Inapplicability of Section 160 CrPC to FEMA Summons: Commentary on Smt. Poonam Gahllot v. Directorate of Enforcement (2025 DHC 10698)

Inapplicability of Section 160 CrPC to FEMA Summons: Commentary on Smt. Poonam Gahllot v. Directorate of Enforcement (2025 DHC 10698)

1. Introduction

The Delhi High Court’s decision in Smt. Poonam Gahllot v. Directorate of Enforcement, 2025 DHC 10698, decided on 1 December 2025 by Justice Neena Bansal Krishna, addresses a recurring and sensitive question in Indian procedural law:

Can the Enforcement Directorate (ED), while investigating contraventions under the Foreign Exchange Management Act, 1999 (FEMA), compel a woman to appear personally in its office, or must her statement be recorded only at her residence by virtue of Section 160 of the Code of Criminal Procedure, 1973 (CrPC)?

The Court answers this in the negative from the standpoint of the petitioner and holds that Section 160 CrPC does not apply to summons issued under Section 37 of FEMA read with Section 131 of the Income Tax Act (ITA). Consequently, ED can lawfully insist on the personal appearance of a woman in its office in FEMA proceedings for the purpose of recording her statement and securing production of documents.

The ruling clarifies the procedural nature of FEMA investigations, locates Section 37 FEMA within a civil-regulatory framework analogous to Section 131 ITA, and sharply distinguishes it both from CrPC provisions and from the more coercive criminal-investigative powers under the Prevention of Money Laundering Act, 2002 (PMLA).

2. Factual Background and Procedural History

2.1 The Petitioner and the Search

  • The petitioner, Smt. Poonam Gahllot, is a 53-year-old Canadian citizen, residing in New Delhi with her husband.
  • On 10 October 2018, officials claiming to be from the Income Tax Department conducted a search at a rented premises in Vasant Vihar, where the petitioner’s elder son, daughter-in-law and younger son were present.
  • The petitioner alleged that:
    • The premises were “virtually ransacked”,
    • Threats and coercive tactics were used against her sons and daughter-in-law,
    • No woman officer was present, and
    • The family members were effectively placed under “house arrest” until the early hours of 13 October 2018.

2.2 Summons under FEMA

  • Subsequently, the Enforcement Directorate issued a series of summons to the petitioner under:
    • Section 37 FEMA, read with
    • Section 131 ITA (powers of discovery and production of evidence).
  • First summons (No. 329 dated 27.11.2018): directed the petitioner to appear on 30.11.2018 with documents listed in an Annexure.
  • She sought deferment citing serious viral illness in the family.
  • Second summons (No. 339 dated 30.11.2018): again required personal appearance for recording her statement under FEMA.
  • On 04.12.2018, she:
    • Claimed to be herself suffering from viral fever; yet
    • Submitted the documents sought by ED.
  • Letter dated 06.12.2018: she invoked her status as a woman and relied on:
    • Section 160(1) CrPC – protection of women from being required to attend anywhere other than their residence for investigation, and
    • Delhi High Court Division Bench decision in Asmita Agrawal v. Enforcement Directorate, (2002) 61 DRJ 339 (DB),
    requesting that her statement be recorded at her residence.
  • Third summons (dated 12.12.2018) – endorsed as a “final opportunity” to tender statement under Section 37 FEMA; again required her personal attendance in ED’s office.

2.3 Rejection of Requests and Writ Petition

  • By letter dated 12.12.2018, ED rejected her request to rely on Section 160 CrPC and instead relied on Madras High Court’s decision in Nalini Chidambaram v. Directorate of Enforcement, 2018 (2) MLJ (Crl) 430.
  • The petitioner reiterated her legal position in a further letter dated 13.12.2018 but received no favourable response.
  • She then filed the present writ petition under Article 226 of the Constitution read with Section 482 CrPC, seeking:
    1. Quashing of the ED summons to the extent they insisted on her personal appearance in the ED office; and
    2. A direction that her statement be recorded at her residence in compliance with Section 160 CrPC;
    3. Supply of all documents/material relied upon by ED before recording her statement, invoking Articles 14, 20 and 21 of the Constitution.

3. Issues Before the Court

The core legal questions were:
  1. Whether Section 160(1) CrPC applies to summons issued under Section 37 FEMA read with Section 131 ITA, thereby prohibiting ED from compelling a woman to appear at its office.
  2. Whether, through Section 37(3) FEMA (which imports powers of Income Tax authorities), the CrPC’s search and seizure provisions – and, by extension, Section 160 CrPC – become applicable to FEMA investigations.
  3. Whether, in light of constitutional guarantees of fair investigation and fair procedure (Articles 14, 20, 21), the petitioner was entitled to:
    • Have her statement recorded at her residence; and
    • Be supplied with all material/documents in ED’s possession before being examined.

4. Summary of the Judgment

The Delhi High Court dismissed the writ petition, holding in essence that:

  • Section 160 CrPC is inapplicable to summons issued under Section 37 FEMA for discovery and production of evidence.
  • Section 37 FEMA assimilates the powers of ED to those of Income Tax authorities under Section 131 ITA, which are civil in nature and governed by the Code of Civil Procedure, 1908 (CPC), not by CrPC.
  • The CrPC is attracted under Section 37 FEMA only in respect of search and seizure operations, analogous to Section 132 ITA, but not for summoning and recording statements.
  • There is no provision in CPC similar to Section 160 CrPC that mandates examination of women witnesses only at their residence.
  • Accordingly, ED is legally entitled to insist on the petitioner’s personal appearance at its office for the purpose of:
    • seeking production of documents, and
    • recording her statement to trace the source of funds used for foreign assets.
  • The Court found no violation of fundamental rights shown on the record sufficient to interfere with the summons.

The writ petition and all pending applications were therefore dismissed.

5. Statutory Framework

5.1 FEMA and Section 37

Section 37 of FEMA appears in Chapter VI: Directorate of Enforcement and, in substance, provides:

  • Designated officers (Director, Assistant Director, etc.) shall exercise powers similar to those conferred on Income Tax authorities under the IT Act.
  • Such powers are to be exercised “subject to such limitations laid down under that Act”.

The Section is titled “Power of search, seizure, etc.”. The Court places interpretive emphasis on the word “etc.” to conclude that it covers not merely search and seizure but also powers of discovery, summoning attendance and compelling production of documents.

5.2 Section 131 ITA – Powers akin to a Civil Court

Section 131 ITA vests certain Income Tax authorities with the same powers as a civil court trying a suit under the CPC, in respect of:

  • Discovery and inspection,
  • Enforcing attendance of any person and examining him on oath,
  • Compelling production of books and other documents,
  • Issuing commissions.

These powers are investigative and evidentiary but civil in character, directed towards assessment and determination of tax liability.

5.3 Section 132 ITA – Search and Seizure and application of CrPC

Section 132 ITA deals with search and seizure and, in sub-section (13), explicitly provides that:

“The provisions of the Code of Criminal Procedure, 1973, relating to searches and seizures shall apply, so far as may be, to searches and seizures under sub-section (1) or sub-section (1A).”

Thus, under the IT Act:

  • Section 131 – powers of a civil court under the CPC (for summons, discovery, attendance, production of documents);
  • Section 132 – powers of search and seizure to which CrPC provisions on search/seizure apply.

5.4 Section 4 and Section 160 CrPC

  • Section 4(2) CrPC provides that offences under laws other than the IPC shall be dealt with according to the CrPC unless a special procedure is prescribed in those laws.
  • Section 160(1) CrPC proviso states that a woman shall not be required to attend any place other than the place in which she resides when her presence is required for investigation by police.

The petitioner’s core submission was that, in the absence of a specific contrary procedure under FEMA, Section 160 CrPC should apply to FEMA investigations via Section 4(2) CrPC and via Section 37(3) FEMA read with Section 132 ITA (and hence CrPC).

5.5 PMLA and Section 50 (Comparative Context)

Section 50 PMLA grants ED officers powers of a civil court to summon persons, enforce attendance, compel production of documents and record statements, in relation to the offence of money laundering.

In Abhishek Banerjee & Anr. v. Directorate of Enforcement (SLP (Crl.) Nos. 2806–2807/2022, decided 17.05.2022), the Supreme Court held that:

  • Summons under Section 50 PMLA are distinct from CrPC provisions such as Section 160,
  • ED is not required to conform to CrPC’s territorial and gender-based limitations while exercising Section 50 power in PMLA investigations.

ED relied on this analogy; the Delhi High Court ultimately distinguished FEMA from PMLA, while reaching a similar conclusion of inapplicability of Section 160 CrPC but for different reasons.

6. Court’s Legal Reasoning

6.1 Nature of Proceedings under FEMA – Civil/Regulatory, not Criminal

The Court refers to K.A. Mansoor v. Assistant Director, Directorate of Enforcement (FPA-FE-92/CHN/2017) to explain FEMA’s scheme:

  • FERA, 1973 was a criminal statute with “offences”.
  • FEMA, 1999 replaced FERA and fundamentally altered the regime:
    • Contraventions under FEMA attract civil penalties, not criminal prosecution.
    • Determination of contraventions is done by an Adjudicating Authority.
    • There is a structured appellate hierarchy (Special Director, Appellate Tribunal for Foreign Exchange, etc.).
    • Section 15 FEMA allows for compounding of contraventions.

On this basis, the Court emphasizes that:

FEMA is a regulatory-civil statute; investigations under Section 37 FEMA are primarily for imposition of penalties, not for criminal prosecution.

This civil-regulatory character is central to the Court’s conclusion that civil, not criminal, procedural norms govern the summoning powers under FEMA.

6.2 Distinction between Section 131 and 132 ITA – CPC vs CrPC

The Court carefully differentiates the two ITA provisions:

  • Section 131 ITA – powers regarding discovery, production of evidence, attendance, and examination:
    • Expressly assimilates the powers of a civil court under CPC.
    • Used for summons, production of documents and evidentiary steps.
  • Section 132 ITA – search and seizure:
    • Authorizes physically intrusive search of premises and seizure of assets/documents.
    • Sub-section (13) explicitly imports CrPC provisions on search and seizure.

Therefore:

Summoning and evidence-gathering under Section 131 ITA are governed by CPC; CrPC enters the picture only with search and seizure under Section 132 ITA.

6.3 Reading Section 37 FEMA – The Significance of “etc.”

Section 37 FEMA is titled “Power of search, seizure, etc.” and, through subsection (3), equates ED’s powers with those of Income Tax authorities.

The Court reasons that:

  • Unlike the ITA, FEMA does not split its powers into separate provisions for:
    • summons/discovery/production (analogous to Section 131 ITA); and
    • search and seizure (analogous to Section 132 ITA).
  • The addition of “etc.” in Section 37’s title signals that both:
    • powers to summon and seek documents, and
    • powers of search and seizure
    are encompassed within Section 37.

From this, the Court draws a crucial interpretive conclusion:

  • When ED is exercising summoning and evidentiary powers under Section 37 (via Section 131 ITA), CPC applies.
  • When ED is exercising search and seizure powers under Section 37 (via Section 132 ITA), CrPC applies to those search and seizure operations.

Therefore, CrPC – including Section 160 – does not govern the issuing of summons for attendance and production of documents under Section 37 FEMA; those are governed by the civil court analogy of Section 131 ITA.

6.4 Rejection of Section 160 CrPC Argument

The petitioner had framed her case around Section 160(1) CrPC, arguing:

  • FEMA is a special law but does not provide a procedure for the place of examination of women.
  • By Section 4(2) CrPC, CrPC applies where the special law is silent.
  • Section 37(3) FEMA, via Section 132 ITA, brings in CrPC, including Section 160.
  • Consequently, as a woman witness, she could not be compelled to attend ED’s office and must be examined at her residence.

The Court rejects this for two interrelated reasons:

  1. Misplaced reliance on Section 132 ITA:
    • Section 132 is about search and seizure, not about summoning for evidence.
    • ED’s summons under Section 37 FEMA (read with Section 131 ITA) were for production of documents and recording of statement, not search/seizure.
    • Hence, the chain “FEMA → Section 37(3) → Section 132 ITA → CrPC (including Section 160)” is inapplicable to summons.
  2. Analogy with Section 131 ITA:
    • Powers under Section 37 FEMA for discovery/production of evidence are analogous to Section 131 ITA.
    • Section 131 ITA is expressly governed by CPC, not CrPC.
    • Therefore Section 160 CrPC – a criminal procedural safeguard – cannot be invoked to control FEMA summons for civil-regulatory inquiries.

The Court concludes succinctly in para 42:

“…‘powers regarding discovery and production of evidence’ under Section 37 FEMA are analogous to those under Section 131 ITA, which is governed by Civil Code and therefore, Section 160 Cr.P.C. would not be applicable, as argued by the Petitioner.”

6.5 Distinguishing PMLA and the Supreme Court’s decision in Abhishek Banerjee

ED sought to rely on Abhishek Banerjee v. Directorate of Enforcement (PMLA) to argue that:

  • Summons under a special statute (PMLA/FEMA) are distinct from CrPC, and
  • Section 160 CrPC does not fetter ED’s powers even when women are summoned.

The Court accepts the end result (i.e., CrPC does not control these summons) but declines to import PMLA logic wholesale, holding that:

  • PMLA and FEMA have distinct statutory structures and objectives:
    • PMLA deals with money laundering as a scheduled, criminal offence, leading to criminal prosecution.
    • FEMA deals with regulatory contraventions of foreign exchange laws, leading to civil penalties, not criminal prosecution.
  • Section 50 PMLA confers criminal investigative powers on ED, whereas Section 37 FEMA is framed within a civil-administrative inquiry context.
  • The Supreme Court’s holding in Abhishek Banerjee that Section 50 PMLA overrides or stands apart from CrPC safeguards is based on that distinct criminal framework.

Thus, while the conclusion that Section 160 CrPC does not govern FEMA summons converges with ED’s position, the Court grounds it in:

an analogy to Section 131 ITA and the civil nature of FEMA proceedings, rather than in the PMLA jurisprudence under Section 50.

6.6 Non-acceptance of Fundamental Rights / Fair Investigation Arguments

The petitioner invoked Articles 14, 20 and 21, relying on:

to assert a broad right to fair investigation and fair procedure, including:

  • Supply of all materials/documents relied on by ED before recording her statement; and
  • Information adequate to effectively exercise her right to remain silent under Article 20(3).

The Court, however, does not engage in any extended analysis of these rights-based arguments. It confines its determination to:

  • The nature of FEMA and the scope of Section 37;
  • The (non-)applicability of Section 160 CrPC.

By focusing on the procedural question of which code (CPC/CrPC) governs the summons, the Court effectively sidesteps the broader constitutional claims. The writ petition is dismissed primarily because the legal foundation (Section 160 CrPC) of the relief sought fails.

7. Precedents and Authorities Cited

7.1 K.A. Mansoor v. Assistant Director, Directorate of Enforcement (FPA-FE-92/CHN/2017)

This decision, from the appellate forum under FEMA, is invoked to:

  • Highlight the transition from FERA to FEMA, emphasizing that:
    • FEMA’s regime is one of penalty, not offence;
    • It uses an adjudicatory and appellate apparatus, not a criminal court process.
  • Reinforce that issuance of summons under Section 37 FEMA is a preliminary, investigative measure that does not by itself affect a person’s rights in a penal sense.

This authority supports the Court’s view that FEMA enquiries are civil-regulatory in nature, thereby justifying the application of CPC norms rather than CrPC for summons.

7.2 Avinash Bhosale v. Union Of India & Ors., Bombay High Court, Crl. W.P. No. 2432/2007 (decided 08.10.2008)

In Avinash Bhosale, the Bombay High Court examined whether ED could impound a passport under Section 37 FEMA. Relying on:

  • The definition of “summons” from the Oxford Dictionary of Law; and
  • The scope of Section 131 ITA vis-à-vis CPC (especially Section 30 CPC and Order XI CPC),

the Court held:

  • Officers under Section 131 ITA have no greater powers than a civil court concerning discovery, production, and inspection.
  • Their powers are procedural and evidentiary, constrained by the framework of the CPC.

The Delhi High Court uses this case to:

reinforce its alignment of Section 37 FEMA (for summons and documents) with Section 131 ITA and hence CPC-based procedure.

7.3 P. Giribabu v. Deputy Director of Enforcement, W.P. Nos. 23110 & 23558 of 2009 (AP High Court, decided 26.03.2010)

In P. Giribabu, the question was whether a person summoned at the preliminary investigation stage under FEMA had a right to the assistance of a lawyer.

The High Court held:

  • At the initial stage, officers under FEMA:
    • Are merely collecting material to consider further action;
    • Do not function as a “court”.
  • There is no vested right for the person summoned to be represented by an advocate or chartered accountant during this preliminary stage.

The Delhi High Court uses this precedent to emphasize:

  • The investigative character of Section 37 FEMA proceedings; and
  • That such proceedings are not equated with criminal trials nor subject to all safeguards afforded to accused persons.

7.4 V. Datchinamurthy v. Assistant Director of Inspection, (1984) 149 ITR 341 (Madras High Court)

This case analyzed the role and functions of Income Tax Officers under the ITA and clarified:

  • ITOs’ main job is to assess income and levy tax.
  • To perform this task, they are empowered to:
    • gather information and evidence, and
    • summon witnesses, enforce attendance, issue commissions, etc.
  • These powers under Section 131 ITA are co-extensive with those of a civil court under CPC.

This supports the Delhi High Court’s core thesis that Section 37 FEMA’s evidentiary/summoning powers are civil in nature and thus not governed by CrPC provisions like Section 160.

7.5 Abhishek Banerjee & Anr. v. Directorate of Enforcement, SLP (Crl.) Nos. 2806–2807/2022 (Supreme Court)

Although cited by ED, the Delhi High Court distinguishes this PMLA-based decision:

  • Under Section 50 PMLA, ED’s powers are exercised in the context of a criminal offence (money laundering).
  • The Supreme Court held that such summons are distinct from Section 160 CrPC and not limited by CrPC’s territorial or gender-based restrictions.

The Delhi High Court acknowledges this line of reasoning but highlights that:

FEMA is not a criminal statute like PMLA; instead, the inapplicability of Section 160 CrPC under FEMA is rooted in the civil court analogy (Section 131 ITA) and the statute’s regulatory design, rather than in a sweeping override of CrPC.

7.6 Authorities Cited by the Petitioner (Not Substantively Engaged)

The petitioner relied on several Supreme Court and High Court decisions to underscore the right to a fair investigation and due process (e.g., Youth Bar Association, Madhu Limaye, Babubhai). She also invoked:

  • Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 – where the Supreme Court observed that insisting on a woman appearing at a police station violates the proviso to Section 160(1) CrPC.

However, the Delhi High Court:

  • does **not** dispute these principles in the criminal law context;
  • but holds them inapplicable because **FEMA summons for evidence are not governed by CrPC at all**, thereby treating these cases as distinguishable.

The petitioner also relied heavily on Asmita Agrawal v. Enforcement Directorate, (2002) 61 DRJ 339 (DB), which, on her case, favoured recording of a woman’s statement at her residence. The present judgment, however, does not meaningfully engage with this Division Bench ruling, which is a notable point from a precedent-hierarchy perspective and may be a ground for criticism or appellate scrutiny.

8. Simplifying Key Legal Concepts

8.1 General Law vs Special Law (CrPC vs FEMA/ITA)

  • CrPC is the general procedural law for investigation and trial of criminal offences.
  • Special statutes like FEMA, ITA or PMLA often prescribe their own procedures for investigation and adjudication.
  • Under Section 4(2) CrPC, the CrPC applies to offences under other laws unless those laws provide a different procedure.
  • Here, the Court holds that:
    • FEMA, through Section 37(3) read with Section 131 ITA, creates a distinct procedural framework for summons and evidence collection governed by CPC.
    • Therefore, there is no room for importing Section 160 CrPC for those purposes.

8.2 Civil vs Criminal Investigations

  • Civil/regulatory proceedings (e.g., FEMA, tax adjudication):
    • Aim at assessment, regulation, or imposition of penalties.
    • Do not result in imprisonment by themselves.
    • Are typically governed by CPC-like procedures.
  • Criminal proceedings (e.g., PMLA offences, IPC offences):
    • Can result in conviction, imprisonment and criminal record.
    • Are governed by CrPC.

The Court’s key move is to firmly classify FEMA investigations as civil-regulatory, not criminal, and thereby exclude CrPC safeguards such as Section 160 from the summoning process.

8.3 Summons vs Search and Seizure

  • Summons:
    • A formal directive to a person to appear at a specified place and time, often to give evidence or produce documents.
    • Less intrusive than a physical search.
    • Under Section 131 ITA (and, by analogy, Section 37 FEMA), these are akin to civil court orders.
  • Search and Seizure:
    • Coercive entry into premises and taking possession of documents or assets.
    • More intrusive and more tightly regulated.
    • Under Section 132 ITA (and the “search and seizure” aspect of Section 37 FEMA), CrPC standards apply to ensure procedural fairness.

The Court uses this distinction to say: CrPC protections, including Section 160, are designed around criminal investigations and coercive police-like actions, not around civil summons for evidence under FEMA.

8.4 Protection of Women under Section 160 CrPC

Section 160(1) CrPC states that:

  • Police may summon witnesses for investigation within certain territorial limits.
  • Proviso: “No woman … shall be required to attend at any place other than the place in which such woman … resides.”

In Nandini Satpathy, the Supreme Court strongly condemned requiring women to appear at police stations as contrary to this proviso.

However, in Poonam Gahllot, the Court’s core move is to say that:

This protection, however salutary, is anchored in a criminal-procedural context (police investigation under CrPC) and does not automatically extend to civil-regulatory summons under FEMA, which are governed by CPC.

9. Critical Evaluation

9.1 Strengths of the Judgment

  1. Doctrinal Clarity on FEMA’s Procedural Nature
    The Court offers a relatively clear doctrinal framework:
    • FEMA is civil/regulatory, not criminal.
    • Section 37 FEMA’s evidentiary powers track Section 131 ITA and CPC.
    • CrPC provisions (including Section 160) come into play only to the limited extent that Section 132 ITA (and the search/seizure component of Section 37 FEMA) import them.
    This distinction helps clarify the procedural code applicable to different types of ED actions under FEMA.
  2. Structured Differentiation between FEMA and PMLA
    Rather than simply borrowing PMLA jurisprudence (which is grounded in a criminal law framework), the Court:
    • Recognizes that PMLA and FEMA operate in different normative spaces (criminal vs regulatory);
    • Grounds its conclusion in the civil court analogy of Section 131 ITA instead of a blanket rule of CrPC inapplicability.
    This avoids over-criminalizing FEMA proceedings and maintains doctrinal coherence.
  3. Attention to Textual Nuances of Section 37 FEMA
    Emphasizing the “etc.” in the title of Section 37 and its comprehensive incorporation of Income Tax authorities’ powers is a careful textual approach. It supports the conclusion that Section 37 encompasses both search/seizure and summoning functions, which may be governed by different procedural norms (CrPC for searches, CPC for evidentiary summons).

9.2 Concerns and Points of Tension

  1. Apparent Non-Engagement with Asmita Agrawal (DB)
    The petitioner invoked Asmita Agrawal v. Enforcement Directorate, a Division Bench decision of the same High Court, allegedly supporting the position that women should not be compelled to attend ED offices for interrogation. The present Single Judge:
    • does not substantively analyze or distinguish that Division Bench ruling;
    • does not explicitly explain why its reasoning does not apply to FEMA Section 37 summons.
    This raises a question of precedent hierarchy: ordinarily, a Single Judge is bound by a Division Bench unless the facts or statute are clearly distinguishable or the matter is referred to a larger bench. The omission may be a focal point in any appellate challenge.
  2. Narrow Treatment of Constitutional Fairness Arguments
    The petitioner framed her case partly in terms of:
    • Article 21’s guarantee of fair procedure and fair investigation,
    • Article 20(3) rights against self-incrimination and the right to remain silent,
    • Article 14’s guarantee of equal protection.
    The Court chose not to deeply examine:
    • whether civil-regulatory inquiries under FEMA are nevertheless bound by heightened procedural safeguards when they closely resemble custodial or quasi-criminal interrogations; or
    • whether fairness may require prior disclosure of materials relied upon before recording a statement that might later be used against the person in other proceedings (including potential criminal ones).
    While the CrPC–CPC distinction is doctrinally neat, it leaves somewhat under-explored the substantive due process dimension of ED’s interrogation practices.
  3. Gender-Sensitive Interpretation and the Protective Purpose of Section 160 CrPC
    Section 160 CrPC embodies a protective policy for women and other vulnerable persons (e.g., minors). Even if strictly confined to CrPC-governed investigations, one might argue:
    • That where State agencies conduct coercive interrogations in an office environment with significant power imbalance, constitutional values could support extending similar protections by analogy, especially in a civil-regulatory statute that does not expressly exclude such protection.
    • FEMA’s silence on special safeguards for women might be seen not as a bar but as an invitation to harmonize it with gender-sensitive protections under general law and the Constitution.
    The judgment takes a more formalist approach, treating the CPC–CrPC divide as determinative, and does not significantly address the normative, rights-based argument for extending Section 160-type protections by analogy.
  4. Possible Practical Consequences for Women Summoned by ED
    By holding that ED can insist on personal appearance of women in its office for FEMA investigations:
    • The Court endorses a broad coercive reach for ED, tempered only by general law, not specific gender-based statutory protections.
    • Concerns about harassment, intimidation, or undue pressure in office interrogations – particularly highlighted by the petitioner’s factual narration – are not squarely addressed beyond stating the legal framework.
    While the Court is not adjudicating allegations of misconduct in the 2018 search per se, the absence of discussion on safeguards against abuse may be viewed as a gap from a rights-based perspective.

10. Likely Impact of the Decision

10.1 On ED’s Investigative Practice under FEMA

  • ED is now judicially affirmed, at least within the territorial jurisdiction of the Delhi High Court, as having the power to:
    • compel personal attendance of women at its office in FEMA investigations under Section 37 read with Section 131 ITA;
    • record their statements and demand production of documents without being constrained by Section 160 CrPC.
  • This likely strengthens ED’s operational flexibility and investigative leverage in foreign exchange contravention cases.

10.2 On Women Summoned under FEMA

  • Women, like men, may legally be required to:
    • attend ED offices for questioning;
    • tender statements that may have serious regulatory or even collateral consequences (e.g., in other proceedings).
  • They cannot successfully rely on Section 160 CrPC to insist on examination at their residence in FEMA matters.
  • However, gender-based protections may still arise from:
    • internal ED guidelines (if any),
    • broader constitutional principles,
    • other statutory protections (e.g., relating to dignity, harassment, or sexual offences),
    • and can be developed further in future litigation.

10.3 On the Boundary Between Civil and Criminal Investigations

  • The judgment contributes to an evolving jurisprudence drawing sharp lines between civil-regulatory and criminal processes in fiscal and economic legislation.
  • It underscores that:
    • Civil inquiries (tax/FEMA) – CPC-based, flexible, fewer CrPC-like protections;
    • Criminal investigations (PMLA/IPC) – CrPC-based, but may also be subject to special overriding provisions.
  • Future cases may test the scope of such classifications, especially where civil-regulatory inquiries feed into or parallel criminal prosecutions.

10.4 Potential for Appellate Review and Harmonization

  • Given the potential tension with Asmita Agrawal and with gender-protective readings of Section 160 CrPC, there is room for:
    • Appeal before a Division Bench of the Delhi High Court; or
    • Challenge before the Supreme Court, especially if similar issues arise in other High Courts.
  • Higher courts may be called upon to:
    • Harmonize FEMA, PMLA, CrPC and constitutional norms;
    • Clarify whether and to what extent gender-specific procedural protections should apply in non-criminal but coercive regulatory investigations.

11. Conclusion

The Delhi High Court in Smt. Poonam Gahllot v. Directorate of Enforcement establishes an important precedent on the procedural law governing FEMA investigations. The key holding is that:

Summons issued by ED under Section 37 FEMA, read with Section 131 ITA, are governed by the Code of Civil Procedure, not by the Code of Criminal Procedure. Consequently, the gender- and place-specific safeguard in Section 160 CrPC – which prevents women from being required to attend anywhere other than their residence in a criminal investigation – does not apply to such FEMA summons.

By firmly categorizing FEMA proceedings as civil-regulatory and associating ED’s powers under Section 37 FEMA with Section 131 ITA rather than Section 132 ITA, the Court concludes that ED can lawfully insist on a woman’s personal appearance at its office for recording of her statement and production of documents.

The decision strengthens ED’s investigative latitude in foreign exchange matters, while leaving unresolved some broader questions about:

  • the adaptation of gender-sensitive safeguards from criminal procedure to coercive regulatory investigations,
  • the interaction with earlier precedents such as Asmita Agrawal, and
  • the contours of constitutional fairness (Articles 14, 20, 21) in non-criminal but intrusive inquiries.

In the broader legal landscape, the judgment marks a significant step in delineating the procedural boundaries of FEMA and contributes to the ongoing effort to map the interface between civil-regulatory enforcement, criminal procedure, and fundamental rights in India’s economic laws.

Case Details

Year: 2025
Court: Delhi High Court

Judge(s)

Justice Neena Bansal Krishna

Advocates

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