Internal and Forensic Audit · Forensic Audit and Indian Evidence Law

Repeal and Savings under the Adhiniyam (Section 170) of the Bharatiya Sakshya Adhiniyam

Updated 11 October 2026 · Fact-checked

Section 170 repeals the Indian Evidence Act, 1872. It then saves pending matters: any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the 1872 Act, as in force then, as if the Adhiniyam had not come into force.

Understand Repeal and Savings under the Adhiniyam (Section 170)

A new law replaces an old one. The question is what happens to cases already running. Section 170 answers it in two parts: a repeal and a saving.

Section 170(1) says the Indian Evidence Act, 1872 is repealed. That is the clean break. For matters that start after the Adhiniyam begins, the old Act no longer applies.

Section 170(2) is the saving clause. It begins with "Notwithstanding such repeal". It says that if, immediately before the date the Adhiniyam comes into force, any application, trial, inquiry, investigation, proceeding or appeal is pending, it is dealt with under the 1872 Act, as in force immediately before that commencement, as if the Adhiniyam had not come into force.

The commencement date comes from Section 1(3). The Central Government was to appoint it by notification. The official footnote records it as 1st July, 2024, by notification S.O. 849(E) dated 23rd February, 2024. So the test is simple: was the matter pending immediately before 1 July 2024? If yes, the old Act governs it. If no, the Adhiniyam governs.

For a forensic auditor, this matters because the evidence you collect will be tested under one regime or the other. You must know which law your report will face.

Key rules to remember

Repeal rule: Section 170(1): the Indian Evidence Act, 1872 is repealed; The old Act is removed from the statute book, subject to the saving in sub-section (2).
Savings rule: Pending immediately before commencement → governed by the 1872 Act as then in force; Covers any application, trial, inquiry, investigation, proceeding or appeal. Treated as if the Adhiniyam had not come into force.
Commencement: Section 1(3): date appointed by notification; notified as 1st July, 2024; The date is from the official footnote (S.O. 849(E), 23rd February, 2024). Use it as the cut-off for the pending test.
Scope of application: Section 1(2): all judicial proceedings in or before any Court, including Courts-martial; not affidavits; not proceedings before an arbitrator; Useful when asked where the Adhiniyam applies at all.

How to solve Repeal and Savings under the Adhiniyam (Section 170) questions

Use this method for any question on repeal, savings or pending proceedings under the Adhiniyam.

1State the provision: Section 170(1) repeals the Indian Evidence Act, 1872.
2State the saving in Section 170(2) in its own words, listing the six kinds of matter: application, trial, inquiry, investigation, proceeding, appeal.
3Fix the cut-off: the date the Adhiniyam came into force under Section 1(3), notified as 1st July, 2024.
4Analyse the facts: was the matter pending immediately before that date? Note when it was filed or began.
5Apply the rule: pending means the 1872 Act as then in force; not pending means the Adhiniyam.
6Check the forum: the Adhiniyam does not apply to affidavits or to proceedings before an arbitrator (Section 1(2)).
7Conclude clearly and add a practical point, such as how the auditor should prepare and present evidence.

Quickest way: Pending-before-commencement test

When to use it: Use it for short fact-based questions where you must name the governing law.

Find the date the matter began and the cut-off date, 1st July, 2024.
If it was pending before the cut-off, write: governed by the Indian Evidence Act, 1872 under Section 170(2).
If it began later, write: governed by the Bharatiya Sakshya Adhiniyam, 2023.
Quote the phrase "as if this Adhiniyam had not come into force" to support the first answer.

Common mistakes in Repeal and Savings under the Adhiniyam (Section 170)

Saying the 1872 Act is repealed so it never applies again.
Students read only Section 170(1).
Fix: Always read sub-section (2). The repeal is subject to the saving for pending matters.
Applying the Adhiniyam to a trial pending before commencement.
Students assume a new law applies to everything from its date.
Fix: Ask whether the trial was pending immediately before commencement. If yes, the 1872 Act governs.
Listing only trials and appeals as saved matters.
Students recall the common ones and skip the rest.
Fix: Remember all six: application, trial, inquiry, investigation, proceeding, appeal.
Giving the wrong commencement date or omitting it.
The date sits in Section 1(3) and its footnote, not in Section 170.
Fix: Link both sections. The notified date is 1st July, 2024.
Forgetting that the old Act applies "as in force immediately before such commencement".
Students think any later amendment would also apply.
Fix: Write the exact words: the 1872 Act as in force immediately before commencement.

Worked examples

Example 1

A civil suit for recovery of dues was filed against Sharma Textiles Pvt Ltd in March 2024 and is still being tried. Which law governs the admissibility of documents in this trial?

Show the solution

Provision: Section 170(1) repeals the Indian Evidence Act, 1872; Section 170(2) saves pending proceedings.
Cut-off: the Adhiniyam came into force on 1st July, 2024 (Section 1(3), as notified).
Facts: the suit was filed in March 2024, so it was pending immediately before commencement.
Application: a pending trial or proceeding is dealt with under the 1872 Act as then in force, as if the Adhiniyam had not come into force.
Conclusion: the 1872 Act governs the trial.

Answer: The Indian Evidence Act, 1872, as in force immediately before 1st July, 2024, governs the suit under Section 170(2).

Example 2

A forensic auditor is engaged in October 2024 to examine a fraud at Mehta Infra Ltd. A criminal complaint is filed in November 2024. Which law will govern evidence in the trial, and what should the auditor do?

Show the solution

Provision: Section 170(2) saves only matters pending immediately before commencement.
Cut-off: 1st July, 2024.
Facts: the engagement and the complaint both came after that date, so nothing was pending before it.
Application: the saving does not apply, and the 1872 Act is repealed, so the Adhiniyam applies.
Practical point: define electronic records as documents and prove their contents as the Adhiniyam requires (Sections 2(1)(d) and 62). Keep originals, and note the grounds for secondary evidence under Section 60 if originals are unavailable.
Conclusion: the Bharatiya Sakshya Adhiniyam, 2023 governs.

Answer: The Bharatiya Sakshya Adhiniyam, 2023 governs because the matter began after commencement, and the auditor should prepare evidence to meet its standards.

Exam tips

Write both sub-sections: repeal first, then the saving. Examiners expect the pair.
In case questions, always extract the date and compare it with 1st July, 2024 before concluding.
Quote the key phrase "as if this Adhiniyam had not come into force" in your answer.
Mention Section 1(3) for commencement and Section 1(2) if the forum is an arbitrator or an affidavit.
End with a practical forensic point, such as preserving evidence for whichever Act applies.

Practice questions from Forensic Audit and Indian Evidence Law

Repeal and Savings under the Adhiniyam (Section 170): frequently asked questions

What does Section 170 of the Bharatiya Sakshya Adhiniyam provide?

Sub-section (1) repeals the Indian Evidence Act, 1872. Sub-section (2) saves pending applications, trials, inquiries, investigations, proceedings and appeals, which continue under the 1872 Act.

Which matters are treated as pending under Section 170(2)?

Any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force. The notified commencement date is 1st July, 2024.

Does the Adhiniyam apply to arbitration proceedings?

No. Section 1(2) says it applies to judicial proceedings in or before any Court, but not to affidavits or to proceedings before an arbitrator.

Which Act applies to a new case filed after the commencement date?

The Bharatiya Sakshya Adhiniyam, 2023 applies, because the 1872 Act is repealed and the saving covers only matters pending before commencement.