FEMA investigative summons: no automatic right to counsel or oath-based examination at the preliminary stage.

A Madras HC decision on FEMA summons proceedings states that a person examined during preliminary investigation has no right, as of course, to be accompanied by an advocate during recording of a statement. The Court treated the enquiry under section 37 as investigative rather than adjudicatory, and held that legal assistance may arise later if adjudication proceedings begin. It also found no enforceable right under the Oaths Act to insist on oath administration at that stage, and no right under the Advocates Act to demand counsel's presence during investigation.

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Issues: (i) Whether a person summoned under section 37 of the Foreign Exchange Management Act, 1999 at the stage of preliminary investigation is entitled to be accompanied by an advocate of choice during examination and recording of statement. (ii) Whether the Oaths Act, 1969 and the Advocates Act, 1961 confer a right to insist on oath administration or legal representation at that stage.

Issue (i): Whether a person summoned under section 37 of the Foreign Exchange Management Act, 1999 at the stage of preliminary investigation is entitled to be accompanied by an advocate of choice during examination and recording of statement.

Analysis: Section 37(3) of FEMA gives the Enforcement officers powers akin to those of income-tax authorities, and the enquiry contemplated at that stage is for collection of materials and investigation, not adjudication. The Court relied on the principle that such investigative questioning is not a court-like proceeding and that the person summoned is not entitled, as of right, to the presence of counsel during the recording of statement. The protection of legal assistance arises later, if and when adjudication proceedings are initiated.

Conclusion: The request for the presence of an advocate during preliminary investigation was rejected and is against the assessee/petitioner.

Issue (ii): Whether the Oaths Act, 1969 and the Advocates Act, 1961 confer a right to insist on oath administration or legal representation at that stage.

Analysis: The Court held that the reliance on the Oaths Act was misplaced because the investigation was still at a preliminary stage and the question of administering oath did not arise. It also held that section 30 of the Advocates Act concerns the right of advocates to practise before specified fora, but it does not create a corresponding right for a person summoned for investigation to demand an advocate's presence. The constitutional fairness argument was also negatived in light of the settled position on investigative summons.

Conclusion: No enforceable right to insist on oath-based examination or counsel's presence at the investigative stage was established, against the assessee/petitioner.

Final Conclusion: The writ petitions challenging refusal to permit an advocate during FEMA summons proceedings failed, and the investigative authority's stand was upheld.

Ratio Decidendi: A person summoned for preliminary investigation under FEMA has no right to the of counsel during recording of statement, and the safeguards of legal assistance arise only at the stage of adjudication or other proceedings where the law so provides.

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