Delhi high court
NEW DELHI: The protection enjoyed by a woman under Code of Criminal Procedure (CrPC) is not available in proceedings related to Foreign Exchange Management Act (Fema), which is governed by civil law, Delhi high court has ruled.Justice Neena Bansal Krishna dismissed a writ petition filed by a 53-year-old Canadian citizen challenging ED summons issued under Fema Section 37 for recording of her statement, rejecting the contention that safeguards guaranteed to women under CrPC applied to such summons.The petitioner argued that she could not be compelled to appear at the ED office and her statement must be recorded at her residence. She cited CrPC Section 160(1), which prevents women from being required to appear at places other than their residence for investigation. However, the HC highlighted that Fema investigations were civil-administrative proceedings, not criminal inquiries, and therefore, the gender-based protection available under CrPC could not be invoked.“The PMLA and the Fema have distinct statutory frameworks and nature of proceedings. Section 50 PMLA confers criminal investigative powers on ED involving summons for inquiries related to money laundering, which is a scheduled offence under PMLA and involves criminal prosecution. In contrast, Section 37 Fema is primarily concerned with civil-administrative investigations of foreign exchange contraventions governed by a regulatory framework distinct from criminal law. Secondly, there is a difference in the scope of summons and procedural safeguards,” the court said.“Civil code contains no provision like Section 160 CrPC mandating the recording of the statement of a woman at her residence. The insistence of the petitioner for not appearing before the authority is, therefore, without any basis,” Justice Krishna observed.“Powers regarding discovery and production of evidence under Section 37 Fema are analogous to those under Section 131 Income Tax Act, which is governed by civil code and therefore, Section 160 CrPC would not be applicable,” HC added.
