishra, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Sanjay Karol, J.

Leave granted
“The legal subordination of one sex to another — is wrong
in itself, and now one of the chief hindrances to human
improvement; and that it ought to be replaced by a system
of perfect equality, admitting no power and privilege on
the one side, nor disability on the other.”
[John Stuart Mill, On Subjection of Women, Chapter 1
(1869).]
1. Dignity goes to the very core of the existence of an individual in
society. Any action which undermines dignity either by an act of
another person or that of the State is potentially going against the
spirit of the Constitution of India,1 which guarantees the security of
all persons by ensuring that justice, liberty and equality are avouched
for each and every person. By extension, if the dignity of a person

1 Hereafter ‘Constitution’
1126 [2024] 12 S.C.R.

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is compromised, their human rights, available to them by virtue of
them being humans and guaranteed by various enactments, both
national and international, are imperilled.
2. We may benefit from the observations in K.S. Puttaswamy (Privacy-
9J.) v. Union of India2:
“108. Over the last four decades, our constitutional
jurisprudence has recognised the inseparable relationship
between protection of life and liberty with dignity. Dignity as
a constitutional value finds expression in the Preamble. The
constitutional vision seeks the realisation of justice (social,
economic and political); liberty (of thought, expression,
belief, faith and worship); equality (as a guarantee
against arbitrary treatment of individuals) and fraternity
(which assures a life of dignity to every individual). These
constitutional precepts exist in unity to facilitate a humane
and compassionate society. The individual is the focal
point of the Constitution because it is in the realisation
of individual rights that the collective well-being of the
community is determined. Human dignity is an integral part
of the Constitution. Reflections of dignity are found in the
guarantee against arbitrariness (Article 14), the lamps of
freedom (Article 19) and in the right to life and personal
liberty (Article 21).”
3. When such rights of a woman are threatened, the danger is
comparatively greater, for despite advancement by great leaps and
bounds, when it comes to equality, much remains to be achieved,
especially when it comes to women in rural areas.
4. This case is premised on certain disturbing facts. The First Information
Report3 lodged on 04th March 2020 bearing details, FIR No.79/2020
under Sections 341, 323, 354, 354B, 379, 504, 506, 149 of Indian
Penal Code, 18604 and Section 3&4 of the Witch (Daain) Act against
13 persons namely, Ashutosh Kumar, Paritosh Kumar, Rishu Kumar,
Jisu Kumar, Soni Devi, Nirmala Devi, Lakhpati Devi, Sachidanand

2 [2017] 10 SCR 569 : (2017) 10 SCC 1
3 Hereafter ‘FIR’
4 Hereafter ‘IPC’
[2024] 12 S.C.R. 1127

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

Upadhyay, Ravikant Upadhyay, Shrikant Upadhyay, Asim Priyanshu,
Shrina Upadhyay and Shashikant Upadhyay. The relevant extracts
describing the alleged commission of the offence are as under:
"1. The present complaint reveals that the grandmother
of the complainant, ..... going in the village. As soon
as she reached in front of the house of opposite party
Shashikant Upadhyay, the opposite party Shashikant
Upadhyay surrounded ..... and began to say that you
have made my son sick by doing witchcraft. He is
not getting rid of the illness. Today you will have to
cure my son by taking back your witchcraft. On this
.......... said that you should mind your language. I
am not a witch. On this, the opposite party Shrikant
Upadhyay called his family members that a witch had
come. Her witchcraft has to be ended.
2. In continuation of the same, the opposite party
Ashutosh Kumar started pulling the hair (Jhonta)
of the complainant’s grandmother ..... and began
to say to bring the stool (dirt) as the witchcraft of
the witch has to be freed. On this, the opposite
party Paritosh Kumar brought stool in a container
(Phophi) and opposite party Rishu Kumar caught
the hands of the complainant’s grandmother and
Tajbadasti Paritosh Kumar put the stool in the mouth
of the complainant’s grandmother ...... due to which
Jagmasti Kunwar started vomiting and she fell on the
ground. On hearing the noise, when the applicant
and the witnesses went to rescue her, Shashikant
Upadhyay caught the applicant and the brother-in-law
of the opposite party started kicking and slapping him,
giving the filthy abuses. When ....... went to save the
applicant during the fight, she too was given filthy
abuses by all the opposite parties and Paritosh Kumar
and Jishu Kumar made semi-naked to ...... by tearing
her Saree and Blouse and Soni Devi snatched the
gold Sikdi of the complainant.
3. That the opposite party Reena Devi started saying
that the witch has to be paraded in the village by
1128 [2024] 12 S.C.R.

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making her naked. On this, Ravikant Upadhyay and
Asim Priyanshu made the applicant’s grandmother
semi-naked by tearing her Saree and when began to
pull her away, the witness present there saved her.
Thereafter, all the opposite party fled away.
4. That all the opposite party having common
intention beat and abused the applicant, applicant’s
grandmother and ..... and all the aforementioned
caused the incident.
5. That after the incident, the applicant who was badly
injured, got himself treated at Areraj Govt. Hospital.
6. That the applicant informed the local police station
about the incident but the SHO did not take the
applicant’s report. Therefore, the applicant is filing
this case before the Hon’ble Court.
7. That it is necessary in the interest of justice to send
the complaint to the local police station Govindganj
for registering an FIR.
Hence, it is prayed that an order be
passed to register an FIR by sending the
application under Section 156(3) Cr.P.C.
of the applicant to the local police station
so that the applicant may get justice for
which the applicant will be grateful to the
Hon’ble Court.
Sd/-
Rajeev Kumar Upadhyay, Applicant.
13. Action taken: Since the above information reveals
commission of offence(s) u/s as mentioned at item: 2
(1) Registered the case and took up the investigation:
Subodh Kumar SI( Sub-Inspector), Govindganj Or
(2) Directed (Name of I.O.):, Rank: SI (Sub-Inspector)
No. to take up the investigation:”
The FIR as extracted above contained the names of two victims,
however, considering the nature of the accusations and in keeping
[2024] 12 S.C.R. 1129

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

with the directions issued in Nipun Saxena v. Union of India,5 their
names stand redacted.
5. The Police, upon investigation, filed a chargesheet bearing
no.129/2020 before the Chief Judicial Magistrate, Motihari (East
Champaran) on 08th August 2020 under Sections 341, 329 and 504
IPC, against only one person, namely, Lakhpati Devi and observed
that none of the others were to be sent up for trial.
6. The record reveals that Additional Chief Judicial Magistrate6- First,
Motihari, took cognizance of the aforesaid incident. The said order
dated 21st February 2021, is not on record. Such taking of cognizance
was challenged before the Sessions Judge, East Champaran,
Motihari. The order dated 16th July 2022 reveals that the learned
ACJM, upon perusal of the case records, took cognizance against not
only Lakhpati Devi but also all other persons named in the FIR. The
Sessions Judge declined to interfere with the order of cognizance.
7. It is in the aforesaid backdrop that the accused persons preferred
Criminal Miscellaneous No.30562 of 2023 before the High Court of
Judicature at Patna under Section 482, Code of Criminal Procedure,
1973,7 seeking quashing thereof. The order of the High Court dated
04th July 2024 is reproduced as under:
“Heard learned counsel for the petitioners; learned APP
for the State and learned counsel for the informant.
2. Heard.
3. Admit.
4. During pendency of this application, the operation of the
order dated 16.07.2022 passed by the learned Sessions
Judge, East Champaran at Motihar in Criminal Revision
No. 94 of 2022, shall remain stayed with respect to the
petitioners only. ”
8. The complainant, aggrieved by the stay granted by the High Court,
has approached this Court. During the hearing on 26th November
2024, learned counsel informed us that the petition seeking quashing
of the cognizance order stood withdrawn as on 22nd November 2024.

5 [2018] 14 SCR 755 : (2019) 2 SCC 703
6 Hereafter ‘ACJM’
7 Hereafter ‘CrPC’
1130 [2024] 12 S.C.R.

Supreme Court Reports

9. In ordinary circumstances, the petition could have been disposed
of by requesting the Trial Court to proceed expeditiously with the
trial of the accused persons, keeping in view that the offence was
committed in the early part of 2020, and now we stand right at
the door of 2025 however this case does not fall under ‘ordinary
circumstances’. The FIR, as extracted above, shows that the victim,
whose name is redacted for the purposes of maintaining the privacy
of the said individual, was subjected to grave accusations and also
disrobed and assaulted in public, which undoubtedly is an affront
to her dignity. Certain other acts were also committed against her,
which we refrain from mentioning again, for the full extent of which
already stands extracted supra and because the reality that such
acts are still a part of 21st century life is a fact that has shaken the
conscience of this Court. Not only was the victim accused of witchcraft,
but she was abused physically and verbally as well. Another person
who was present amidst all this disturbance was also disrobed, and
her jewellery was snatched.
10. Before proceeding further, we may observe that even though the
Criminal Miscellaneous petition now stands withdrawn, this Court is
aghast as to how the High Court, in its wisdom, saw it fit to grant
a stay against proceedings qua the accused persons. It cannot be
doubted that each and every person subjected to the criminal law
of the country is taken to be innocent till proven otherwise, and
this presumption extends till the very last moment. Nonetheless,
the machinery cannot be ground to a halt in such a callous and
unreasoned manner. A Court granting a stay of proceedings is not to
grant a stay in a mechanical manner. The sum total of circumstances
both for and against need to be examined to check as to whether
a prima facie case for stay is made out or not, or in other words,
whether the non-grant of stay is to somehow prejudice the party, etc.
11. When it comes to offences that infringe upon the dignity of a
person, the responsibility cast on both the investigating and the
adjudicatory authorities, in our considered view, is greater than
usual or what is generally cast upon them in other circumstances.
Both these authorities must show sensitivity to the issues involved,
awareness of the social situations, a sensitivity to emotions evoked
by the circumstances at play and a consciousness for time being
the essence of action and lastly, but arguably the most importantly
[2024] 12 S.C.R. 1131

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

the letter of the law and the balance of the scales of justice for the
accused and the victim.
12. We are constrained to observe that this case demonstrates the exact
opposite of what appears to us to be only natural and expected. The
FIR, as extracted supra, records that the authorities did not heed the
complainant’s request for the registration of an FIR and that recourse
had to be taken to Section 156(3) of CrPC. A further peculiar situation
came to be when out of the 13 accused persons, only one person,
whose name incidentally did not feature directly as having acted
against the victims physically or verbally, was sent up for trial i.e.
Lakhpati Devi and those against whom direct allegations have been
made in the complaint/FIR were let go scot-free. The chargesheet
did not disclose any reason as to why the investigating authorities
adopted such a course of action. It is a matter of record that on the
basis of the very same material collected during the investigation,
the learned ACJM found it fit to send all accused persons to trial,
taking the opposite view as put forth in the chargesheet. This leads
us to question how can one set of materials elicit such diametrically
opposite courses of action.
13. It is a well-acknowledged fact that the States and the Union
Government are the biggest litigators before the High Courts and this
Court. Numerous cases are filed by State parties everyday. There may
be various reasons as to why the States choose to litigate various
issues and topics before the Court, but the overarching purpose of
any action of the State should be the welfare of the people. In this
regard reference may be made to Vikram Deo Singh Tomar v.
State of Bihar,8
“2. India is a welfare State governed by a Constitution
which holds the pride of place in the hearts of its citizens.
It lays special emphasis on the protection and well being of
the weaker sections of society and seeks to improve their
economic and social status on the basis of constitutional
guarantees spelled out in its provisions. It shows a particular
regard for woman and children, and notwithstanding the
pervasive ethos of the doctrine of equality it contemplates
special provision being made for them by law. This is

8 [1988] Supp. 1 SCR 755 : (1988) Supp SCC 734
1132 [2024] 12 S.C.R.

Supreme Court Reports

only to be expected when an enlightened constitutional
system takes charge of the political and socio-economic
governance of a society, which has for centuries witnessed
the relegation of women to a place far below their due.
We live in an age when this Court has demonstrated,
while interpreting Article 21 of the Constitution, that every
person is entitled to a quality of life consistent with his
human personality. The right to live with human dignity is
the fundamental right of every Indian citizen. And, so, in
the discharge of its responsibilities to the people, the State
recognises the need for maintaining establishments for
the care of those unfortunates, both women and children,
who are the castaways of an imperfect social order and
for whom, therefore, of necessity provision must be made
for their protection and welfare. Both common humanity
and considerations of law and order require the State to
do so. …”
14. Given the vulgarity of what the two women had to endure, we may
say nothing more but express our surprise as to why the State chose
not to assail the non-speaking order of the High Court granting stay
in favour of the accused before this Court. The State’s decision
to litigate an issue should not depend on the benefit that may be
derived either to the State exchequer or elsewhere but also should be
reflected of its responsibility to protect, within its people the respect
for the rule of law and justice for all.
15. Incidents such as the one before us, as also many others that
come across our desks, keep us alive to the on-ground reality that
however much has been done by way of legislative, executive and
judicial action to protect vulnerable sections of the society, in this
context women, from exploitation, its effect has not permeated to
the grassroot level. We take this opportunity to refer to and reaffirm
our commitment to the ideals of equality and justice for all.
16. Unquestionably, Article 21 of the Constitution is at the forefront
of violations having taken place in this inhumane incident. In the
celebrated case Kesavananda Bharati v. State of Kerala,9 it was
held that the right to dignity forms part of the basic structure of the

9 [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225
[2024] 12 S.C.R. 1133

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

Constitution. Recently, a bench of 3-judges in X2 v. State (NCT of
Delhi)10 observed that the concept of dignity forms the very foundation
of the Constitution and the rights enshrined in it. In Francis Coralie
Mullin v. State (UT of Delhi),11 this Court recognized that the right
to life includes the right to live with human dignity. In Pawan Kumar
v. State of H.P.,12 :
“47. …A woman has her own space as a man has. She
enjoys as much equality under Article 14 of the Constitution
as a man does. The right to live with dignity as guaranteed
under Article 21 of the Constitution cannot be violated by
indulging in obnoxious act of eve teasing. It affects the
fundamental concept of gender sensitivity and justice and
the rights of a woman under Article 14 of the Constitution.
That apart it creates an incurable dent in the right of a
woman which she has under Article 15 of the Constitution.
One is compelled to think and constrained to deliberate
why the women in this country cannot be allowed to live in
peace and lead a life that is empowered with dignity and
freedom. It has to be kept in mind that she has a right to
life and entitled to love according to her choice. She has
an individual choice which has been legally recognised. It
has to be socially respected. No one can compel a woman
to love. She has the absolute right to reject.
…
48. In a civilised society male chauvinism has no room.
The Constitution of India confers the affirmative rights on
women and the said rights are perceptible from Article
15 of the Constitution. When the right is conferred under
the Constitution, it has to be understood that there is no
condescension. A man should not put his ego or, for that
matter, masculinity on a pedestal and abandon the concept
of civility. Egoism must succumb to law. Equality has to
be regarded as the summum bonum of the constitutional
principle in this context. …”

10 [2022] 7 SCR 686 : (2023) 9 SCC 433
11 [1981] 2 SCR 516 : (1981) 1 SCC 608
12 [2017] 3 SCR 458 : (2017) 7 SCC 780
1134 [2024] 12 S.C.R.

Supreme Court Reports

17. What can be gathered from reference to the above judgments is that
dignity is an invaluable aspect of Indian Constitutional jurisprudence,
and there exists a duty upon the State to take all action to protect
the same.
18. There is undoubtedly a right to live with dignity, as discussed above.
But concomitantly, there is a duty cast upon every citizen to promote
harmony and a spirit of common brotherhood amongst all, keeping
aside the differences that are only natural in a country which is as
vast and varied as India. Reference can be made to Article 51A of
the Constitution. It is to be emphasized that 51A(e) extracted herein
below postulates a duty to renounce practices which are derogatory
to women. It reads:
“51-A. Fundamental duties.—It shall be the duty of every
citizen of India—
…
(e) to promote harmony and the spirit of common
brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;
…
(h) to develop the scientific temper, humanism and the
spirit of inquiry and reform;”
19. At this stage, we may also take note of Article 51(c) of the Constitution
which enjoins upon the State the responsibility to foster respect for
International Law and treaty obligations. The protection of dignity for all
human beings as also the protection of women against discrimination
form important parts of obligations under International Law in so far
as India is concerned. India is the signatory to International Covenant
on Civil and Protection Rights (See Article 6,7,10,17), Convention
on Elimination of Discrimination Against Women13 (See Preamble,
Article 2,5) and Universal Declaration of Human Rights (See Article
1,3,5,7,12). It would be apposite to reproduce below certain provisions
of the CEDAW:

13 In short ‘CEDAW’
[2024] 12 S.C.R. 1135

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

“Preamble
…
Recalling that discrimination against women violates the
principles of equality of rights and respect for human
dignity, is an obstacle to the participation of women, on
equal terms with men, in the political, social, economic
and cultural life of their countries, hampers the growth of
the prosperity of society and the family and makes more
difficult the full development of the potentialities of women
in the service of their countries and of humanity, …
Article 2 States Parties condemn discrimination against
women in all its forms, agree to pursue by all appropriate
means and without delay a policy of eliminating
discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men
and women in their national constitutions or other
appropriate legislation if not yet incorporated therein
and to ensure, through law and other appropriate
means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures,
including sanctions where appropriate, prohibiting all
discrimination against women;
(c) To establish legal protection of the rights of women
on an equal basis with men and to ensure through
competent national tribunals and other public
institutions the effective protection of women against
any act of discrimination;
(d) To refrain from engaging in any act or practice
of discrimination against women and to ensure
that public authorities and institutions shall act in
conformity with this obligation;
(e) To take all appropriate measures to eliminate
discrimination against women by any person,
organization or enterprise;
(f) To take all appropriate measures, including legislation,
to modify or abolish existing laws, regulations,
1136 [2024] 12 S.C.R.

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customs and practices which constitute discrimination
against women;
…
Article 5 States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimination
of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men
and women;…”
20. Having noticed the obligations under international law to protect
women as above, we now turn to the main basis on which the two
female victims were harassed and grievously assaulted.
21. Witchcraft, of which one of the victims stands accused, is certainly
one such practice which should be shunned. Such allegations have a
long past often with tragic consequences for those subjected to them.
Witchcraft is deeply intertwined with superstition, patriarchy and social
control, leaving it to no manner of surprise that such allegations were
most often directed against women who were either widows or elderly.
A variety of reasons are accepted to be the reasons for casting such
aspersions- caste-based discrimination, retaliation for defying social
norms, etc. The effect thereof is overwhelmingly negative, leading to
barbaric treatment, public humiliation and sometimes even death.14

Yearly report as per NCRB15 Witchcraft 354-B IPC
2019 102 11238
2020 88 10580
2021 68 11102
2022 85 9101

14 See generally, Alam and Raj, (2021) The Academic Journey of Witchcraft Studies in India, Man in India
Vol.97 Issue 21
15 2019-https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1653730573_CII%20
2019%20Volume%201.pdf
2020- https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/post/16959885631653645869CII20
20Volume1.pdf
2021-https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1696831798CII2021
Volume1.pdf
2022- https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1701607577CrimeinIndia20
22Book1.pdf
[2024] 12 S.C.R. 1137

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

22. Although the numbers referred to above may seem insignificant,
however, even 102 or 85, whatever the number may be, of reported
inhumane, degrading incidents, each of them is a blot on the
constitutional spirit. Those many persons were targeted and possibly
exploited and abused on the basis of superstitions, conjecture and
entirely unfounded beliefs which go against the scientific temper that
each and every citizen of India called upon to foster within oneself and
also within their own communities. The other number presented, i.e.
the number of incidents reported under Section 354-B IPC, is deeply
anguishing. In Bodhisattwa Gautam v. Subhra Chakraborty16 the
Court made the following observations in the context of the offence
under Section 375 IPC:
“10. Rape is thus not only a crime against the person of
a woman (victim), it is a crime against the entire society.
It destroys the entire psychology of a woman and pushes
her into deep emotional crisis. It is only by her sheer will-
power that she rehabilitates herself in the society which,
on coming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated
crime. It is a crime against basic human rights and is also
violative of the victim›s most cherished of the Fundamental
Rights, namely, the Right to Life contained in Article 21.
To many feminists and psychiatrists, rape is less a sexual
offence than an act of aggression aimed at degrading and
humiliating women. The rape laws do not, unfortunately,
take care of the social aspect of the matter and are inept
in many respects.”
23. We may say that the offence of disrobing would also qualify as
having a similar effect on the psychology of the woman subjected
to such deep humiliation.
24. Turning our attention back to witchcraft, the seriousness and drastic
ill effects of such accusations and what follows thereafter have
been noticed at the World stage. Of relatively recent vintage is the
Resolution of the Human Rights Council dated 12th July 2021 passed
in its 47th session, the relevant extract of which read as under:

16 [1995] Supp. 6 SCR 731 : (1996) 1 SCC 490
1138 [2024] 12 S.C.R.

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“1. Urges States to condemn harmful practices related to
accusations of witchcraft and ritual attacks that result in
human rights violations;
2. Also urges States to take all measures necessary to
ensure the elimination of harmful practices amounting to
human rights violations related to accusations of witchcraft
and ritual attacks, and to ensure accountability and the
effective protection of all persons, particularly persons in
vulnerable situations;
…
4. Invites States, in collaboration with relevant regional and
international organizations, to promote bilateral, regional
and international initiatives to support the protection of
all persons vulnerable to harmful practices amounting to
human rights violations related to accusations of witchcraft
and ritual attacks, while noting that, in providing protection,
attention to local context is critical;
....
6. Emphasizes that States should carefully distinguish
between harmful practices amounting to human rights
violations related to accusations of witchcraft and ritual
attacks and the lawful and legitimate exercise of different
kinds of religion or beliefs, in order to preserve the right
to freely manifest a religion or a belief, individually or in
a community with others, including for persons belonging
to religious minorities;
7. Encourages human rights mechanisms, including
relevant special procedures of the Human Rights Council
and treaty bodies, to compile and share information on
harmful practices related to accusations of witchcraft and
ritual attacks and their impact on the enjoyment of human
rights;
…”
(Emphasis Supplied)
[2024] 12 S.C.R. 1139

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

25. Subsequent to this resolution, a report of the Office of UN High
Commissioner for Human Rights was submitted to the Council in its
52nd session titled ‘Study on the situation of the violations and abuses
of human rights rooted in harmful practices related to accusations of
witchcraft and ritual attacks, as well as stigmatization.’17. The section
on ‘Women and Girls’ deserves extraction given the context with
which this Court is concerned:
“17. The Committee on the Elimination of Discrimination
against Women has noted that in some countries persistent
patriarchal norms confine women to their reproductive role
and legitimize harmful practices, including the accusation
of witchcraft and the social exclusion of women and girls
accused of practising witchcraft. Reportedly, women
who do not fulfil gender stereotypes, such as widows,
childless or unmarried women, are at increased risk of
accusations of witchcraft and systemic discrimination. Other
marginalized groups include older women, women with
disabilities, mothers of children with albinism, Indigenous
women, women belonging to minorities and lower castes,
women of African descent and women of diverse sexual
orientations, gender identities, gender expressions and
sex characteristics.
18. Research indicates that women are more often
subjected to accusations of witchcraft than men. Women
accused of witchcraft have been subjected to various
forms of violence, including being beaten, burnt, stripped
naked, raped, mutilated, buried alive and killed. Owing
to the grave consequences of such accusations in
some countries, it has been suggested that emergency
procedures be put in place to rescue and resettle women
who are at risk of suffering witchcraft-related violence in
their communities. In some countries, women have also
been detained on grounds of witchcraft or charlatanism,
often on the pretext of protecting them from mob justice.
There are also instances of women, in some countries,
who have been sent to “witch camps” through a system

17 The report can be accessed at https://documents.un.org/doc/undoc/gen/g23/007/84/pdf/g2300784.pdf
1140 [2024] 12 S.C.R.

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that lacks minimal due legal process and from which the
possibility of returning to society is uncertain.
19. Several of the root causes of accusations of witchcraft
targeting women were outlined during the expert
consultation, including patriarchy, cultural beliefs and
structural challenges of conflicts and poverty. Participants
also discussed other factors related to accusations of
witchcraft and ritual attacks. For example, inheritance
practices mean that widows and wives in polygamous
marriages without children, or without sons, are vulnerable
because in many cases the land, house and other properties
will pass on to the husband’s sons from other wives or
the nearest male relative. Competition over financial
resources, for attention, looks or children may trigger
accusations of witchcraft and lead to acts of violence as
a result of jealousy. Illness and death in the family or local
community, as well as other misfortunes, are key factors
in triggering accusations of witchcraft against and ritual
attacks on women. The arrival of strangers/newcomers in
a local community may be another factor. Women’s agency
and assertion of rights may also trigger accusations of
witchcraft against independent and empowered women.
20. Older women accused of witchcraft have been reported
to be subject to imprisonment, forced starvation, damaging
“exorcism” ceremonies, such as forcing them to ingest
hazardous substances, such as cement, and having nails
driven into their heads with the objective of extracting
confessions of witchcraft and forcing the evil spirit out.
In some countries, such women are abandoned by their
own children, family and community members and often
the State does not provide alternative care facilities. Due
to extreme fear of witchhunting or reprisal attacks, those
labelled as “witches” are exiled to the margins of their
communities and forced to remain confined in “safe”
spaces, living in deplorable conditions.
21. The Committee on the Elimination of Discrimination
against Women has stressed that States should combat
all forms of discrimination and violence against older
[2024] 12 S.C.R. 1141

Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.

women accused of witchcraft, including intimidation,
isolation, abuse and killings, as well as expulsions from
their homes and families, and ensure that the perpetrators
are prosecuted and adequately punished.
…
23. The Committee on the Elimination of Discrimination
against Women has emphasized the need to take
immediate and effective measures to investigate incidents
of violence against and murder of women and girls based
on accusations of witchcraft, and prevent their reoccurrence
in the future; arrest, prosecute and adequately punish the
perpetrators of such acts; strengthen the enforcement
of relevant legislation; and criminalize accusations
of witchcraft, while repealing provisions criminalizing
witchcraft per se.
24. The Committee has also stressed the importance of
undertaking public education programmes highlighting the
negative impact of accusations of witchcraft, targeting both
men and women, as well as community and villages chiefs
and religious leaders, and raising awareness, particularly
in rural areas, of the criminal nature of such attacks. It has
also noted the need for special programmes that address
the psychological trauma, physical harm, social exclusion
and impoverishment of women accused of witchcraft, and
allocate adequate resources to victim support structures.”
26. In the preceding paragraphs, we have discussed the variety of
legislations, judicial pronouncements and other relevant literature
pertaining to, in particular, the allegations of witchcraft and, in general,
the protection of women against discrimination and exploitation. It
is not lost on us that the judgment impugned before us has been
rendered null by subsequent withdrawal; however, given the peculiarity
of the situation and the vulgarity of the actions alleged, we adopted
the course as above.
27. Keeping in view the aforesaid, we issue the following order:
(1) The matter is placed on the file of the concerned District Court
to proceed in accordance with the law.
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(2) The Trial against the accused persons shall proceed on a day-
to-day basis.
(3) The accused persons are directed to appear before the Trial
Court on 15th January 2025.
(4) It stands clarified that comments made hereinabove reflect only
the heinousness of the crimes committed and do not in any way
cast a shadow of guilt over the accused persons.
(5) The Trial shall proceed keeping in view the aforesaid principles
but uninfluenced by any observations made in this judgment.
Pending application(s), if any, stand disposed of.

Result of the case: Appeal disposed of.

†
Headnotes prepared by: Ankit Gyan