Section 108 BNSS: Magistrate may direct search in his presence (Formerly Section 103 CrPC)

Section 108 of Bharatiya Nagarik Suraksha Sanhita, 2023: Magistrate may direct search in his presence

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant.

Legal Commentary & Landmark Judgments: Section 108

Section 108 empowers any Magistrate to direct a search to be made in their presence of any place for the search of which they are competent to issue a search-warrant.

Competent Magistrate: A Magistrate having jurisdiction to issue a search warrant for that place.
Personal Presence: Personally directing and supervising the search on site.
Dispensation with Formal Warrant: The Magistrate's physical presence and direct oral order replace the requirement of a formal paper warrant.

Key Landmark Precedents:

State of Punjab v. Baldev Singh (1999) 6 SCC 172: The Supreme Court held that a search conducted in the physical presence of a Magistrate carries a higher degree of credibility, ensuring fairness and preventing fabrication.
Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627: Reiterated that magistrates act as judicial guardians during searches conducted in their immediate presence.

Courtroom Practice & Strategic Litigation Guidance:

When a search is conducted under Section 108, the Magistrate must draw up a contemporaneous panchnama under their personal signature. Challenge searches where the Magistrate remained sitting in a vehicle outside while police ransacked premises.