Delhi HC on FEMA Summons: Women Cannot Insist on Home Recording of Statements, Sec 160 CrPC Inapplicable

The Delhi High Court recently decided a writ petition filed by a 53‑year‑old woman (a Canadian citizen) who challenged multiple ED summons issued in connection with an inquiry under FEMA. She argued that as a woman, Section 160(1) CrPC protected her from being compelled to appear at the ED office and that her statement should instead be recorded at her residence.​

The ED had issued summons under Section 37 of FEMA read with Section 131 of the Income‑tax Act, requiring her personal appearance and production of documents for a foreign exchange violation inquiry. She approached the High Court under writ jurisdiction seeking quashing or modification of these summons.

Key legal issue: Does Sec 160 CrPC protect women in FEMA summons?

Section 160(1) CrPC generally states that a woman cannot be required to attend any place other than the place where she resides when called by the police for investigation as a witness. The petitioner tried to extend this protection to ED proceedings, claiming the same safeguard should apply when she is summoned under FEMA.​

The Court framed the central issue as whether summons issued under Section 37 FEMA attract the procedural protections of CrPC, especially the second proviso to Section 160, or whether they are part of a different, civil‑regulatory framework.​

FEMA summons are civil, governed by CPC

The Court held that proceedings under FEMA are regulatory and civil in character, not criminal investigations. It noted that Section 37 of FEMA imports powers similar to Section 131 of the Income‑tax Act, including discovery, inspection, and compelling attendance, which are aligned with civil court processes and the Code of Civil Procedure (CPC), not CrPC.​

On this basis, the Court categorically ruled that Section 160 CrPC has no role in FEMA inquiries and does not restrict the ED from requiring women to attend its office for recording statements or producing documents. Since the Civil Procedure framework has no equivalent to the gender‑based exemption in Section 160 CrPC, the petitioner’s insistence on home recording solely because she is a woman was found to be baseless.​

ED’s power to insist on personal appearance and documents

The judgment clarified that ED officers, when exercising powers under Section 37 FEMA read with Section 131 of the Income‑tax Act, are legally empowered to:​

• Summon any person, including women, to appear in person at the ED office.
• Require the production of books, records, and documents relevant to FEMA inquiries.
• Record statements in the nature of evidence in a civil‑regulatory proceeding.

The Court also rejected the argument that ED must first share all documents or the “basis” of the inquiry before enforcing summons, observing that a Section 37 FEMA summons is part of a preliminary fact‑finding process, not a full‑fledged trial. The very purpose of such summons is to collect information and evidence, including the person’s statement, so insisting on prior disclosure of the entire material was held to be legally untenable.​

Effect of the ruling: No gender‑based exemption under FEMA

The High Court ultimately dismissed the writ petition, affirming that there is “no merit” in challenging ED’s insistence on personal appearance in FEMA proceedings. Women cannot rely on Section 160 CrPC to demand that their statements be recorded at home or to avoid attending the ED office in response to FEMA summons.​

For taxpayers, businesspersons, and their families, this ruling underscores that:

• FEMA inquiries are civil‑regulatory, but attendance before ED is mandatory when validly summoned.​
• Gender‑based protections available in police investigations under CrPC do not automatically extend to FEMA or other regulatory laws unless expressly provided.​
• Non‑compliance with FEMA summons can invite adverse inferences and further action under the Act.​

Practical takeaways for women receiving FEMA summons

When a woman receives a summons from ED under Section 37 FEMA:

• She should treat it as a binding direction to appear in person at the specified ED office, unless a valid legal ground (such as health or other demonstrable hardship) is specifically accepted by the authority.​
• She can seek reasonable time, professional assistance, and clarity about the nature of the inquiry, but cannot claim an absolute right to home‑recording of her statement on the basis of Section 160 CrPC.​
• Taking advice from a lawyer or professional experienced in FEMA/ED matters is advisable before appearing, especially where large transactions, cross‑border dealings, or complex documentation are involved.

Disclaimer

This blog is based on publicly available information and judicial interpretations and is intended only for general informational purposes. It does not constitute legal, tax, or professional advice. Readers are advised to consult their respective consultants, Chartered Accountants (CA), Company Secretaries (CS), tax consultants, or lawyers to determine applicability to their specific circumstances.