Recently, the Delhi High Court confronted an unusual question: can a woman summoned under the Foreign Exchange Management Act insist on the personal protections granted to women during criminal investigations under the CrPC. The issue arose when a foreign national resisted appearing before the Enforcement Directorate, claiming she was entitled to the procedural safeguards normally available during police inquiries.
The case arose from a petition filed by a 53-year-old Canadian citizen who challenged a summons issued to her under Section 37 of FEMA for recording her statement in connection with an ongoing probe. Arguing that she could not be compelled to appear at the ED office, she relied on Section 160(1) of the CrPC, which bars the police from requiring women to appear anywhere other than their residence during an investigation. She maintained that the ED’s actions amounted to a form of investigative compulsion similar to criminal inquiries and therefore must comply with CrPC protections.
The petitioner contended that FEMA inquiries have an investigative character and that compelling a woman to attend an agency office contradicts the statutory protection embedded in Section 160 CrPC. The ED, however, firmly opposed this interpretation, asserting that FEMA is purely a civil-administrative framework dealing with regulatory contraventions and not a criminal law statute. They maintained that the summons issued under FEMA carries its own legal authority and does not attract criminal procedural safeguards.
The Court, after examining the legislative scheme, observed that FEMA and the Prevention of Money Laundering Act occupy entirely different legal terrains. It noted that PMLA confers criminal investigative powers upon the ED because money laundering involves a scheduled offence and subsequent prosecution. FEMA, on the other hand, is concerned with civil and regulatory breaches relating to foreign exchange, and the inquiry under Section 37 is administrative in nature. There was, the court emphasised, “no provision in the civil code akin to Section 160 CrPC mandating that the statement of a woman must be recorded at her residence,” making the petitioner’s insistence untenable. Justice Neena Bansal Krishna also highlighted that the powers under Section 37 FEMA mirror those under Section 131 of the Income Tax Act, a similarly civil statute where CrPC protections have never been imported.
In the final outcome, the High Court held that the gender-specific protection available under Section 160 CrPC cannot be extended to FEMA proceedings and found no legal basis for the petitioner’s refusal to appear before the ED. The summons were upheld, and she was directed to comply with the authority’s requirement to attend in person.
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