CrimPro (Dean Tan) (2022)

FROM THE ANNOTATIONS OF DEAN TAN AND DISCUSSIONS OF ATTY DERIJE
The Revised Rules of Court CRIMINAL PROCEDURE
Sources of Rules on Criminal Procedure (Tan)

PART III 1) 1987 Philippine Constitution
REVISED RULES OF CRIMINAL 2) Rule 110 – 127 of the Revised Rules of
Criminal Procedure
PROCEDURE 3) Other laws
4) Provisions of Civil Code (Arts 32, 33, 34 and
RULE 110 – 127 2176)
5) Provisions of the RPC (Art 2, 100 and 125)
RULES OF COURT 6) Manual of prosecutors
7) DOJ circulars
Section 3. Cases governed. — These Rules shall govern 8) Administrative Memorandums
the procedure to be observed in actions, civil or
criminal and special proceedings. CRIMINAL LITIGATION PROCESS
(a) A civil action is one by which a party sues another Laws relating to the criminal litigation process
for the enforcement or protection of a right, or the 1) Rule 110 – 127 of the Revised Rules of
prevention or redress of a wrong, (1a, R2) Criminal Procedure
2) Issuances or circulars released by the SC which
A civil action may either be ordinary or special. Both
are governed by the rules for ordinary civil actions, supplements, amend or modify the Rules of
subject to the specific rules prescribed for a special Court
civil action. (n)
PRELIMINARY CONSIDERATIONS
(b) A criminal action is one by which the State Commission of a crime
prosecutes a person for an act or omission The criminal litigation process presupposes that
punishable by law. (n) there is a crime that has been committed or there
is alleged to be committed. Otherwise, if there is no
(c) A special proceeding is a remedy by which a party crime the process will not begin in the first place.
seeks to establish a status, a right, or a particular fact.
(2a, R2) Commencement of the application of criminal
procedure
Application of Rules of Criminal Procedure The application of the criminal procedure will not be
The rules of criminal procedure are given retroactive triggered by the commission of the crime or the
application insofar as they benefit the accused allegation of a crime, there must be contact with the
law.
Application of other special rules of procedure in
criminal cases Contact with the law
1) Child witness examination rule It is that phase after the commission of the crime
2) Electronic device rule where the criminal act is brought to the attention of the
Q: Are text messages admissible in evidence authorities and the offender is arrested either by a
in criminal cases? duly issued warrant or a valid warrantless arrest. It
A: Yes triggers the criminal litigation process.
3) Judicial affidavit rule
 When the maximum penalty imposable Other ways in coming in contact with the law
does not exceed 6 years, or when the 1) Valid arrest with a warrant
accused agrees to the use of judicial 2) Valid search with a warrant
affidavits irrespective of the penalty 3) Search and seizure conducted without a
involved, and with respect to the civil warrant under recognized exceptions to the
aspect of the action general rule
4) Revised Rules of Procedure in Intellectual 4) In instances covered by the Katarungang
Property Rights Pambarangay Law under the Local
5) Revised guidelines on continuous trial in Government Code
criminal cases
XPN: criminal cases falling under the rules on Institution of the criminal action; preliminary
summary procedure investigation
6) Rules on Cybercrime Warrants Preliminary investigation - is an inquiry aimed
7) Rules on writ of amparo whether a crime has been committed, whether the
8) Rules of writ of habeas data person complained of is probably guilty thereof and
9) Rules of procedure in environmental cases hence, must be held for trial. It is aimed in finding
probable cause to charge the respondent in court. Up
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Criminal Procedure | VENTEROSO

until this point all these processes under the criminal civil action, then the civil action ex delicto is
litigation process are conducted by the executive deemed instituted in the criminal case.
branch of the government (police, enforcement
officers, private persons). Trial
The result of the pretrial conference shall control the
proceedings during trial. Within thirty days from the
receipt of the pre-trial order, trial shall commence.
1) The state is first to present evidence.
2) The accused in a proper case may opt to file a
demurrer of evidence on the ground of
insufficiency of evidence.
 It is only when a criminal information is filed Demurrer of evidence – that the state failed
in court that a criminal case is already brought to present evidence that prove beyond
to the judicial system. It is now the court which reasonable doubt that the elements of a crime
has the exclusive jurisdiction or power to are present.
dispose of the criminal case 3) If there is no demurrer, it is the time the
accused presents his evidence.
Duty of the court upon filing of the complaint or 4) If there is a reverse trial order, when the
information accused has evidence of exempting
1) Not yet arrested – to determine whether there circumstances, it will be the defense who will
is probable cause to issue a warrant of arrest show first the evidence
2) Already arrested – issue a commitment 5) In any case, when both parties have already
order presented, the Court may allow the parties to
present additional evidence for rebuttal
Availment of provisional remedies
6) Judgment will follow
After the filing of the information or the complaint, the
party may avail provisional remedies such as
Judgment
preliminary attachment, injunction, and temporary
A judgment is the adjudication by the court on the guilt
restraining order.
or innocence of the accused and the imposition of the
penalty.
Bail
GR: The judgment must be promulgated by reading it
Bail may be availed before or after the filing of an
in the presence of the accused and any judge in which
information or complaint in court. A person under the
it was rendered
custody of law may file or apply for bail before or after
XPN: Unless it is for a light offense, in which case
he is formally charged criminally. Bail is a constitutional
judgment may be pronounced in the presence of the
right and granted for temporary liberty.
accused’s counsel or representative.
Arraignment
Post-judgment remedies
Whether or not the accused is under detention or out
The person convicted is allowed by the Rules of Court
of bail, the court shall thereafter set the case for
certain remedies to modify or reverse the judgment of
arraignment.
conviction within the period to appeal. Under existing
law, the period to appeal is within 15 days from notice
Arraignment - is the formal mode and manner of
of the judgment or final order. Within the same period,
implementing the constitutional right of an accused to
the court may at its own discretion or upon motion of
be informed of the nature and cause of the accusations
the accused reopen the hearing to avoid miscarriage of
against him. Without arraignment, the accused is not
justice. The accused may also move for a
deemed to have been informed of such accusation. It
reconsideration or new trial.
will be a violation of his right to be informed.
Otherwise, if the accused has no further action, the
Pre-trial
conviction will become final and judgment will be
During pre-trial and cases where it is allowed to be
entered. It will be passed back to the executive branch
settled, the court usually issue an order that it will go to
for the execution of penalty.
the mediation before it will continue. But in most of
the cases that are not covered by the court annex
Entry of judgment
mediation, then it will proceed to pre-trial where they
When all remedies have been exhausted and the
will discuss plea bargaining, stipulation of facts,
judgement has become final, the same shall be entered
marking of evidence, waiver of objections to
in accordance with existing rules.
admissibility, possible modification of the order of
trial, and such other matters that will promote a fair
BASIC CONCEPTS
and expeditious trial of the criminal and civil aspect. If
there was no reservation on the filing of a separate
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Criminal procedure - Defined as the rules of law The system of criminal procedure in our jurisdiction is
governing the procedures by which crimes are accusatorial or adversarial in contrast with the
investigated, prosecuted, adjudicated and punished inquisitorial system of procedure.
Procedural law as applied to criminal law provides or As a general rule a court proceeding in our judicial
regulates the steps by which one who committed the set-up is accusatorial or adversary and not
crime is to be punish. (People v. Lacson) inquisitorial in nature. It contemplates two
contending parties before the court, which hears
Criminal law v. criminal procedure them impartially and renders judgment only after
Criminal law Criminal procedure trial. This basic philosophy would be violated if a
Substantive law Procedural law judge were permitted to act as inquisitor, pursue his
Defines crimes, treats of Provides for how crimes own independent investigation, arrive at a
its nature, and provides are investigated, conclusion ex-parte, and then summon the party
for its penalties prosecuted, adjudicated affected so as to enable him, if that were still
and punished possible, to show that the conclusion thus arrived at
Statutes imposing Network of laws and is without justification. (Queto v. Catolico)
penalty, fine and rules which governs the
punishment for certain procedural Adversarial v. inquisitorial system
offenses of a public administration of Accusatorial system Inquisitorial system
nature or wrongs criminal justice The role of the judge is The role of the judge is
committed against the passive; he will only rely active and is not limited
state largely on the evidence to the evidence
presented by both sides presented before him;
The ultimate goal of criminal procedure and will render to acquit he is allowed to actively
It is not to send people to jail, but to do justice. of convict; he may seek question the accused or
Criminal procedure has the imposing task of balancing clarificatory questions witness
clashing societal interest primarily between those of the The counsel is active The counsel is passive;
the most they can do is
government or the state and those of the individual.
to object against the
constitutional rights of
Criminal procedure, therefore, has an ultimate goal of their clients
harmonizing the governmental functions of
maintaining peace and order and protecting JURISDICTION
constitutional rights of its citizens.
Jurisdiction – defined as the power of the court to
Criminal provisions also make sure to limit the hear and decide cases and to execute judgment thereon.
immense power of the state only up to the point that
the state won’t violate the constitutional rights of the When should the issues of jurisdiction be raised?
individuals Jurisdiction can be raised at any stage of the
proceedings, even on appeal, and is not lost by waiver
Construction of the Rules of Court or estoppel.
Section 6. Construction. — These Rules shall be
liberally construed in order to promote their To whom is it vested?
objective of securing a just, speedy and inexpensive It is vested in the court and not the judge
disposition of every action and proceeding. (2a)
What law should be applied to determine
In dubio pro reo – when there is doubt, the case should
jurisdiction in connection with the commission of
be resolved in favor of the accused
the crime?
Jurisdiction being a matter of substantive law, the
Since the appeal involves criminal cases, and the
established rule is that the statute in force at the time
possibility of a person being deprived of liberty due
to a procedural lapse militates against the Court’s of the commencement of the action determines
dispensation of justice, the Court grants petitioner’s the jurisdiction of the court.
plea for a relaxation of the Rules. For rules of
procedure must be viewed as tools to facilitate the Classification of jurisdiction
attainment of justice, such that any rigid and 1) General – The power of the court to adjudicate
strict application thereof which results in all controversies except those expressly
technicalities tending to frustrate substantial withheld from the plenary powers of the court.
justice must always be avoided. (Cariaga v. It extends to all controversies which may be
People) brought before a court within the legal bounds
of rights and remedies
Nature of criminal procedure 2) Special or limited – one which restricts the
court’s jurisdiction only to particular cases and
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subject to such limitations as may be provided 3) The court must have jurisdiction over the place
by the governing law. or territory where the crime is committed
3) Original – The power of the court to take
judicial cognizance of a case instituted for Beyond the pale of disagreement is the legal tenet
judicial action for the first time under the that a court acquires jurisdiction to try a criminal
conditions provided by the law case only when the following requisites concur:
4) Exclusive – the power to adjudicate a case or 1) the offense is one which the court is by law
proceeding to the exclusion of all other courts authorized to take cognizance of,
at that stage (Jurisdiction over the subject matter)
5) Exclusive original – the power of the court to 2) the offense must have been committed
within its territorial jurisdiction, and
take judicial cognizance of a case instituted for
(Jurisdiction over the territory)
judicial action for the first time under the 3) the person charged with the offense must
conditions provided by the law, and to the have been brought in to its forum for trial,
exclusion of other all other courts forcibly by warrant of arrest or upon his
6) Appellate – The power and authority conferred voluntary submission to the court.
upon a superior court to rehear and determine (Jurisdiction over the person of the
causes which have been tried in lower courts, accused)
the cognizance which a superior court takes of (Antiporda Jr v. Garchitorena)
a case removed to it, by appeal or a writ of
error, from the decision of a lower court, or the  The concurrence of all of the 3 matters is
review by a superior court of the final judgment essential in order for the court to proceed
or order of some lower courts to exercise its jurisdiction
7) Concurrent – (confluent or coordinate
jurisdiction), the power conferred upon Being a civil liability arising from the offense
different courts, whether of the same or charged, the governing law is the Rules of Criminal
different ranks, to take cognizance at the same Procedure, not the civil procedure rules which
stage of the same case in the same or different pertain to civil action arising from the initiatory
judicial territories. pleading that gives rise to the suit. (Cruz v. CA)
8) Delegated
9) Territorial Criminal jurisdiction over the subject matter
Jurisdiction over the subject matter – power to hear
and determine the general class to which the
REQUISITES FOR THE EXERCISE OF proceedings in question belong
CRIMINAL JURISDICTION
Two-pronged process
Criminal Jurisdiction- power and authority to hear 1) How the criminal jurisdiction is conferred
and try a particular offense and impose the punishment  A question of law
for it (Antiporda Jr v. Garchitorena)  Not procedural but substantive
 Purports that there must be a law
REVIEW: which grants a particular court/s
Due process in criminal proceedings: the jurisdiction to try a specific crime
1) That the court or tribunal trying the case is or case. Provisions of the law must
properly clothed with judicial power to hear be inquired into.
and determine the matter before it. (Court of  If a court has no subject matter
competent jurisdiction) jurisdiction then it has no power or
2) That jurisdiction is lawfully acquired by it over authority to hear or to determine the
the person of the accused. (Within authority issues or the facts and the law
and proceeded against the orderly process pertaining to that particular case. Any
of the law) judgment, order, or resolution, which
3) That the accused is given the opportunity to be was issued by that particular court will
heard and the judgment is rendered upon be considered void and cannot be
lawful hearing (notice and hearing) given effect.
3 Matters of Jurisdiction Other concepts of subject matter

1) The court must be clothed with proper jurisdiction
jurisdiction over the subject matter of the  It cannot be conferred by
offense charged consent or acquiescence
2) The court must have validly acquired  It cannot be acquired through
jurisdiction over the person of the accused waiver or enlarged by omission
either by warrant of arrest or voluntary of the parties
submission  It is conferred by law
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2) How the subject matter jurisdiction is to be all that it can to do in the exercise of that
determined jurisdiction
 For the court to determine whether it
has jurisdiction, it must look into the XPNs:
allegations of the written accusation for 1) Statute expressly provides
it to know whether or not the offense 2) Statute is construed to the effect that it is
charged therein is within its jurisdiction intended to operate on actions pending before
as conferred by law. its enactment
What it the remedy of the accused if the court has Criminal jurisdiction over the territory
no jurisdiction over the subject matter of the Territorial jurisdiction - in criminal cases, is the
offense? territory, where the court has jurisdiction to take
It shall be a ground for a motion to quash under Sec cognizance or to try the offense allegedly committed
3, Rule 117 and the case will be dismissed therein by the accused.
Case law has it that in order to determine the How is the territorial jurisdiction of the court
jurisdiction of the court in criminal cases, the determined?
complaint or Information must be examined for the 1) Geographical limits of the territory over which
purpose of ascertaining whether or not the facts set it presides
out therein and the prescribed period provided for 2) The actions it is empowered to hear and decide
by law are within the jurisdiction of the court, and
where the said Information or complaint is filed. It The place where the crime was committed
is settled that the jurisdiction of the court in determines not only the venue of the action but is an
criminal cases is determined by the allegations essential element of jurisdiction. It is a
of the complaint or Information and not by the fundamental rule that for jurisdiction to be
findings based on the evidence of the court after acquired by courts in criminal cases, the offense
trial. Jurisdiction is conferred only by the should have been committed or any one of its
Constitution or by the law in force at the time of essential ingredients should have taken place
the filing of the Information or complaint. Once within the territorial jurisdiction of the court.
jurisdiction is vested in the court, it is retained up to Territorial jurisdiction in criminal cases is the
the end of the litigation. (Mobilia Products v. territory where the court has jurisdiction to take
Umezawa) cognizance or to try the offense allegedly committed
therein by the accused. Thus, it cannot take
Principle of adherence to jurisdiction or jurisdiction over a person charged with an offense
continuing jurisdiction allegedly committed outside of that limited territory.
Concept Furthermore, the jurisdiction of a court over the
Where a court has already obtained and is exercising criminal case is determined by the allegations in the
jurisdiction over a controversy, its jurisdiction to complaint or information. And once it is so shown,
proceed to the final determination of the cause is not the court may validly take cognizance of the case.
affected by new legislation placing jurisdiction over However, if the evidence adduced during the
such proceedings in another tribunal unless the trial shows that the offense was committed
statute expressly provides, or is construed to the somewhere else, the court should dismiss the
effect that it is intended to operate on actions action for want of jurisdiction. (Treñas v.
pending before its enactment. People)
Indeed, R.A. No. 7691 contains retroactive Territorial jurisdiction Subject matter
provisions. However, these only apply to civil cases jurisdiction
that have not yet reached the pre-trial stage. Neither Principle of adherence Principle of adherence
from an express proviso nor by implication can to jurisdiction cannot be to jurisdiction can be
it be construed that R.A. No. 7691 has applied applied
retroactive application to criminal cases
pending or decided by the Regional Trial Courts What it the remedy of the accused if the court has
prior to its effectivity. The jurisdiction of the RTC no jurisdiction over the subject matter of the
over the case attached upon the commencement of
offense?
the action by the filing of the Information and could
not be ousted by the passage of R.A. No. 7691 It shall be a ground for a motion to quash under Sec
reapportioning the jurisdiction of inferior courts, the 3, Rule 117 and the case will be dismissed
application of which to criminal cases is prospective
in nature (Palana v. People) Criminal jurisdiction over the person of the
accused
 The jurisdiction of the court is referred to as How jurisdiction over the person of the accused
continuing in view of the general principle that acquired
once a court has acquired jurisdiction, that [A]n accused cannot seek any judicial relief if he does
jurisdiction continues until the court has done not submit his person to the jurisdiction of the court.
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Jurisdiction over the person of the accused may be Custody of the law Jurisdiction over the
acquired either through compulsory process, person of the accused
such as warrant of arrest, or through his voluntary Signifies restraint on the Acquired compulsorily
appearance, such as when he surrenders to the person, who is thereby (arrest) or voluntarily
police or to the court. It is only when the court has deprived of his own will (voluntary submission)
already acquired jurisdiction over his person that an and liberty, binding him
accused may invoke the processes of the court to become obedient to
the will of the law
(Miranda v. Tuliao)
Custody over the body Jurisdiction over the
of the accused person of the accused
 It is a settled doctrine that jurisdiction over the A person applying for A person applying for
person of the accused is acquired upon the admission to bail must admission to bail does
1) arrest or apprehension with or without be in the custody of the not necessarily have to
warrant or law or otherwise be already within the
2) his voluntary appearance or submission to deprived of his liberty. jurisdiction of the Court
the jurisdiction of the court.
 Either by himself or with a counsel What it the remedy of the accused if the court has
 GR: It is when the accused asks for no jurisdiction over theperson?
affirmative relief from the court It shall be a ground for a motion to quash under Sec
o Filing of a motion to quash 3, Rule 117 and the case will be dismissed
o Filing motion for dismissal
o Filing of motion for the OBJECTIONS ON JURISDICTIONAL
determination of probable GROUNDS
cause Jurisdiction over the subject matter
o Accused enters into a counsel- GR: When an objection is based on the ground that
assisted plea and actively the courts lack jurisdiction over the subject matter,
participates in the trial and such objection may be raised or considered motu
presents evidence proprio by the court on its own discretion at any
XPN: If precisely the seeking of the stage of the proceedings and even on the appeal.
affirmative relief is through
XPN: The party may be estopped for reasons of
questioning the jurisdiction of the
public policy as when he initially invokes the
court, then that will no longer be jurisdiction of the court and then later on repudiates
deemed as a voluntary submission to that same jurisdiction. This is a limited exception.
the jurisdiction of the court. (Tijam v. Sibonghanoy)
Where the appearance is by motion Rules on estoppel on the question of jurisdiction

for the purpose of objecting to the The operation of the principle of estoppel
jurisdiction of the court over the on the question of jurisdiction seemingly depends
person, it must be for the sole and upon whether the lower court actually had
separate purpose of objecting to the jurisdiction or not.
jurisdiction. If the appearance is for
any other purpose, the defendant is 1) If it had no jurisdiction, but the case was
deemed to have voluntarily tried and decided upon the theory that it had
submitted himself to the jurisdiction jurisdiction, the parties are not barred, on
of the court. Such appearance gives appeal, from assailing such jurisdiction, for
the court jurisdiction over the the same must exist as a matter of law and
person of the accused. (Cojuangco may not be conferred by consent of the
v. Sandiganbayan) parties or by estoppel.
Custody of law v jurisdiction over the person of the 2) However, if the lower court had jurisdiction,
accused and the case was heard and decided upon a
 Being in custody of the law is not given theory, such, for instance, as that the
necessarily being under jurisdiction of court had no jurisdiction, the party who
the court. induced it to adopt such theory will not
Custody of the law is required before the court can be permitted, on appeal, to assume an
act upon the application for bail, but is not required inconsistent position - that the lower
for the adjudication of other reliefs sought by court had jurisdiction. Here, the principle
the defendant where the mere application of estoppel applies.
therefor constitutes a waiver of the defense of
lack of jurisdiction over the person of the The rule that jurisdiction is conferred by law
accused. (Miranda v. Tuliao) and does not depend upon the will of the parties,
has no bearing thereon. (Cabrera v. Clarin,
citing Tijam v. Sibonghanoy)
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Jurisdiction of the person of the accused  is the relief sought "[w]hen any
GR: Acts seeking affirmative relief would tribunal corporation, board, officer
constitute the voluntary appearance or or person unlawfully neglects the
submission to the jurisdiction of the court. performance of an act which the law
XPN: Making a special appearance to the court specifically enjoins as a duty
to question the jurisdiction of the court over the resulting from an office, trust, or
person of the accused is not considered a station," and "there is no other
voluntary submission to the jurisdiction of the
plain, speedy and adequate remedy
court
in the ordinary course of law."
INJUNCTION
Injunction – putting a stop to or preventing criminal GR: Mandamus cannot be resorted to in order to
compel a criminal prosecution
prosecution
 Injunction will not lie to enjoin a XPN: After determination of probable cause, it
criminal prosecution becomes the mandatory duty of the prosecutor to
RATIONALE: Public interest file the case before the court. Otherwise, the non-
requires that criminal acts be filing of the criminal case despite the finding of
immediately investigated and probable cause will be considered a grave abuse of
prosecuted for the protection of discretion or a deliberate refusal to perform a duty
society enjoined by law by the prosecutor and therefore, a
proper case for mandamus
GR: Injunction will not be granted to restrain
criminal prosecution since public interest COURTS
requires the criminal acts be immediately Functions of court
investigated and prosecuted for the protection of 1) Decide actual controversies and not to give
society. opinions upon abstract propositions
2) Apply the law
XPNs: 3) Interpret the law
1) When the injunction is necessary to afford
adequate protection to the constitutional Classification of courts
rights of the accused As to jurisdiction
2) When it is necessary for the orderly
1) Collegiate Courts (Sandiganbayan, Court of
administration of justice or to avoid
oppression or multiplicity of actions Appeals, Court of Tax Appeals and Supreme
3) When there is a prejudicial question Court) – those with multiple judges sitting in
which is subjudice the court
4) When the acts of the officer are without or  their jurisdiction covers the entire
in excess of authority Philippines (whatever is covered by
5) Where the prosecution is under an invalid territory of the Philippines)
law, ordinance or regulation 2) Trial Courts, First Level Courts, Municipal
6) When double jeopardy is clearly apparent Trial Courts, Metropolitan Trial Courts,
7) Where the court has no jurisdiction over Municipal Trial Courts and Regional Trial
the offense Courts – specific and limited judicial regions
8) When it is a case of persecution rather
over which they have jurisdiction
than prosecution*
9) When the charges are manifestly false and
motivated by lust for vengeance As to functions
10) When there is clearly no prima facie case 1) Regular courts
against the accused and a motion to  Supreme court
quash on that ground has been denied  Court of appeals
*the careless inclusion of a person in the warrant of arrest is an  Regional trial courts
act of persecution rather than prosecution  Metropolitan trial courts, municipal
trial courts in cities, municipal trial
MANDAMUS courts, municipal circuit trial courts
Mandamus - for one to demand or compel a public
officer to do his job or duty that is prescribed by law 2) Special courts
 a remedial measure for parties  Sandiganbayan
aggrieved which shall be issued when  Court of tax appeals
any tribunal, corporation, board,  Shari’a district courts, shari’a circual
officer, or person unlawfully neglects a courts
performance of an act which the law
specifically enjoins as a duty resulting Rule of thumb on original jurisdiction of courts
from an office, a trust, or station 1) Determine whether a particular case is under
the jurisdiction of the Sandiganbayan
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2) Determine whether a particular case is under engineers, and other provincial

the jurisdiction of Special Regional Trial Courts department heads:
or Special Courts (Family Courts, Dangerous B) City mayors, vice-mayors, members
Drugs Act Courts, Intellectual Property Courts of the sangguniang panlungsod, city
or Commercial Courts) treasurers, assessors, engineers, and
3) If not proceed to look at regular courts in the other city department heads;
following order: C) Officials of the diplomatic service
occupying the position of consul and
a) MTC, MTCC, MCTC - the first level
higher;
courts D) Philippine army and air force
b) RTC - that is not designated as a special colonels, naval captains, and all
court. It is called a catch all court officers of higher rank;
because if a criminal case does not fall E) Officers of the Philippine National
within the original jurisdiction of any Police while occupying the position
other court, then it will be the regular of provincial director and those
RTC that will have jurisdiction over it holding the rank of senior
superintendent and higher;
Original jurisdiction of Sandiganbayan F) City and provincial prosecutors and
 PD 1606 their assistants, and officials and
prosecutors in the Office of the
 RA 795 – Amended PD 1606
Ombudsman and special prosecutor;
 RA 8249 G) Presidents, directors or trustees, or
 RA 10660 managers of government-owned or
controlled corporations, state
1+1=2 METHOD universities or educational
Rules institutions or foundations.
1) First, determine whether or not the subject
crime is that covered under or listed under the 2) Members of Congress and officials
Sandiganbayan Law or is a special criminal law thereof classified as Grade ’27’ and
which states that it is the Sandiganbayan which higher under the Compensation and
has original jurisdiction. Position Classification Act of 1989;
2) Second, list down on the second column all the 3) Members of the judiciary without
prejudice to the provisions of the
persons covered by the Sandiganbayan Law.
Constitution;
4) Chairmen and members of the
If both rules are satisfied (1+1=2), then the Constitutional Commissions, without
Sandiganbayan has jurisdiction over the case prejudice to the provisions of the
Constitution; and
RA 10660 5) All other national and local officials
Section 2. Section 4 of the same decree, as amended, classified as Grade ’27’ and higher under
is hereby further amended to read as follows: the Compensation and Position
"SEC. 4. Jurisdiction. – The Sandiganbayan shall Classification Act of 1989.
exercise exclusive original jurisdiction in all cases b) Other offenses or felonies whether simple or
involving: complexed with other crimes committed by
a) Violations of Republic Act No. 3019, as the public officials and employees
amended, otherwise known as the Anti- mentioned in subsection a. of this section in
Graft and Corrupt Practices Act, Republic relation to their office.
Act No. 1379, and Chapter II, Section 2, c) Civil and criminal cases filed pursuant to and
Title VII, Book II of the Revised Penal in connection with Executive Order Nos. 1,
Code, where one or more of the accused are 2, 14 and 14-A, issued in 1986.
officials occupying the following positions in
the government, whether in a permanent, Provided, That the Regional Trial Court shall have
acting or interim capacity, at the time of the exclusive original jurisdiction where the information:
commission of the offense: (a) does not allege any damage to the
1) Officials of the executive branch government or any bribery; or (b) alleges
occupying the positions of regional damage to the government or bribery arising
director and higher, otherwise classified from the same or closely related transactions or
as Grade ’27’ and higher, of the acts in an amount not exceeding One million
Compensation and Position pesos (P1,000,000.00)
Classification Act of 1989 (Republic Act
No. 6758), specifically including: After RA 10660 Before 10660
A) Provincial governors, vice- Date May 1, 2015 and Before May 1,
governors, members of the onwards 2015
As to the Introduced a No threshold
sangguniang panlalawigan, and
threshold (column threshold amount needed
provincial treasurers, assessors, 1) (1M) of the
damage to the
8

government or to offense committed in relation" to his office. (People

the amount v. Sandiganbayan)
involved in the
bribery for it to
come under the Rule
jurisdiction of the 1) Crimes which may be committed even if not a
Sandiganbayan
public official - requirement of alleging
As to the salary Limited category 2 No limitation as to
grade in those in the sense that salary grade specifically in the information or in the
positions most of the complaint that a particular crime is committed
specifically officers and in relation his office
provided by law in employees should
column 2 be SG 27 or 2) Crimes which have for their constituent
higher element ‘public office’ as provided in the
statute defining it - no need for the
Column 1 (cases which are under the exclusive information to state that specific factual
jurisdiction of the Sandiganbayan) allegations of the intimacy between the office
1) Violations of Republic Act No. 3019, as and the crime charged or the accused
amended, otherwise known as the Anti-Graft committed the crime in the performance of his
and Corrupt Practices Act duties.
2) Violations against Republic Act No. 1379, or
an Act declaring Forfeiture in favor of the State From the allegations of the information it does
any property found to have been unlawfully not appear that the official positions of the
acquired by any public officer or employee and accused were connected with the offenses
providing for the proceedings therefor charged. In fact, the attorneys for the prosecution
3) Crimes committed by public officers under the of stated that the motives for the crimes were
RPC, Chapter 2, Sec. 2, Title VII of Book 2. "personal with political character." It does not even
We have Article 210 – Direct Bribery, Article appear, nor is there assertion, that the crimes were
committed by the defendants in line of duty or in the
211 – Indirect Bribery, Article 211-A –
performance of their official functions.
Qualified Bribery, and Article 212 –
Corruption of Public Officials. Public office is not of the essence of murder. The
4) Other offenses or felonies, whether simple or taking of human life is either murder or homicide
complexed with other crimes, committed by whether done by a private citizen or public servant,
the public officials and employees which are and the penalty is the same except when the
subject to the jurisdiction of Sandiganbayan. perpetrator, being a public functionary, took
This is a catch-all provision which covers all advantage of his office, as alleged in this case, in
other felonies or crimes which may not which event the penalty is increased.
necessarily be covered by the Sandiganbayan
Law but because the crime is committed by a But the use or abuse of office does not adhere to the
public officer or employee in relation to crime as an element; and even as an aggravating
circumstance, its materiality arises, not from the
his/her office
allegations but on the proof, not from the fact that
the criminals are public officials but from the
An offense may be considered as committed in manner of the commission of the crime.
relation to the office if:
1) it cannot exist without the office; or Incidentally, this might serve as a warning
2) if the office is a constituent element of the against disqualifying a lawyer legislator on the
crime as defined in the statute, such as, for basis of what is alleged and not on the nature of
instance, the crimes defined and punished in the offense itself. Where the petitioners'
Chapter Two to Six, Title Seven, of the Revised proposition sustained, the result would be that in
Penal Code; every case in which the accused is a public officer or
3) the offense must be intimately connected employee, the prosecution could at will keep a
with the office of the offender; and member of Congress from entering an appearance
4) the fact that the offense was committed in as attorney for the defense. The prosecutor could do
this by the simple expedient of making the necessary
relation to the office must be alleged in the
averments, even though, as a matter of fact, there
information was no evidence that the office held by the
defendant had anything to do with the offense.
This Court had ruled that as long as the offense
charged in the information is intimately connected By the same token, the fact that, as alleged, the
with the office and is alleged to have been defendants made use of firearms which they were
perpetrated while the accused was in the authorized to carry or possess by reason of their
performance, though improper or irregular, of his positions, could not supply the required connection
official functions, there being no personal motive to between the office and the crime. Firearms however
commit the crime and had the accused not have and wherever obtained are not an ingredient of
committed it had he not held the aforesaid office, murder or homicide. The crime in question, for
the accused is held to have been indicted for "an
9

example, could have been committed by the Geduspan v. People, We held that while the first part of
defendants in the same or like manner and with the Section 4(A) covers only officials with Salary Grade
same case if they had been private individuals and 27 and higher, its second part specifically includes
fired with unlicensed weapons. Murders or other executive officials whose positions may not be
homicides by private persons with guns, licensed or of Salary Grade 27 and higher but who are by
unlicensed are the general rule and by public officers express provision of law placed under the
the exception. (Montilla v. Hilario) jurisdiction of the said court. Petitioner falls under
the jurisdiction of the Sandiganbayan as she is placed
XPN: there by express provision of law.
It is apparent from these allegations that, although
public office is not an element of the crime of Section 4(A)(1)(g) of P.D. No. 1606 explictly vested
murder in abstract, as committed by the main the Sandiganbayan with jurisdiction over
respondents herein, according to the amended Presidents, directors or trustees, or managers of
information, the offense therein charged is government-owned or controlled corporations,
intimately connected with their respective offices state universities or educational institutions or
and was perpetrated while they were in the foundations. Petitioner falls under this category.
performance, though improper or irregular, of their As the Sandiganbayan pointed out, the BOR
official functions. Indeed, they had no personal performs functions similar to those of a board of
motive to commit the crime and they would not trustees of a non-stock corporation. By express
have committed it had they not held their mandate of law, petitioner is, indeed, a public
aforesaid offices. The co-defendants of respondent officer as contemplated by P.D. No. 1606.
Leroy S. Brown, obeyed his instructions because he
was their superior officer, as Mayor of Basilan City. Moreover, it is well established that compensation
(People v. Montejo) is not an essential element of public office. At
most, it is merely incidental to the public office.
In People v. Montejo, we ruled that an offense is said to (Serana v. Sandiganbayan)
have been committed in relation to the office if the
offense is "intimately connected" with the office of Jurisdiction of Sandiganbayan in specific special
the offender and perpetrated while he was in the criminal laws
performance of his official functions. This intimate 1) Anti-Money Laundering Cases
relation between the offense charged and the RA 9160
discharge of official duties must be alleged in the SEC. 5. Jurisdiction of Money Laundering Cases. — The
Information. This is in accordance with the rule that regional trial courts shall have jurisdiction to try all
the factor that characterizes the charge is the actual cases on money laundering. Those committed by
recital of the facts in the complaint or information. public officers and private persons who are in
Hence, where the information is wanting in specific conspiracy with such public officers shall be
factual averments to show the intimate under the jurisdiction of the Sandiganbayan.
relationship/connection between the offense
charged and the discharge of official functions, the 2) Plunder
Sandiganbayan has no jurisdiction over the case. RA 7080
Section 3. Competent Court - Until otherwise provided
xxBut he imposed a condition before extending such by law, all prosecutions under this Act shall be
recommendation - she should be his girlfriend and within the original jurisdiction of the
must report daily to his office for a kiss. There can Sandiganbayan.
be no doubt, therefore, that petitioner used his
official position in committing the acts complained
Private persons
of. While it is true, as petitioner argues, that public
office is not an element of the crime of acts of The controlling doctrine here is that a private person
lasciviousness, defined and penalized under Article may be charged in conspiracy with a public officer
336 of the Revised Penal Code, nonetheless, he or officers. There must be an element of a perpetrator
could not have committed the crimes charged were that is a public official which comes under the
it not for the fact that as the Presiding Judge of the jurisdiction of the Sandiganbayan only then, a private
MTCC, Branch I, Cabanatuan City, he has the person also be impleaded or included in the case that
authority to recommend the appointment of Ana is filed. Hence, it is a settled rule that a private person
May as bookbinder. In other words, the crimes when acting in conspiracy with public officers may be
allegedly committed are intimately connected with indicted and if found guilty held liable for criminal
his office. (Esteban v. Sandiganbayan) violations defined and penalized under our laws. Even
if the public officer to whom the private person
Petitioner claims that she is not a public officer with conspired with dies during the trial, death extinguishes
Salary Grade 27; she is, in fact, a regular tuition fee- criminal liability but the extinguishment of the
paying student. This is likewise bereft of merit. It is
criminal liability of the public officer does not
not only the salary grade that determines the
erase if proven that there was conspiracy.
jurisdiction of the Sandiganbayan. The
Sandiganbayan also has jurisdiction over other Therefore, the only burden of the prosecution is to
officers enumerated in P.D. No. 1606. In prove that the public officer and the private person
10

conspired. If this is proven beyond reasonable doubt D) Philippine army and air force colonels,
whether or not the public officer is alive. Private naval captains, and all officers of higher
person can be indicted and be found guilty of the rank;
criminal offense by the Sandiganbayan E) Officers of the Philippine National Police
while occupying the position of provincial
5) Civil and criminal cases filed pursuant to and in director and those holding the rank of
connection with EO Nos. 1, 2, 14, and 14-A senior superintendent and higher;
issued in 1986. These are executive orders F) City and provincial prosecutors and their
issued to recover the ill-gotten wealth assistants, and officials and prosecutors in
accumulated by the late President Ferdinand the Office of the Ombudsman and special
Marcos, his immediate family, relatives, prosecutor;
subordinates, and close associates. This created G) Presidents, directors or trustees, or
what is now called the Presidential managers of government-owned or
Commission on Good Government (PCGG). controlled corporations, state universities
It is not only jurisdiction in the criminal case or educational institutions or foundations.
but also jurisdiction over the civil case on the
recovery of the ill-gotten wealth. It is of no moment that the position of petitioner is
merely classified as salary grade 26. While the first
XPN/Proviso: Because of RA 10660 which amended part of the above quoted provision covers only
the Sandiganbayan Law, where the Information officials of the executive branch with the salary grade
charging the offense: 27 and higher, the second part thereof "specifically
1) does not allege any damage to the government includes" other executive officials whose positions
or does not allege any bribery; or may not be of grade 27 and higher but who are by
express provision of law placed under the
2) it alleges damage to the government or bribery
jurisdiction of the said court. (Geduspan v. People)
arising from the same or closely related
transactions or acts in an amount that is not 3) Third category - consists of specifically
exceeding one million pesos (P1,000,000.00) enumerated public officials which are actually
The exclusive original jurisdiction will not be with the more than Salary Grade 27, but because of the
Sandiganbayan but with the RTC. provisions of the Constitution, they cannot
come under the jurisdiction of the
Column 2 (persons who are covered by the Sandiganbayan, unless they are removed via
Sandiganbayan Law) impeachment.
Where one or more of the accused officials occupying A) Members of the judiciary without prejudice
the following positions in the government whether to the provisions of the Constitution;
permanent, acting or interim capacity at the time of the B) Chairmen and members of the
commission of the offense. Constitutional Commissions, without
prejudice to the provisions of the
1) First Category - Officials of the executive Constitution; and
branch occupying the positions of regional
director and higher. Otherwise classified as SG The original exclusive jurisdiction of special
27 and higher under the Compensation and courts, regional courts and municipal trial courts
Position Classification Act of 1989; those
members of Congress or officials thereof, Special courts
which is Salary Grade 27 or higher; or all other 1) Family Courts
national or local officials which are Salary 2) Dangerous Drugs Courts
Grade 27 or higher. 3) Intellectual Property Courts
2) Second category - Those specifically 4) Shari’a Circuit Courts
enumerated under the Sandiganbayan Law
A) Provincial governors, vice-governors, Family Courts
members of the sangguniang panlalawigan, RA 8369
and provincial treasurers, assessors,
Section 5. Jurisdiction of family Courts. - The Family
engineers, and other provincial department Courts shall have exclusive original jurisdiction to
heads: hear and decide the following cases:
B) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers, a) Criminal cases where one or more of the accused
assessors, engineers, and other city is below eighteen (18) years of age but not less than
department heads; nine (9) years of age but not less than nine (9) years
C) Officials of the diplomatic service of age or where one or more of the victims is a minor
occupying the position of consul and at the time of the commission of the offense:
higher; Provided, That if the minor is found guilty, the court
11

shall promulgate sentence and ascertain any civil 1) Criminal cases where one or more of the
liability which the accused may have incurred. accused is below eighteen (18) years of age but
not less than nine (9) years of age or where one
The sentence, however, shall be suspended without or more of the victims is a minor at the time of
need of application pursuant to Ptesidential Decree the commission of the offense.
No. 603, otherwise known as the "Child and Youth 2) Cases against minors cognizable under the
Welfare Code"; Dangerous Drugs Act, as amended;
3) Violations of Republic Act No. 7610,
b) Petitions for guardianship, custody of children,
habeas corpus in relation to the latter; otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation
c) Petitions for adoption of children and the and Discrimination Act," as amended by
revocation thereof; Republic Act No. 7658; and
4) Cases of domestic violence against:
d) Complaints for annulment of marriage, 1) Women; and
declaration of nullity of marriage and those relating 2) Children
to marital status and property relations of husband 5) Violation of RA 9775, otherwise known as
and wife or those living together under different “Anti-Child Pornography Act of 2009”
status and agreements, and petitions for dissolution 6) Criminal cases involving juveniles if no
of conjugal partnership of gains; preliminary investigation is required
e) Petitions for support and/or acknowledgment;
Jurisdiction of Dangerous Drugs Courts
f) Summary judicial proceedings brought under the GR: Violations in Dangerous Drugs Act under RA
provisions of Executive Order No. 209, otherwise 9165
known as the "Family Code of the Philippines"; XPN: those cases against minors cognizable under
the Dangerous Drugs Act, which is under the Family
g) Petitions for declaration of status of children as Courts
abandoned, dependent or neglected children,
petitions for voluntary or involuntary commitment Jurisdiction of Intellectual Property Courts
of children; the suspension, termination, or The regional trial court designated by SC as Intellectual
restoration of parental authority and other cases Property Courts will have jurisdiction over all criminal
cognizable under Presidential Decree No. 603, violations of the Intellectual Property Code and its
Executive Order No. 56, (Series of 1986), and other related laws
related laws;
Jurisdiction of Shari’a Circuit Court
h) Petitions for the constitution of the family home; RA 1083
Article 155. Jurisdiction. The Shari'a Circuit Courts
i) Cases against minors cognizable under the shall have exclusive original jurisdiction over;
Dangerous Drugs Act, as amended;
(1) All cases involving offenses defined and
j) Violations of Republic Act No. 7610, otherwise
punished under this Code.
known as the "Special Protection of Children
Against Child Abuse, Exploitation and
xx
Discrimination Act," as amended by Republic Act
No. 7658; and
Exclusive original jurisdiction over all cases involving
k) Cases of domestic violence against: all offenses defined and punished under the Code of
Muslim Personal Laws, namely
1) Women - which are acts of gender-based 1) Illegal solemnization of marriage;
violence that results, or are likely to result in 2) Marriage before expiration of Idda;
physical, sexual or psychological harm or 3) Offenses relative to subsequent marriage,
suffering to women; and other forms of divorce and revocation of divorce;
physical abuse such as battering or threats 4) Failure to report for registration; and
and coercion which violate a woman's 5) Neglect of duty by registrars
personhood, integrity and freedom
movement; and Q: Will the provisions of the RPC on bigamy apply
2) Children - which include the commission of to Muslims?
all forms of abuse, neglect, cruelty,
A: No. The provisions of the RPC relative to the crime
exploitation, violence, and discrimination
and all other conditions prejudicial to their of bigamy shall not apply to a person married in
development. accordance with the provisions of the Code of Muslim
Personal Laws of the Philippines, or before its
Jurisdiction of family courts in criminal effectivity, under the Muslim Law
proceedings
Regular Courts
12

1) Supreme court government or bribery arising from the

2) Court of appeals same or closely related transactions or
3) Regional trial courts acts in an amount not exceeding One
4) Metropolitan trial courts, municipal trial courts million pesos (P1,000,000.00)
in cities, municipal trial courts, municipal
circuit trial courts 4) Cases where the only penalty provided by law
is a fine exceeding P4, 000 pesos;
Metropolitan Trial Courts, Municipal Trial Courts in 5) Other laws which specifically lodge the
cities, Municipal Trial Courts or Municipal Circuit jurisdiction in the RTC, such as: a
Courts a) criminal and civil aspects of written
1) All offenses punishable of imprisonment not defamation under Art. 360 of RPC
exceeding 6 years irrespective of the amount of b) criminal cases properly termed Election
fine and regardless of other imposable Cases under Omnibus Election Code even
accessory or other penalties; if committed by a public official with a SG
2) Offenses involving damage to property to 27 or higher It is not in SB because the 1st
criminal negligence, where the imposable fine column did not enumerate election
does not exceed P10, 000 pesos; offenses (in SB Law).
3) Where the only penalty provided by law is a 6) Money laundering that is committed by private
fine not exceeding P4, 000 pesos; and individuals.
4) Those covered by the rules of summary
procedure as follows: Appellate jurisdiction
a) Violations of traffic laws, rules and The basic premise is all appeals from
regulations; 1) All appeals from Court of Appeals go to
b) Violation of the rental law; Supreme Court
c) Violation of municipal or city ordinances; 2) All appeal from Sandiganbayan go to Supreme
d) Violations of BP 22 (Bouncing Checks Court.
Law); e. All other criminal cases where the 3) All appeals from first level courts MTC,
penalty is imprisonment not exceeding 6 MTCC, MCTC go to the RTC regardless of the
months and/or a fine of P1, 000 pesos issue.
irrespective of all other penalties or civil
liabilities arising therefrom Where do you appeal a decision from the RTC?
5) All offenses committed by a public officer or GR: Appeals, by notice of appeal or petition for
employee in relation to their office including review, from Decisions of The Regional Trial Court are
government-owned or controlled appealable to the Court of Appeals
corporations, and by private individuals 1) Petition for review
charged as a co-principal, accomplice, or 2) Notice of appeal
accessory punishable with imprisonment of
not more than 6 years or where none of the XPN:
accused holds a position classified as SG 27 or 1) Appealing to Supreme Court directly - All cases
higher in which only an error or question of law is
involved.
Regional Trial Court NOTE: SC has no exclusive jurisdiction. It
This is the catch-all court. It covers: may be appealed to CA
1) Criminal cases not within the exclusive 2) Appealing to Sandiganbayan - All cases decided
jurisdiction of any court, tribunal, or body; by the RTC, whether in its original or appellate
2) Cases where the penalty provided by the law jurisdiction which would have been within the
exceeds 6 years of imprisonment irrespective jurisdiction of the Sandiganbayan if any of the
of fine; accused had been occupying positions
3) Cases not falling within the exclusive original corresponding to Salary Grade “27” or higher,
jurisdiction of the SB, where the imposable as prescribed in the said R.A. No. 6758, or
penalty is imprisonment of more than 6 years military and PNP officer mentioned in the
and none of the accused is occupying positions Sandiganbayan law.
classified as SG 27 or higher and the proviso
under RA 10660 Katarungang Pambarangay
If you file an information in court without proper
RA 10660 barangay conciliation certification the court
Provided, That the Regional Trial Court through a motion of the defendant may:
shall have exclusive original jurisdiction 1) Dismiss for failure to state a cause of action or
where the information: (a) does not allege prematurity or
any damage to the government or any 2) the court may suspend the proceedings upon
bribery; or (b) alleges damage to the petition of either party and refer the case to the
13

appropriate barangay authority to conduct the 12) Actions to annul judgment upon a compromise
proper barangay conciliation. which may be filed directly in court.
GR: All dispute must be referred to or must come Process to be followed

under barangay conciliation process under the said law. 1) An individual who has a cause of action to
XPNs: another individual can orally or in writing
1) Where one party is the government, or any approach the Lupon chairman or barangay
subdivision or instrumentality thereof; captain.
2) Where one party is a public officer or 2) Complain and file the appropriate fee. The
employee, and the dispute relates to the Lupon Charirman will issue a summon to the
performance of his official functions; parties for them to talk and settle the matter
3) Where the dispute involves real properties 3) While the settlement talks is happening, it will
located in different cities and municipalities, for 60 days from the complaint is filed toll
XPN of XPN: the parties thereto agree to the prescriptive period of the offense.
submit their difference to amicable settlement 4) The lupon chairman will try for 15 days to
by an appropriate Lupon settle. If he fails then he must constitute with
4) Any complaint by or against corporations, Pangkat ng Tagapamayapa*.
partnership or juridical entities, since only *According to Local Government Code,
individuals shall be parties to Barangay members of Pangkat ng Tagapamayapa are
conciliation proceedings either as members of barangay.
complainants or respondents 5) The pangkat shall arrive at a settlement or
5) Disputes involving parties who actually resolution of the dispute within fifteen (15)
reside in barangays of different cities or days from the day it convenes in accordance
municipalities, XPN of XPN: where such with this section. This period shall, at the
barangay units adjoin each other and the parties discretion of the pangkat, be extendible for
thereto agree to submit their differences to another period which shall not exceed
amicable settlement by an appropriate Lupon; fifteen (15) days, except in clearly
6) Offenses* for which the law prescribes a meritorious cases
maximum penalty of imprisonment exceeding
one (1) year or a fine over five thousand pesos Under the Circular, there is a requirement that the
(P5,000.00); Lupon Secretary and the secretary of the
*cases covered under the Katarungang pangkat will
Pambarangay are those with imposable penalty 1) issue a certificate that a confrontation of the
is less than 1 year or a year of less than 5,000 parties took place but no
pesos. conciliation/settlement has been reached or
7) Offenses where there is no private offended 2) that no personal confrontation took place
before the Pangkat through no fault of the
party;
complainant.
8) Disputes where urgent legal action is necessary
to prevent injustice from being committed or Parties are members of indigenous cultural
further continued, specifically the following: community
a) Criminal cases where accused is under It shall be settled in accordance with the customs and
police custody or detention traditions of that particular cultural community
b) Petitions for habeas corpus by a person
illegally deprived of his rightful custody If no settlement, the Punong Barangay will issue the
over another or a person illegally deprived certification to file action upon certification by the datu
or on acting in his behalf; or tribal leader or elder to the Punong Barangay of
c) Actions coupled with provisional remedies place of settlement.
such as preliminary injunction, attachment,
delivery of personal property and support
It is well-settled that the non-referral of a case for
during the pendency of the action; and barangay conciliation when so required under the
d) Actions which may be barred by the Statute law is not jurisdictional in nature and may therefore
of Limitations. be deemed waived if not raised seasonably in a
9) Any class of disputes which the President may motion to dismiss. The Court notes that although
determine in the interest of justice or upon the petitioners could have invoked the ground of
recommendation of the Secretary of Justice; prematurity of the causes of action against them
10) Where the dispute arises from the due to the failure to submit the dispute to Lupon
Comprehensive Agrarian Reform Law prior to the filing of the cases as soon as they
(CARL); received the complaints against them,
11) Labor disputes or controversies arising from petitioners raised the said ground only after
employeremployee relations; their arraignment.
14

The rule is, prior to arraignment, you must raise least four (4) years, two (2) months and one (1) day
it in order for the court to dismiss or suspend it without regard to the fine.
and refer to proper barangay. After arraignment it  It is a statutory and not a constitutional
is deemed waived. (Bañares II v. Balising) right
 Merely to present such evidence as may
RULE 110 engender a well-founded belief that an
PROSECUTION OF OFFENSES offense has been committed and that
the respondent is probably guilty
INSTITUTION OF CRIMINAL ACTIONS  Petitioner has no right to cross-
Section 1. Institution of criminal actions – Criminal examine the witness
actions shall be instituted as follows:  Injunction will not lie to stop
a) For offenses where a preliminary
preliminary investigation
investigation is required pursuant to section
1 of Rule 112, by filing the complaint with  Submission of affidavits and counter-
the proper officer for the purpose of affidavits
conducting the requisite preliminary
investigation. Rules of Court, Rule 112
b) For all other offenses, by filing the complaint Section 7. When accused lawfully arrested without warrant.
or information directly with the Municipal – When a person is lawfully arrested without a
Trial Courts and Municipal Circuit Trial warrant involving an offense which requires a
Courts, or the complaint with the office of preliminary investigation, the complaint or
the prosecutor. In Manila and other information may be filed by a prosecutor without
chartered cities, the complaints shall be filed need of such investigation provided an inquest has
with the office of the prosecutor unless been conducted in accordance with existing rules. In
otherwise provided in their charters. the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the
The institution of the criminal action shall interrupt offended party or a peace officer directly with the
the running of the period of prescription of the proper court on the basis of the affidavit of the
offense charged unless otherwise provided in special offended party or arresting officer or person.
laws.
Before the complaint or information is filed, the
Purpose of criminal action person arrested may ask for a preliminary
The purpose of criminal action, in its purest sense, is investigation in accordance with this Rule, but he
to determine the penal liability of the accused for must sign a waiver of the provision of Article 125 of
having outraged the State with his crime, and if he the Revised Penal Code, as amended, in the presence
of his counsel. Notwithstanding the waiver, he may
is found guilty, to punish him for it.
apply for bail and the investigation must be
terminated within fifteen (15) days from its
Parties in a criminal action inception.
1) Offender – private suspect/guilty party;
2) Offended party – State After the filing of the complaint or information in
3) Complainant – acts as witness for the court without a preliminary investigation, the
prosecution; the interest of the private accused may, within five (5) days from the time he
complainant is limited to the civil liability learns of its filing, ask for a preliminary investigation
with the same right to adduce evidence in his defense
How can criminal actions be instituted? as provided in this Rule.
1) For offenses where a preliminary investigation
is required pursuant to section 1 of Rule 112, Revised Penal Code
by filing the complaint with the proper Art. 125. Delay in the delivery of detained persons to the
officer for the purpose of conducting the proper judicial authorities. — The penalties provided in
requisite preliminary investigation the next preceding article shall be imposed upon the
public officer or employee who shall detain any
person for some legal ground and shall fail to deliver
Rules of Court, Rule 112
such person to the proper judicial authorities within
Section 1. Preliminary investigation defined; when required. the period of; twelve (12) hours, for crimes or
– Preliminary investigation is an inquiry or offenses punishable by light penalties, or their
proceeding to determine whether there is sufficient equivalent; eighteen (18) hours, for crimes or
ground to engender a well-founded belief that a offenses punishable by correctional penalties, or
crime has been committed and the respondent is their equivalent and thirty-six (36) hours, for crimes,
probably guilty thereof, and should be held for trial. or offenses punishable by afflictive or capital
penalties, or their equivalent.
Except as provided in Section 7 of this Rule, a
preliminary investigation is required to be conducted In every case, the person detained shall be informed
before the filing of a compliant or information for of the cause of his detention and shall be allowed
an offense where the penalty prescribed by law is at
15

upon his request, to communicate and confer at any 2) By filing the complaint with the office of the
time with his attorney or counsel. prosecutor
GR: (PRELIMINARY INVESTIGATION) Special rule: In Manila and other chartered cities,
preliminary investigation is required to be conducted the complaints shall be filed with the office of the
before the filing of a compliant or information for an prosecutor unless otherwise provided in their charters.
offense where the penalty prescribed by law is at least
four (4) years, two (2) months and one (1) day “Proper officer”
without regard to the fine 1) City Prosecutor’s Office,
2) Municipal Prosecutor’s Office, or the
XPN: (INQUEST PROCEEDINGS) When a 3) Prosecution Offices under the Department of
person is lawfully arrested without a warrant Justice (DOJ).
involving an offense which requires a preliminary 4) Ombudsman
investigation, the complaint or information may be
filed by a prosecutor without need of such Effect of institution of criminal action
investigation provided an inquest has been GR: The institution of the criminal action shall
conducted in accordance with existing rules. interrupt the running of the period of prescription of
the offense charged
XPN of XPN: (DIRECT FILING TO THE XPN: unless otherwise provided in special laws.
COURT) In the absence or unavailability of an  The prescriptive period as provided by the
inquest prosecutor, the complaint may be filed by special penal law
the offended party or a peace officer directly with  If no provision – Act No 3326
the proper court on the basis of the affidavit of the
offended party or arresting officer or person. The running of the period of prescription is
 Before the complaint or information is interrupted with the filing of the action even if the
filed, the person arrested may ask for court in which the action is first filed is without
a preliminary investigation in jurisdiction
accordance with this Rule, but he must
sign a waiver of the provision of Act No. 3326
Article 125 of the Revised Penal Code, AN ACT TO ESTABLISH PERIODS OF
as amended, in the presence of his PRESCRIPTION FOR VIOLATIONS
counsel. PENALIZED BY SPECIAL ACTS AND
 After the filing of the complaint or MUNICIPAL ORDINANCES AND TO
information in court without a PROVIDE WHEN PRESCRIPTION SHALL
preliminary investigation, the accused BEGIN TO RUN
may, within five (5) days from the Section 1. Violations penalized by special acts shall,
time he learns of its filing, ask for a unless otherwise provided in such acts, prescribe in
preliminary investigation with the accordance with the following rules:
same right to adduce evidence in his a) after a year for offenses punished only by a
defense as provided in this Rule. fine or by imprisonment for not more than
one month, or both; (< 1 month)
The filing to the court of authority will toll the b) after four years for those punished by
running of the period under Art 125. imprisonment for more than one month,
but less than two years; (1 month – 2 years)
2) For all other offenses, by filing the complaint c) after eight years for those punished by
or information directly with the Municipal imprisonment for two years or more, but less
Trial Courts and Municipal Circuit Trial than six years; and (2-6 years)
Courts, or the complaint with the office of d) after twelve years for any other offense
the prosecutor. In Manila and other chartered punished by imprisonment for six years or
cities, the complaints shall be filed with the more, except the crime of treason, which
office of the prosecutor unless otherwise shall prescribe after twenty years. Violations
provided in their charters. penalized by municipal ordinances shall
prescribe after two months. (6-20 years)
How about for those offenses where the
prescribed penalty is less than 4 years, 2 months? Sec. 2. Prescription shall begin to run from the day of
GR: (DIRECT FILING TO THE COURT) A the commission of the violation of the law, and if the
preliminary investigation is not required and a criminal same be not known at the time, from the discovery
action is instituted in either of two ways: thereof and the institution of judicial proceeding for its
1) By filing the complaint or information directly investigation and punishment.
with the MTC, MCTC, MeTC (first level
courts); or
16

The prescription shall be interrupted when The prosecution for violation of special laws shall be
proceedings are instituted against the guilty governed by the provision thereof.
person, and shall begin to run again if the
proceedings are dismissed for reasons not 1ST PARAGRAPH
constituting jeopardy. PROSECUTION OF CRIMINAL ACTION
GR: All criminal actions either commenced by a
Sec. 3. For the purposes of this Act, special acts shall complaint or information shall be prosecuted under
be acts defining and penalizing violations of the law not the direction and control of the public prosecutor.
included in the Penal Code. This is the general rule and this applies to a criminal
action commenced either by a complaint or an
Sec. 4. This Act shall take effect on its approval. information.
Section 5. Who must prosecute criminal action. - All XPNs:

criminal actions either commenced by complaint or 1) In case of heavy work schedule of the public
by information shall be prosecuted under the prosecutor or in the event of lack of public
direction and control of a public prosecutor. In case prosecutors (A.M. No. 02-2-07-SC)
of heavy work schedule of the public prosecutor or
in the event of lack of public prosecutors, the private A.M. No. 02-2-07-SC
prosecutor may be authorized in writing by the Chief RE: PROPOSED AMENDMENTS TO
of the Prosecution Office or the Regional State SECTION 5, RULE 110 OF THE REVISED
Prosecutor to prosecute the case subject to the RULES OF CRIMINAL PROCEDURE
approval of the court. Once so authorized to Sec 5 – xxxIn case of heavy work schedule of the public
prosecute the criminal action, the private prosecutor prosecutor or in the event of lack of public
shall continue to prosecute the case up to end of the prosecutors, the private prosecutor may be
trial even in the absence of a public prosecutor,
1) authorized in writing by the Chief of the
unless the authority is revoked or otherwise
Prosecution Office or the Regional State
withdrawn. x x x").
Prosecutor to prosecute the case subject to the
The crimes of adultery and concubinage shall not be approval of the court
prosecuted except upon a complaint filed by the 2) Once so authorized to prosecute the criminal
offended spouse. The offended party cannot action, the private prosecutor shall continue to
institute criminal prosecution without including the prosecute the case up to end of the trial even
guilty parties, if both are alive, nor, in any case, if the in the absence of a public prosecutor,
offended party has consented to the offense or XPN: unless the authority is revoked or
pardoned the offenders. otherwise withdrawn.
The offenses of seduction, abduction and acts of

2) Intervention of the private prosecutor
lasciviousness shall not be prosecuted upon a
complaint filed by the offended party of her parents,
grandparents or guardian, nor, in any case, if the Rules on appearance of private prosecutor under
offender has been expressly pardoned by any of the continuous trial rule in criminal cases
them. If the offended party dies or becomes Q: When can the private prosecutor be allowed to
incapacitated before she can file the complaint, and prosecute?
she has no known parents, grandparents or guardian, A: The rule is provided in AM No 15-06-10SC
the State shall initiate the criminal action in her A.M. No. 15-06-10
behalf. Revised Guidelines for Continuous Trial of
Criminal Cases
The offended party, even if a minor, has the right to III, Par 4. In cases where only the civil liability is
initiate the prosecution of the offenses of seduction, being prosecuted by the private prosecutor, the head
abduction and acts of lasciviousness independently of the prosecution office must issue in favor of the
of her parents, grandparents, or guardian, unless she private prosecutor a written authority to try the case
is incompetent or incapable of doing so. Where the even in the absence of the public prosecutor. The
offended party, who is a minor, fails to file the
written authority must be submitted to the court prior
complaint, her parents, grandparents, or guardian
may file the same. The right to file the action granted to the presentation of evidence by the private
to parents, grandparents, or guardian shall be prosecutor in accordance with Section 5, Rule 110.
exclusive of all other persons and shall be exercised
successively in the order herein provided, except as With this authority on record, the court may set the
stated in the preceding paragraph. trial in the case and in other cases tried by the private
prosecutors with delegated authority on separate days
No criminal action for defamation which consists in when the presence of the public prosecutor may be
the imputation of any of the offenses mentioned dispensed with.
above shall be brought except at the instance of and
upon complaint filed by the offended party.
17

XPN of XPN: The offended party may not intervene services of the administrative tribunal to determine
in the prosecution of the offense through a private technical and intricate matters of fact.
prosecutor if the offended party
1) waives the civil action, 2ND PARAGRAPH
2) reserves the right to institute it separately, or RPC
3) institutes the civil action prior to the criminal Art. 344. Prosecution of the crimes of adultery, concubinage,
action. seduction, abduction, rape and acts of lasciviousness. — The
crimes of adultery and concubinage shall not be
Q: What if the case reaches the CA or the SC? prosecuted except upon a complaint filed by the
A: Jurisprudence holds that if there is a dismissal of the offended spouse.
criminal case by the trial court or if there is an acquittal
of the accused, it is only the Office of the Solicitor The offended party cannot institute criminal
prosecution without including both the guilty
General (OSG) that may bring an appeal on the
parties, if they are both alive, nor, in any case, if he
criminal aspect representing the People of the shall have consented or pardoned the offenders.
Philippines. In cases elevated to the Sandiganbayan,
the Office of the Ombudsman thru its special The offenses of seduction, abduction, rape or acts of
prosecutor shall represent the People of the lasciviousness, shall not be prosecuted except upon
Philippines a complaint filed by the offended party or her
parents, grandparents, or guardian, nor, in any case,
Q: What is the rationale of placing the prosecution of if the offender has been expressly pardoned by the
the criminal case under the direct control and above-named persons, as the case may be.
supervision of the public prosecutor?
A: To prevent malicious or unfounded prosecution In cases of seduction, abduction, acts of
by private persons. The right to prosecute vest to the lasciviousness and rape, the marriage of the offender
with the offended party shall extinguish the criminal
prosecutor a wide range of discretion, the discretion of
action or remit the penalty already imposed upon
whether what and whom to charge, the exercise of
him. The provisions of this paragraph shall also be
which depends on factors which are best appreciated applicable to the co-principals, accomplices and
by the public prosecutor accessories after the fact of the above-mentioned
crimes.
Q: What is the nature and purpose of the power of the
public prosecutor to prosecute criminal cases? Crimes which cannot be prosecuted de oficio (by
A: Prosecution of crimes pertains to the executive the prosecutor) (ACASA)
department of the government whose principal 1) Adultery
power and responsibility is to insure that laws are 2) Concubinage
faithfully executed, which includes the power to 3) Abduction
prosecute violators 4) Seduction
5) Acts of lasciviousness
Q: What is the effect if the private complainant’s 6) * Pursuant to R.A. No. 8353, the Anti-Rape
motion for reconsideration does not bear the Law of 1997, rape is now a crime against
imprimatur of the public prosecutor? persons which may be prosecuted de
A: The petition will fail if the motion for oficio.
reconsideration did not bear the imprimatur of the
public prosecutor who has the control of the ADULTERY AND CONCUBINAGE
prosecution of the case. The participation in the case  Adultery and concubinage must be prosecuted
of a private complainant is limited to that of a witness, upon complaint signed by the offended
both in the criminal and civil aspect. spouse.
 The offended party cannot institute
Q: Is it required that the prosecutor be present during criminal prosecution without including
the prosecution of the criminal action? both the guilty parties
A: Yes, the duty of the prosecutor to direct and control  Both parties must be included in the
the prosecution of criminal cases requires that he must complaint even if one of them is not
be present during the proceedings. guilty
XPN:
Doctrine of primary jurisdiction 1) When one of the parties is dead
The courts must refrain from determining a 2) When there is pardon or consent
controversy involving a question which is within the
jurisdiction of an administrative tribunal prior to its Pardon Consent
resolution by the latter, where the question demands Must come after the act Granted prior to the
the exercise of sound administrative discretion but before the institution adulterous act
requiring the special knowledge, experience and of a criminal prosecution
May be express or implied
18

Bars criminal action Dismisses the criminal  offended party,

action  her parents,
 grandparents, or
Corollary to such exclusive grant of power to the  guardians in the order in which
offended spouse to institute the action, it necessarily they are named above.
follows that such initiator must have the status, 2) When there is pardon or consent – the
capacity or legal representation to do so at the time minor will have to seek the help of the
of the filing of the criminal action. This is a familiar
proper government agency for the minor
and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss to properly execute the express pardon
in civil cases, is determined as of the filing of the
complaint or petition. (Pilapil v. Ibay-Somera)
 The term "guardian" means legal, not natural
It must be borne in mind, however, that this legal guardian
requirement was imposed "out of consideration for  In case of complex crimes, where one of the
the aggrieved party who might prefer to suffer the component offenses is a public crime, the
outrage in silence rather than go through the scandal criminal prosecution may be instituted by the
of a public trial." Thus, the law leaves it to the option fiscal (de oficio). Public interest is always
of the aggrieved spouse to seek judicial redress for paramount to private interest
the affront committed by the erring spouse. For
needless to state, this Court should be guided by the Q: What is the nature of the right of the above-named
spirit, rather than the letter, of the law. person to file the complaint?
A: The right to file the action granted to parents,
In this case, by the filing of the complaint of the
husband, it became clear that the desire of the grandparents, or guardian shall be exclusive of all the
offended party was to bring his wife and her alleged other persons and shall be exercised successively in the
paramour to justice. Here, it is clear that the husband order herein provided (Sec 5 (4), Rule 110)
really wants the wife and the paramour to be
punished because of their adulterous acts, and while 5TH PARAGRAPH
it is unfortunate that he died to see the prosecution DEFAMATION
of the case, the SC saw that the husband was willing Q: Who may file a complaint for defamation?
to go through the criminal trial. (People v. Ilarde) A: No criminal action for defamation which consists in
the imputation of any of the offenses (ACASA) shall
3RD PARAGRAPH be brough except at the instance of and upon
SIMPLE ABDUCTION, SEDUCTION, ACTS OF complaint filed by the offended party
LASCIVIOUSNESS
 Seduction, abduction, rape* or acts of For this instance, there is no order and it will only be
lasciviousness must be prosecuted upon the offended party, even if the defamation, libel or
complaint signed by — slander pertains to seduction, abduction and acts of
a) offended party, lasciviousness. If the offended party will not initiate the
b) her parents, complaint, then there can be no criminal prosecution
c) grandparents, or for defamation imputing adultery, concubinage,
d) guardians in the order in which they are seduction, abduction and acts of lasciviousness.
named above.
XPN: 6TH PARAGRAPH
1) When one of the parties is dead – SPECIAL CRIMES
If the offended party dies or Q: What law shall govern special crimes
becomes incapacitated before she A: The prosecution for violation of special laws shall
can file the complaint, and she has be governed by the provision thereof (Sec 5 (6), Rule
no known parents, grandparents or 110)
guardian, the State shall initiate the
criminal action in her behalf. (parens GR: The prosecution for violation of special laws shall
patriae) be governed by the provision thereof
2) When there is pardon or consent XPN: When the special law it does not provide for any
specific provision as to what procedure will govern, it
4TH PARAGRAPH would be the Revised Rules on Criminal Procedure.
 A minor has the right to institute the
prosecution independently of her parents, Section 2. The complaint or information. The complaint
grandparents, guardian etc. (ASA) or information shall be in writing in the name of the
XPN: People of the Philippines against all persons who
1) if she is incapable of doing so upon appear to be responsible for the offense involved.
grounds other than her minority. It may
be filed by Requisites for complaint/information
19

1) shall be in writing Q: What is the requirement before the filing of a

2) in the name of the People of the Philippines criminal information?
3) against all persons who appear to be A: It is a requirement that the filing of the information
responsible for the offense involved. must be preceded by a preliminary investigation.
Q: What is the effect of the failure to implead the Complaint Information

People of the Philippines in a petition for certiorari? May be subscribed by Must be subscribed by
A: Not a ground for dismissal of an action. The remedy the offended party, any the prosecutor
is to implead the non-party claimed to be peace officer or the
indispensable. If the petitioner/plaintiff refuses to republic officer
implead an indispensable party despite the order of the charged with the
court, the latter may dismiss the complaint/petition. enforcement of the law
violated
Must be filed with Always filed in court
Q: Who is the real party-in-interest and who can
1) a prosecutor,
represent the People before the SC? proper officer,
A: In criminal cases, the People is the real party-in- proper
interest and only the OSG can represent the People in prosecution
the criminal proceedings before this Court, and the office if
private offended party is but a witness in the preliminary
prosecution of offenses whose interest is limited only investigation is
to the civil liability aspect. required or
2) in those
Sec. 3. Complaint defined. Complaint is a sworn instances where
written statement charging a person with an offense, it can be filed
subscribed by the offended party, any peace officer directly in court
or the republic officer charged with the enforcement then that is the
of the law violated. only time that a
complaint may
Complaint - sworn written statement charging a be filed in court.
person with an offense, subscribed by the offended Must be sworn by the No requirement for
people enumerated sworn but must be
party, any peace officer or the republic officer charged
under Section 3 (if filed signed by the public
with the enforcement of the law violated. in court) prosecutor himself
because he is the one
2 types of complaints filing the information
1) complaint filed in court and is acting under the
2) complaint filed with the prosecutor’s office – oath of his office.
may be filed by any person 1) Filed to ‘People of the
prosecutor’s Philippines versus an
Q: What is the nature of the complaint referred to office - accused’
under the Rules? complainant and
A: It contemplates to a complaint filed in court to the respondent’s
commence a criminal action in those cases where a name
complaint of the offended party is required by law, 2) Filed to court -
People of the
instead of an information which is generally filed by a
Philippines
fiscal. This does not refer to a complaint filed with the versus all
prosecutor’s office. persons who
appear to be
Sec. 4. Information defined. An information is an responsible for
accusation in writing charging a person with an the offense
offense subscribed by the fiscal and filed with the involved’.
court.
Q: What if the complaint is not sworn and signed?
Information - an accusation in writing charging a A: If a complaint is not sworn and signed, this is merely
person with an offense subscribed by the fiscal and a formal defect that can be cured by having the
filed with the court complaint signed and sworn to by the person who filed
it.
Elements of an information
1) It is an accusation in writing Section 6. Sufficiency of complaint or information. — A
2) It must charge a person with an offense. complaint or information is sufficient if it states the
3) It must be subscribed by the prosecutor. name of the accused; the designation of the offense
4) It must be filed with the court given by the statute; the acts or omissions
complained of as constituting the offense; the name
20

of the offended party; the approximate date of the A: No. Objections as to matters of form or substance
commission of the offense; and the place where the in the information cannot be made for the first time on
offense was committed. appeal, and failure to object constitute a waiver
When an offense is committed by more than one Q: Can the appellate court dismiss the information for
person, all of them shall be included in the complaint failure to raise the issue of defects in the information?
or information. (6a) A: Yes. The Court may motu propio dismiss the said
information at the appellate stage, because he was not
Test for sufficiency of complaint or information
informed of the nature and cause of the accusation
The test is whether the crime is described in
against him and the basic principles of due process.
intelligible terms with such particularity as to
apprise the accused with reasonable certainty of
xx while a sufficiency of an information may be
the offense charged to enable the accused to suitably assailed, the right to question the sufficiency of the
prepare for his defense. same is not absolute. Further, an accused is deemed
to have waived the right to question the sufficiency
The purpose of the enumeration of the matters which of the complaint or information if he fails to object
should be stated in the complaint or information for it upon his arraignment or during trial. (Friyas v.
to be sufficient, is to inform the accused of the nature People)
and the cause of the accusation against him, a right
guaranteed by no less than our Constitution. The real nature of the criminal charge is determined
not from the caption or the preamble of the
No matter how conclusive and convincing the information or from the specification of the
evidence of guilt may be, an accused cannot be provision of law alleged to have been violated which
convicted of any offense unless it is charged in the are mere conclusions of law, but by the actual
information on which he is tried or is necessarily recital of the facts in the complaint or
included therein. information.
Thus, even if the designation of the crime in the

It must contain the following: information is defective, what is controlling is the
1) name of the accused; allegation of the facts in the information that
2) designation of the offense given by the comprises a crime and adequately describes the
statute; nature and the cause of the accusation against the
3) acts or omissions complained of as accused. (Friyas v. People)
constituting the offense;
 most important Section 7. Name of the accused. — The complaint or
4) name of the offended party; information must state the name and surname of the
5) approximate date of the commission of the accused or any appellation or nickname by which he
offense; and has been or is known. If his name cannot be
6) place where the offense was committed. ascertained, he must be described under a fictitious
7) when an offense is committed by more than name with a statement that his true name is
one person, all of them shall be included in unknown.
the complaint or information.
If the true name of the accused is thereafter
disclosed by him or appears in some other manner
Effect when the complaint or information is to the court, such true name shall be inserted in the
insufficient complaint or information and record. (7a)
Where the complaint or information is insufficient, it
cannot be the basis of any valid conviction Name of the accused
1) Known - The complaint or information must
Q: When should the question on the sufficiency of state the name and surname of the accused or
information be raised? any appellation or nickname by which he has
A: Defect on the sufficiency of complaint or been or is known
information should be raised during the course of trial, 2) Not known - he must be described under a
particularly during arraignment fictitious name with a statement that his true
name is unknown.
Q: What is the effect of failure to object on the defect 3) Unknown at first but thereafter disclosed or
of the complaint or information as regards the identity appeared - such true name shall be inserted in
of the accused? the complaint or information and record
A: Their failure to object to the alleged defect before
entering their pleas of not guilty amounted to a waiver Q: What is the effect of erroneous designation of the
of the defect in the information. name of the accused in the information?
A: The erroneous designation of the name of the
Q: Can an objection as to form or substance be raised accused in the information will not vitiate the
for the first time on appeal?
21

information filed, in so long as, the identity of the a date as near as possible to the actual date of its
accused is clearly proven. commission. (11a)
Thus, in every criminal case, the task of the prosecution GR: It is not necessary to state in the complaint or
is always two-fold: information the precise date of the commission of the
1) To prove beyond reasonable doubt the offense since the offence may be alleged to have
commission of the crime charged. been committed on a date as near as possible to
2) To establish with the same quantum of proof the actual date of its commission
(proof beyond reasonable doubt) the identity XPN: When it is necessary to state the precise date of
of the person/s responsible therefore. the offense considering that the date and even
sometimes the time is a material ingredient of the
Q: What is the consequence if another’s name is placed offense.
in the information?
A: Information is not defective where another name, Q: What is the effect of variance between the time
not the victim’s name, was placed in the information alleged in the information and that established by
since the error is considered merely clerical and not evidence on trial?
substantial. A: A variance between the time set out in the
indictment and that establishment by the evidence
Q: What is the effect if the accused enters his plea during the trial does not constitute an error so serious
under a wrong name? as to warrant reversal of a conviction solely on that
A: An accused who entered a plea of not guilty under score. The only instance where the variance in the date
a wrong name is estopped from later on questioning of commission of the offense as alleged in the
court’s jurisdiction over his person information and as established in evidence becomes
fatal when the discrepancy is so great that it induces the
The reluctance of the offended party in a rape case, perception that the information and the evidence are
in identifying the accused saying, "that it might be no longer pertaining to one and the same offense.
him,” which means that the private offended party
is uncertain as to the identity of the accused, leads Q: When should the date of the commission of the
the Supreme Court to conclude that the identity of offense be alleged in the information?
the accused was not proven. Even if the crime of A: Only when such date is a material ingredient of the
rape was proven beyond reasonable doubt, the offense
accused cannot be convicted based on an uncertain
identification of his identity. However, this does
Q: What is the effect of failure to particularly allege in
not always mean that it is always supposed to be
a direct evidence of the identity of the offender, the information and prove the particular date of the
because positive identification may be in two ways: commission of the crime?
1) A witness may identify a suspect or accused A: The failure of the prosecution to allege with
in a criminal case as the perpetrator of the particularity the date of the commission of the offense
crime as an eyewitness to the very act of and worse, its failure to prove during the trial the date
the commission of the crime. This will of the commission of the offense as alleged in the
constitute direct evidence. (DIRECT information, deprived the accused-appellant of the
EVIDENCE) right to intelligently prepare for his defense and
2) However, there may be instances where convincingly refute the charges against him
there may be a witness who did not actually
see the very act or the commission of the Section 12. Name of the offended party. — The
crime but is still able to positively complaint or information must state the name and
identify a suspect or accused as the surname of the person against whom or against
perpetrator of the crime under the second whose property the offense was committed, or any
type of identification, which forms part of appellation or nickname by which such person has
circumstantial evidence, which, when taken been or is known. If there is no better way of
together with all other pieces of evidence identifying him, he must be described under a
constituting an unbroken chain, leads to fictitious name.
only one fair and reasonable conclusion:
that the accused is the author of the (a) In offenses against property, if the name of the
crime, to the exclusion of all others. offended party is unknown, the property must be
(CIRCUMSTANTIAL EVIDENCE) described with such particularity as to properly
(People v. Tumambing) identify the offense charged.
Section 11. Date of commission of the offense. — It is not (b) If the true name of the of the person against
necessary to state in the complaint or information whom or against whose properly the offense was
the precise date the offense was committed except committed is thereafter disclosed or ascertained, the
when it is a material ingredient of the offense. The court must cause the true name to be inserted in the
offense may be alleged to have been committed on complaint or information and the record.
22

the provision of law alleged to have been

(c) If the offended party is a juridical person, it is violated, they being conclusions of law, but by
sufficient to state its name, or any name or the actual recital of the ultimate facts and
designation by which it is known or by which it may circumstances in the information (Licayco v.
be identified, without need of averring that it is a People)
juridical person or that it is organized in accordance 2) aver the acts or omissions constituting the
with law. (12a) offense – fatal; the allegations of facts
constituting the offense charged are substantial
Name of the offended party
matters and the right of an accused to question
Natural persons
his conviction based on facts not alleged in the
1) Known - The complaint or information must
information cannot be waived
state the name and surname or any appellation
3) specify its qualifying and aggravating
or nickname by which he has been or is known
circumstances – fatal; failure to state a
2) Not known - he must be described under a
qualifying or aggravating circumstance, even if
fictitious
duly proven at trial, will not be appreciated as
such. (People v. Feliciano Jr)
Juridical persons
It is sufficient to state its name, or any name or
DESIGNATION OF OFFENSE
designation by which it is known or by which it may be
The failure to designate the offense given by the
identified, without need of averring that it is a juridical statute or to mention the specific provision
person or that it is organized in accordance with law penalizing the act or an erroneous specification of
the law violated does not vitiate the information if
Offenses against property the facts alleged clearly recite the facts constituting
GR: the crime charged. What controls is not the title of
1) Offended party unknown, property known - the information or the designation of the
the property must be described with such offense, but the actual facts recited in the
particularity as to properly identify the offense information. In other words, it is the recital of facts
charged of the commission of the offense, not the
2) Offended party unknown but later known - If nomenclature, that determines the crime being
the true name of the of the person against charged in the information. (Malto v. People)
whom or against whose properly the offense
was committed is thereafter disclosed or Another important rule in the allegation of or the
ascertained, the court must cause the true name recital of the acts or omissions in the body of the
to be inserted in the complaint or information information – the specific acts of the accused do not
and the record. have to be described in detail in the information as
XPN: robbery with violence and intimidation of it is enough that the offense be described with
persons – there must be allegations in the information sufficient particularity to make sure the accused
of the name of the owner fully understands what he is being charged with.
The particularity must be such that a person of
Q: What is the remedy of a person charged under an ordinary intelligence immediately knows what the
charge is. Moreover, reasonable certainty of the
erroneous name or identity?
crime suffices (Guy v. People).
A: The remedy of a person charged with a wrong name
or identity is to file a motion to quash on the ground AVERMENT OF ACTS AND OMMISSIONS
of lack of jurisdiction over his person. If he voluntarily Q: what if the acts or omissions and the circumstances
appears at the arraignment without questioning the recited in the information are vague or ambiguous or it
jurisdiction of the court over his person and pleads not leads to a conclusion of two or more crimes being
guilty at the charge although under the erroneous charged?
name, the court acquires jurisdiction over him A:
1) If there is a designation of the offense or there
Section 8. Designation of the offense. — The complaint is a section or subsection specified on what law
or information shall state the designation of the
is violated - the designation of the offense or
offense given by the statute, aver the acts or
omissions constituting the offense, and specify its the specification of the provision of law that is
qualifying and aggravating circumstances. If there is violated will control.
no designation of the offense, reference shall be 2) If there is no designation of the offense or
made to the section or subsection of the statute there is no specification of a section or
punishing it. (8a) subsection of a law that is violated and there is
ambiguity in the recital of the acts or omissions
Requirements of designation of offense in the body of the information, the remedies of
1) state the designation of the offense given the accused would be:
by the statute - character of the crime is  Ask a bill of particulars
determined neither by the caption or preamble  File a motion to quash the information
of the information nor by the specification of for failure to state or charge an offense
23

Q: What is the main purpose of alleging in the During the course of the trial, the prosecution was
information the elements constituting the offense? able to prove that the dwelling of the subject of
A: The main purpose of requiring the various elements arson was inhabited. It could have qualified the
of a crime to be set out in the information is to enable arson, but it was not stated in the information that
the accused to suitably prepare his defense because he the dwelling was inhabited. Then the court cannot
is presumed to have no independent knowledge of impose the penalty higher than that of arson since it
the facts that constitute the offense cannot be qualified for failure to state the qualifying
circumstance in the information. (Buebos v.
People)
SPECIFICATION OF QUALIFYING AND
AGRRAVATING CIRCUMSTANCES
The allegation that the offender is the victim’s uncle
1) Qualifying - changes the nature of the crime is not sufficient since the wordings of the statute
and thus increases the degree of the penalty provides that there must be an allegation that if it’s
2) Aggravating - changes the nature of the crime not within the specific list, there must be an
and thus increases the period of the imposable allegation that the relative is the relative by
penalty consanguinity or affinity within the 3rd civil degree.
(People v. Ubiña)
A qualifying circumstance need not be preceded by
descriptive words such as “qualifying” or “qualified The Supreme court said that it is not enough that in
by” to properly qualify an offense. It is not the use the recital of the information there are 3 accused.
of the words “qualifying” or “qualified by” that There should be a specification that the crime was
raises a crime to a higher category, but the specific committed by 2 or more persons. Aside from the
allegation of an attendant circumstance which adds general averment that there are 3 accused, there
the essential element raising the crime to a higher must be a special mention that it is qualified or is
category. As regards aggravating circumstances, the aggravated because it is committed by 2 or more
mere statement of for example “with intent to kill persons. (People v. Alarcon)
qualified by treachery or evident premeditation and
abuse of superior strength”, any which one of the Supreme Court held further that even if you cannot
aggravating circumstances in the RPC is not enough premise the award of exemplary damages to the
if the complaint or information fails to adequately presence of aggravating circumstance, if the crime
describe the circumstances of the aggravating committed is highly reprehensible or outrageous
circumstances. It must be, in some way, described conduct, then exemplary damages can also be
with sufficient particularity although the threshold awarded. (People v. Dalisay)
of the specificity is just that an ordinary person of
ordinary intelligence may immediately know what The allegation in the Information that Maries was his
that particular allegation purports to be. (People v. minor daughter is as a matter of law insufficient to
Rosas) alert him as to the exact nature of the rape imputed
to him. To do so would be to allege a conclusion of
It is sufficient to allege conspiracy as a mode of law to which the plea of not guilty joins no issue. Its
commission of an offense in either of the following effect is the same as alleging negligence without
manners: specifying the facts constituting such want of care or
1) By the use of the word “conspire” or is prudence. In the instant case, the exact age of the
derivatives or synonyms such as victim should have been asserted. Furthermore,
“confederate”, “connive”, “collude”, etc. the term minority is too technical to satisfy the
2) By allegation of basic facts constituting the pleading requirement that acts alleged as crime
conspiracy in a manner that a person of must be averred in a manner that a person of
common understanding would know what common understanding would understand the
was intended and with such precision that offense being charged. Certainly stating the words
would enable the accused to competently fifteen (15) years old, for example, in the
enter a plea to a subsequent indictment of information would signify something more familiar
the same facts In the case cited, the words than the word minority could achieve. (People v.
used to allege conspiracy is the phrase Mascarinas)
“participate in and facilitate” so
according to the SC, the phrase “participate REFERENCE AS TO SECTION OR
in and facilitate” is a clear and definite SUBSECTION OF THE STATUTE
allegation of conspiracy sufficient for the Q: When can reference to the section or subsection of
accused to competently make a plea and
statute be alleged in the information?
make a proper defense. (Francisco v.
People) A: It is only when there is no specific name given to
the offense that reference to the section or subsection
The accused cannot be convicted of qualified rape of the statute punishing it may be made, and this
even if it is proven during trial because the qualifying actually applies to offenses under special laws
circumstance was not alleged in the information.
(People v. Mendoza)
24

Section 9. Cause of the accusation. — The acts or That the accused is the mother of the victim was not
omissions complained of as constituting the offense alleged, therefore it cannot be taken into
and the qualifying and aggravating circumstances consideration as a qualifying circumstance. (People
must be stated in ordinary and concise language and v. Tampus)
not necessarily in the language used in the statute but
in terms sufficient to enable a person of common OTHER RULES
understanding to know what offense is being Libel cases
charged as well as its qualifying and aggravating GR: information must set out the particular
circumstances and for the court to pronounce defamatory words verbatim and as published and that
judgment. (9a) the statement of their substance is insufficient.
XPN: may be cured by evidence presented in court
How to allege in the complaint or information
XPN of XPN: accused objects the presentation of
1) must be stated in ordinary and concise
evidence
language
2) not necessarily in the language used in the
Offenses in relation to public office
statute but in terms sufficient to enable a
GR: if the offense charged against a public officer is
person of common understanding to know
not one of those specifically mentioned under the
what offense is being charged as well as its
Sandiganbayan law but comes under the offenses in
qualifying and aggravating circumstances and
general which may be committed in relation to
for the court to pronounce judgment
public office, then a sufficient description of how that
particular offense was committed in relation to office
This provision prescribes a manner by which acts or
must be recited in the complaint or information.
omissions as well as aggravating and qualifying
XPN: if the offense cannot be committed unless it
circumstances should be alleged in the complaint or
is in relation to office. There is no necessity to
information. The main purpose of the requirement that
specifically allege that it was indeed committed in
the acts or omissions complained of as constituting an
relation to office. It will be a mere superfluity.
offense must be stated in ordinary and concise
language is to enable a person of common
Allegations of negativing exceptions
understanding to know what the offense is intended to
1) Where the statute alleged to have been violated
be charged so that he could suitably prepare for his
applies only to a specific class of persons and
defense.
to special conditions, the complaint or
information must allege facts establishing the
Section 9 of Rule 110 actually complements Rule 110
accused falls within the specific class affected
Section 8 on the designation of the offense because in
and not those exempted from the coverage of
section 9 it specifies how you have to allege or to recite
the law. Otherwise, the complaint or
the acts and omissions constituting the crime being
information is quashable for failure to state
charged or the qualifying or aggravating circumstance.
facts constituting an offense
2) Where the statute penalizes generally the
In People v. Mauricio, the Court elucidated: acts therein defined and is intended to
apply to all persons indiscriminately
"The use of the word 'must' indicates that the
requirement is mandatory, therefore failure to although some special situations are excepted
comply with Sec. 9, Rule 110, means that generic from its coverage, the complaint or
aggravating circumstances, although proven at the information is sufficient even if it does not
trial, cannot be appreciated against the accused if allege that the accused falls within the
such circumstances are not stated in the information. excepted situation for then the complete
It is a cardinal rule that rules of criminal procedure definition of the offense is entirely separable
are given retroactive application insofar as they from the exceptions and can be made without
benefit the accused." (People v. Suela) reference to the latter. If it falls within the
excepted class, the accused may raise is such
The information must allege clearly and accurately fact as a defense.
the elements of the crime charged. The facts and
circumstances are necessary to be included therein Q: What is the effect if the aggravating circumstance is
must be determined by reference to the definition alleged in the information?
and elements of the specific crimes being charged.
A: Award of exemplary damages is justified if an
(Serapio v. Sandiganbayan)
aggravating circumstance, either qualifying or generic,
accompanies the crime
Since the information did not specifically allege the
circumstance that the victim was under PNP custody
during the rape, the trial court cannot appreciate the Furthermore, in People v. Catubig, we held that while
qualifying circumstance and thus can only impose a non-alleged but proven aggravating
the penalty for simple rape. (People v. Aure) circumstance cannot be used to increase the
penalty, nonetheless it can be the source of civil
25

awards. Hence, we retain the trial court's civil grants of criminal intent or purpose, which means that
in this regard. (People v. Suela) two or more violations of the same penal provisions
are united in one and same instant or resolution
Section 13. Duplicity of the offense. — A complaint or leading to the perpetration of the same criminal
information must charge but one offense, except purpose or aim (Santiago v. Garchitorena)
when the law prescribes a single punishment for
various offenses. (13a) Applying the concept of delito continuado, we
treated as constituting only one offense the
Duplicitous complaints or information following cases:
Rule
1) Complaint filed in court – duplicitous (1) The theft of 13 cows belonging to two different
complaints apply owners committed by the accused at the same time
and at the same period of time (People v. Tumlos).
2) Complaint filed to the prosecutor’s office -
(2) The theft of six roosters belonging to two
duplicitous complaints do not apply
different owners from the same coop and at the
same period of time (People v. Jaranillo).
GR: The rule prohibits charging of two or more (3) The theft of two roosters in the same place and
offenses in a single information has for its aim to give on the same occasion (People v. De Leon).
the defendant the necessary knowledge of the charge (4) The illegal charging of fees for services rendered
to enable him to prepare for his defense. The State shall by a lawyer every time he collects veteran's benefits
not heap upon the defendant two or more charges on behalf of a client, who agreed that the attorney's
which might confuse him in his defense fees shall be paid out of said benefits (People v.
XPN: when the law prescribes a single punishment for Sabbun). The collection of the legal fees were
various offenses such as: impelled by the same motive, that of collecting fees
1) Complex crime - a single act constitutes two or for services rendered, and all acts of collection were
more grave or less grave felonies or when an made under the same criminal impulse (People v.
Lawas).
offense is a necessary means in committing the
other On the other hand, we declined to apply the concept
 Compound crime - a single act to the following cases:
constitutes two or more grave or less
grave felonies. (1) Two estafa cases, one of which was committed
 Complex crime proper - offense is a during the period from January 19 to December
necessary means in the commission of 1955 and the other from January 1956 to July 1956
the other (People v. Dichupa). The said acts were committed
on two different occasions.
Q: What is the requirement in case an accused is (2) Several malversations committed in May, June
charged with a complex crime? and July, 1936, and falsifications to conceal said
A: The information charging a complex crime should offenses committed in August and October 1936.
The malversations and falsifications "were not the
allege each element of the component offenses with
result of only one purpose or of only one resolution
the same precision that would be necessary if they were to embezzle and falsify . . ." (People v. Cid).
made the subject of a separate prosecution (3) Two estafa cases, one committed in December
1963 involving the failure of the collector to turn
2) Special complex crime - crimes specifically over the installments for a radio and the other in
named or designated in special penal offenses June 1964 involving the pocketing of the
or under the Revised Penal Code all of which installments for a sewing machine (People v.
are punished with one penalty Ledesma).
(4) 75 estafa cases committed by the conversion by
Special complex Ordinary complex the agent of collections from customers of the
crime crimes employer made on different dates (Gamboa v.
specifically named or applies specifically to Court of Appeals). (Santiago v. Garchitorena)
designated in special felonies defined
penal offenses or under the Revised The accused said that he cannot be charged with
under the Revised Penal Code and is multiple rapes since the rapes occurred within just
Penal Code governed by Article few minutes from each other. He argued that he was
48 of the RPC just motivated by a single criminal intent although
there were breaks in between the several rapes he
3) Continuous crimes – (delito continuado), single committed. The Supreme Court did not agree and
larceny doctrine, a series of act arising from a held that when the accused would rest after carnal
single criminal intent. knowledge or after satisfying his lust upon the victim
and within a sufficient time to regain his strength
would do it again, to do the rape again the carnal
For delito continuado to exist there should be a knowledge to the victim, it can be inferred that the
plurality of acts performed during a period of accused has decided to commit separate and distinct
time; unity of penal provision violated; and unity
26

acts of rape and that he was not merely motivated by imposed in addition to the penalty for the
a single impulse but rather by several criminal crime punishable under the Revised Penal
intents. (People v. Lucena) Code or other special laws of which he/she
is found guilty
XPN of XPN: if there will be double jeopardy
Other circumstances
Cases involving loose firearms 1) If the violation of this Act is in furtherance
REPUBLIC ACT NO. 10591 of, or incident to, or in connection with the
AN ACT PROVIDING FOR A crime of rebellion of insurrection, or
COMPREHENSIVE LAW ON FIREARMS attempted coup d’ etat - such violation shall
AND AMMUNITION AND PROVIDING be absorbed as an element of the crime of
PENALTIES FOR VIOLATIONS THEREOF rebellion or insurrection, or attempted coup d’
SEC. 29. Use of Loose Firearm in the Commission of a Crime.
etat.
– The use of a loose firearm, when inherent in the
2) If the crime is committed by the person
commission of a crime punishable under the Revised
without using the loose firearm - the violation
Penal Code or other special laws, shall be considered
of this Act shall be considered as a distinct
as an aggravating circumstance: Provided, That if
and separate offense.
the crime committed with the use of a loose firearm is
penalized by the law with a maximum penalty which
The Supreme Court said each illegal possession of a
is lower than that prescribed in the preceding section
different type of firearm shall be prosecuted
for illegal possession of firearm, the penalty for illegal separately and not together since the law punishes
possession of firearm shall be imposed in lieu of the different type of firearm with a different penalty.
the penalty for the crime charged: Provided, further, It will not suffice to lump all the seized firearms in
That if the crime committed with the use of a loose one information because the different penalties are
firearm is penalized by the law with a maximum imposed by law depending on the caliber of the
penalty which is equal to that imposed under the weapon seized. To lump them altogether is
preceding section for illegal possession of firearms, the duplicitous. (Fajardo v. People)
penalty of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime Q: What is the effect of the failure to prove a complex
punishable under the Revised Penal Code or other crime?
special laws of which he/she is found guilty. A: It is well settled that where a complex crime is
charged and evidence fails to support the charge as to
If the violation of this Act is in furtherance of, or one of the component offenses, the defendant can be
incident to, or in connection with the crime of convicted only of the offense proved.
rebellion of insurrection, or attempted coup d’
etat, such violation shall be absorbed as an element of Q: What is the remedy against a duplicitous
the crime of rebellion or insurrection, or attempted information? A: Non-compliance with the Rule is a
coup d’ etat. ground for the quashing of a duplicitous complaint or
information under Rule 117 of the Revised Rules on
If the crime is committed by the person without Criminal Procedure.
using the loose firearm, the violation of this Act shall
be considered as a distinct and separate offense. Waiver
The failure to object to a duplicitous information
SUMMARY: before he enters his plea results in a waiver of the right
Penalties to object to it and the court may thereafter convict him
GR: The maximum penalty shall be imposed when the of as many offenses as are charged and proved, and
use of a loose firearm is inherent in the commission impose on him the penalty for each offense setting out
of a crime punishable under the Revised Penal Code separately the findings of fact and law in each offense.
or other special laws.
XPNs: (PENALTY SHOULD BE WHICHEVER Section 15. Place where action is to be instituted. —
IS HIGHER BETWEEN RPC/SPECIAL LAW
PENALTY AND PENALTY UNDER ILLEGAL (a) Subject to existing laws, the criminal action shall
POSSESSION OF FIREARMS) be instituted and tried in the court of the
1) maximum penalty is lower than that prescribed municipality or territory where the offense was
committed or where any of its essential ingredients
in the preceding section for illegal possession
occurred.
of firearm - penalty for illegal possession of (b) Where an offense is committed in a train, aircraft,
firearm shall be imposed or other public or private vehicle while in the course
2) maximum penalty which is equal to that of its trip, the criminal action shall be instituted and
imposed under the preceding section for illegal tried in the court of any municipality or territory
possession of firearms - penalty of prision where such train, aircraft or other vehicle passed
mayor in its minimum period shall be during such its trip, including the place of its
departure and arrival.
27

(c) Where an offense is committed on board a vessel of First Instance of

in the course of its voyage, the criminal action shall the province or city
be instituted and tried in the court of the first port where the libelous
of entry or of any municipality or territory where the article is printed and
vessel passed during such voyage, subject to the first published.
generally accepted principles of international law. 2) If the offended
(d) Crimes committed outside the Philippines but party is a private
punishable under Article 2 of the Revised Penal individual, the
Code shall be cognizable by the court where the criminal action may
criminal action is first filed. (15a) also be filed in the
Court of First
Venue of criminal actions Instance of the
Venue does not only determine the place where the province where he
criminal action is to be constituted, but also the court actually resided at
which has jurisdiction to try and hear the case. When a the time of the
court is found to have no jurisdiction over the territory, commission of the
offense.
the case can be dismissed at any time.
3) If the offended
party is a public
Two-Fold Reason for the Rule: officer whose office
1) The jurisdiction of the trial court is limited to is in Manila at the
well-defined territories, such that a trial court time of the
can only hear and try cases involving crimes commission of the
committed within their territorial jurisdiction. offense, the action
2) Laying the venue in the locus criminis is may be filed in the
grounded on the necessity and justice of having Court of First
an accused on trial in the municipality or Instance of Manila.
province where witnesses and other facilities 4) If the offended
for his defense are available party is a public
officer holding
office outside of
1ST PARAGRAPH
Manila, the action
GR: criminal action shall be instituted and tried in the may be filed in the
court of the municipality or territory where the offense Court of First
was committed or where any of its essential Instance of the
ingredients occurred. province or city
XPN: Subject to existing laws where he held office
at the time of the
Original cases which are GR: Place where the commission of the
cognizable by the said court sits or holds offense. (Agbayani
Sandiganbayan its sessions. v. Sayo)
A criminal action arising 1) RTC of the province
XPN: when the greater from Illegal Recruitment or city where the
convenience of the offense was
accused and the committed OR
witnesses or other 2) where the offended
compelling party actually resides
considerations require a at the time of the
case originating from commission of the
one geographical region offense.
may be heard in another Perjury where the untruthful
geographical region statement under oath
Cases affecting within the concurrent was made and not
ambassadors, public original jurisdiction of where it was used
ministers, and consuls the Supreme Court and BP 22 Continuous crime
Regional Trial Courts.
Libel cases subject of special rules filed in any of the places
of venue under Article where the elements of
360 of the RPC the offense occurred,
that is, where the check
1) Whether the is issued, delivered,
offended party is a drawn, or dishonored
public official or a Estafa by postdating or Continuous crime
private person, the issuing a bad check
criminal action may
be filed in the Court
28

filed in any of the places 2) of any municipality or territory where the

where the elements of vessel passed during such voyage
the offense occurred XPN: subject to the generally accepted principles of
Theft Not a continuous crime international law
 crimes in the high seas – jurisdiction is
filed where the crime of determined by the place of registration
theft was consummated of the vessel
Cybercrime law 1) Designated
cybercrime court of
the province or city 4th PARAGRAPH
where the offense or RULE: Crimes committed outside the Philippines but
any of its elements is punishable under Article 2 of the Revised Penal Code
committed shall be cognizable by the court where the criminal
2) Where any part of action is first filed. Once it is filed there, it is to the
the computer system exclusion of all other courts.
used is situated
3) Where any of the Philippine ship or Foreign ship or
airship airship
damage caused to a WITHIN TRIABLE TRIABLE
juridical or natural JURISDICTION (TERRITORIALITY) (TERRITORIALITY)
XPN: war ships –
person took place considered an extension
of the country
OUTSIDE TRIABLE NOT TRIABLE
The court where the JURISDICTION
WITHIN
(EXTRATERRITORIALITY)
ENGLISH RULE NOT TRIABLE
criminal action is first JURISDICTION OF
ANOTHER
filed shall acquire COUNTRY
jurisdiction to the
exclusion of other *EEZ - considered not as territory of the Philippines,
courts but as high seas
Criminal action In a judicial region other
involving public officials than where the official Power of the SC to change venue or place
falling under the holds office
Section 5 (4) Article VIII, 1987 Constitution
jurisdiction of RTC
SECTION 5. The Supreme Court shall have the
following powers:
The first place where the material was accessed xxx
cannot be equated with “printing and first
4) Order a change of venue or place of trial to avoid
publication” (Bonifacio v. RTC) a miscarriage of justice.
The allegations in the Information that "Panay In applying the standards of miscarriage of justice, the
News, a daily publication with a considerable
Court will evaluate which court would be in a better
circulation in the City of Iloilo and throughout the
region" only showed that Iloilo was the place where position to serve the interest of justice, taking into
Panay News was in considerable circulation but did account
not establish that the said publication was printed 1) The nature of the controversy;
and first published in Iloilo City. (Foz v. People) 2) Accessibility of the court to the parties; and
3) Other similar factor
2nd PARAGRAPH
RULE: Where an offense is committed in a train, Venue for CICL
aircraft, or other public or private vehicle while in the Age of criminal responsibility: above 15 but below 18
course of its trip, the criminal action shall be instituted years old *who committed an offense with
and tried discernment
1) in the court of any municipality or territory
where such train, aircraft or other vehicle Sec. 23 of the 2019 SC Revised Rule on CICL provides,
passed during such trip subject the provision of Sec. 15, Rule 110 of the
2) including the place of its departure and Revised Rules on Criminal Procedure, any criminal or
arrival. civil action involving a CICL shall be instituted and
tried
Carnapping - is a continuing crime. Section 15(b) shall 1) in the appropriate court nearest the place
apply where the offense was committed or
2) where any of its essential elements occurred
3RD PARAGRAPH
GR: Where an offense is committed on board a vessel Section 14. Amendment or substitution. — A complaint
in the course of its voyage, the criminal action shall be or information may be amended, in form or in
instituted and tried substance, without leave of court, at any time before
1) in the court of the first port of entry or the accused enters his plea. After the plea and during
the trial, a formal amendment may only be made
29

with leave of court and when it can be done without Gabionsa v CA

causing prejudice to the rights of the accused. 1) It does not deprive the accused of the right to
invoke prescription;
However, any amendment before plea, which 2) It does not affect or alter the nature of the
downgrades the nature of the offense charged in or offense originally charged
excludes any accused from the complaint or 3) It does not involve a change in the basic theory
information, can be made only upon motion by the of the prosecution so as to require the accused
prosecutor, with notice to the offended party and
to undergo any material change or
with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall modification in his defense.
be furnished all parties, especially the offended party. 4) It does not expose the accused to a charge
(n) which would call for a higher penalty; and
5) It does not cause surprise nor deprive the
If it appears at any time before judgment that a accused of an opportunity to meet the new
mistake has been made in charging the proper averment
offense, the court shall dismiss the original Ricarze v. CA
complaint or information upon the filing of a new 6) New allegations which relate only to the range
one charging the proper offense in accordance with of penalty that the court may impose in the
section 19, Rule 119, provided the accused shall not event of a conviction;
be placed in double jeopardy. The court may require 7) An amendment which does not charge another
the witnesses to give bail for their appearance at the
offense different or distinct from that charged
trial. (14a)
in the original one;
8) Additional allegation which does not alter the
Amendment or substitution
prosecution's theory of the case so as to cause
AMENDMENT
surprise to the accused and affect the form of
Before plea After plea
defense he has or will assume;
1) Formal amendments 1) Formal amendments
2) Substantial 9) An amendment which does not adversely
amendments affect any substantial right of the accused; and
GR: Without leave of With leave of court if it 10) An amendment that merely adds specifications
court can be done without to eliminate vagueness in the information and
XPNs: causing prejudice to the not to introduce new and material facts and
1) Any amendment rights of the accused merely state with additional precision
which downgrades something which is already contained in the
the nature of the original information, and which adds nothing
offense charged in essential for conviction for the crime charged.
2) excludes any accused Pacoy v. Judge Cajigal
from the complaint 11) Amendment to change the designation of the
or information offense from homicide to murder - based on
the facts and the circumstances of this case,
Must be with leave of
court + motion of the what was originally charged was actually
prosecutor + notice to murder.
the offended party Almeda v. Judge Villaluz
12) Adding of the allegation of habitual
Q: What is the TEST to determine whether or not an delinquency and recidivism in the original
accused will be prejudiced by an amendment? information involving qualified theft - only
A: The test as to when the rights of an accused are changes the penalty which later on may be
prejudiced with the amendment of the complaint or imposed on the accused
information is when the defense under the Tehankee v. Madayag
complaint or information as originally stood will 13) From frustrated murder to murder
no longer be available after the amendment is Buhat v. CA
made, and when any evidence the accused might 14) additional allegation of conspiracy where the
have would be inapplicable to the complaint or participation of the accused as a principal
information as amended.
Substantial amendments
Amendment – refers to the modification of a 1) An amendment which changes the manner of
complaint or information by the public prosecutor the commission of the offense
which changes its form or substance. It can be: 2) An amendment which changes the name of the
1) Formal – does not change the nature of the offended party in cases where the identity of
offense the offended party is an element or is a
2) Substantial – changes the nature of the offense necessary ingredient of the crime charged
3) An amendment to change the date of the
Formal amendments commission of the offense over a wide span
30

of time (more than 3 years). So long as it is the filing of the new information charging the proper
within the range of the change in the date, then offense.
it will just be considered as a formal
amendment Test in determining the identity of the offenses
4) An amendment for the purpose of making the There is an identity between the two offenses
information charge an offense when the 1) when the evidences to support a conviction
original information does not charge any of one offense would be sufficient to
offense. warrant a conviction to the other or
5) An amendment which changes the fact or 2) when the second offense is exactly the
ground of responsibility of the accused. same as the first or
Montenegro v. People 3) when the second offense is an attempt to
commit or frustration of or when it
6) From robbery to robbery in an uninhabited
necessarily includes or necessarily
place included in the offense charged in the
People v. Sandoval first information
7) Amendment in the relationship of the accused
to the victim in rape cases Amendment Substitution
May be made before or after the defendant pleads
Objection to the information or complaint must be May involve formal or Necessarily involves a
placed at the time the amendment is made, substantial changes substantial change
otherwise, accused silence would be deemed consent (wholly different) from
on his part to the amendment. (People v. Janairo) the original charge
GR: Without leave of Substitution of
A careful scrutiny of the rule on amendment, court information must always
although it uses singular word complaint or XPNs: be with leave of court as
information it doesn’t mean that two or more 3) Any amendment the original information
complaints or information cannot be amended into which downgrades has to be dismissed.
only one information. Surely, such could not have the nature of the
been intended by the SC. Otherwise, there can be an offense charged in
absurd situation where two or more complaints or 4) excludes any accused
information could no longer be amended into one from the complaint
information (Fronda-Baggao v. People) or information
SUBSTITUTION Must be with leave of

If it appears at any time before judgment that a court + motion of the
mistake has been made in charging the proper prosecutor + notice to
offense, the court shall dismiss the original the offended party
complaint or information upon the filing of a Where the amendment is The retaking of the plea
new one charging the proper offense in only as to form, there is of the accused in
accordance with section 19, Rule 119, provided the no need to another substitution of
accused shall not be placed in double jeopardy. The preliminary investigation information, another
court may require the witnesses to give bail for their preliminary investigation
appearance at the trial. (14a) is entailed and accused
has to plead anew the
RULE 119 new information
Sec. 19. When mistake has been made in charging the proper An amended Substitution requires or
offense. – When it becomes manifest at any time information refers to the presupposes that the
before judgment that a mistake has been made in same offense charge in new information
charging the proper offense and the accused the original information involves a different
cannot be convicted of the offense charged or or to an offense which offense which does not
any other offense necessarily included therein, necessarily includes or is include or is not
the accused shall not be discharged if there necessarily included in necessarily included in
appears good cause to detain him. In such case, the original charge. the original charge,
the court shall commit the accused to answer for the hence, the accused
proper offense and dismiss the original case upon cannot claim double
the filing of the proper information. jeopardy
There can only be a substitution of the offense charged RULE 111

is wholly different from the offense that is proven. If PROSECUTION OF CIVIL ACTION
not wholly different, there may be double jeopardy.
Section 1. Institution of criminal and civil actions. — (a)
When substitution is proper, the court will dismiss the When a criminal action is instituted, the civil action
for the recovery of civil liability arising from the
original charge or the original information only upon
offense charged shall be deemed instituted with the
criminal action unless the offended party waives the
31

civil action, reserves the right to institute it separately Art. 104. What is included in civil liability. — The civil
or institutes the civil action prior to the criminal liability established in Articles 100, 101, 102, and 103
action. of this Code includes:
1) Restitution;
The reservation of the right to institute separately 2) Reparation of the damage caused;
the civil action shall be made before the prosecution 3) Indemnification for consequential damages.
starts presenting its evidence and under
circumstances affording the offended party a The substantive basis for this two-pronged aspect of a
reasonable opportunity to make such reservation. criminal action is Article 100 of the Revised Penal
Code.
When the offended party seeks to enforce civil
liability against the accused by way of moral,
Art. 100. Civil liability of a person guilty of felony. —
nominal, temperate, or exemplary damages without
Every person criminally liable for a felony is also
specifying the amount thereof in the complaint or
civilly liable.
information, the filing fees thereof shall constitute a
first lien on the judgment awarding such damages.
GR: When a criminal action is instituted, the civil
Where the amount of damages, other than actual, is action for the recovery of civil liability arising from the
specified in the complaint or information, the offense charged shall be deemed instituted with the
corresponding filing fees shall be paid by the criminal action
offended party upon the filing thereof in court.
XPN:
Except as otherwise provided in these Rules, no 1) When the offended party waives the civil action
filing fees shall be required for actual damages. 2) When he reserves the right to institute the civil
action separately –
No counterclaim, cross-claim or third-party Purpose: The purpose of this rule requiring
complaint may be filed by the accused in the criminal reservation is to prevent the offended party
case, but any cause of action which could have been
from recovering damages twice for the same
the subject thereof may be litigated in a separate civil
action. (1a) act or omission
Effect: loses his right to intervene in the
(b) The criminal action for violation of Batas prosecution of the criminal case for this reason
Pambansa Blg. 22 shall be deemed to include the he no longer has any right nor should he be
corresponding civil action. No reservation to file expected to move for reconsideration of much
such civil action separately shall be allowed. less appeal from the decision in the criminal
case insofar as it decides the question of civil
Upon filing of the aforesaid joint criminal and civil indemnity
actions, the offended party shall pay in full the filing 3) When he institutes the civil action prior to the
fees based on the amount of the check involved, criminal action
which shall be considered as the actual damages Effect: The effect of the institution of the civil
claimed. Where the complaint or information also action prior to the criminal action is that the
seeks to recover liquidated, moral, nominal,
private offended party has abandoned his right
temperate or exemplary damages, the offended party
shall pay additional filing fees based on the amounts to press recovery for the civil liability ex delicto
alleged therein. If the amounts are not so alleged but in the criminal case and has opted instead to
any of these damages are subsequently awarded by recover them in a separate civil action.
the court, the filing fees based on the amount 4) When the civil action is based on Article 32, 33,
awarded shall constitute a first lien on the judgment. 34 and 2176 of the Civil Code otherwise
known as independent civil action
Where the civil action has been filed separately and Effect: the offended party can file two separate
trial thereof has not yet commenced, it may be suit for the same act or omission.
consolidated with the criminal action upon 1) The first is a criminal case where the civil
application with the court trying the latter case. If the action to recover civil liability ex delicto is
application is granted, the trial of both actions shall deemed instituted.
proceed in accordance with section 2 of this Rule
2) And the other is a civil case for the quasi-
governing consolidation of the civil and criminal
actions. (cir. 57-97) delict without violating the rule on non-
forum shopping.
Two aspects of a criminal action
1) Criminal No reservation allowed
2) Civil – civil liability ex delicto 1) The civil action arising from violation of Batas
Pambansa Blg. 22.
Civil liability ex delicto XPN: The following are allowed
 To waive civil action ex delicto in
relation to the BP 22 case 2.
32

 To file the civil action in relation to BP a first lien on the judgment awarding such
22 case prior to the institution of the damages.
criminal action for BP 22. XPN: the damages is specified in amount and the
other damages were eventually given to the court but
When you file the BP 22 case, since the civil liability there was no specification in the complaint or
ex delicto is deemed instituted, the civil case that you information - the corresponding filing fee shall be paid
filed prior will be dismissible. It has to be litigated in by the offended party upon the filing thereof in court.
the criminal action because of the rules that provides
that the civil liability ex delicto is deemed instituted Rule in BP 22 cases
in the BP 22 case. 1) The actual damages is the amount that it
reflected in the check subject of the BP 22 case
The proper action would be to consolidate the
- there is corresponding filing fees in BP 22
previously filed civil action in relation to the action
in the B.P. 22 case and consolidate it to the criminal cases.
action that was subsequently filed. (Hyatt 2) if nominal damages, moral damages, temperate
Industrial v. Asia Dynamic) damages or exemplary damages are specifically
alleged with specific amount - pay the
There can be no separate, independent civil action corresponding filing fees at the start or at the
grounded on fraud but the allegation is the violation institution of the criminal action
of B.P. 22 because of the rule that the civil liability 3) if nominal damages, moral damages, temperate
ex delicto is deemed instituted in the criminal action, damages or exemplary damages are specifically
there is no reservation allowed. Even an alleged without specific amount - after the
independent civil action even if phrased as fraud, as award is granted, the filing fees, based on the
provided under Article 33 of the Civil Code, the case amount awarded shall constitute as a first lien
will not be allowed because essentially it would still on the judgment
be recovery of the amount subject to B.P. 22 case.
(Heirs of Simon v. Chan) Damages when death occurs
In relation to the award of damages when death occurs
2) The civil action for the recovery of civil liability
as a result of the crime, the heirs of the deceased are
arising from cases falling under the jurisdiction
entitled to the following items of damages:
of the Sandiganbayan or other appropriate
1) Indemnity for the death of the victim of the
courts involving public officers.
offense;
3) The civil action for the recovery of the civil
2) Indemnity for the loss of earning capacity of
liability for taxes and penalties in criminal
the deceased;
offenses arising from violations of the National
3) Moral damages for mental anguish;
Internal Revenue Code (NIRC) or Tariff and
4) Exemplary damages; and
Customs Code and other laws administered by
5) Attorney’s fees and expenses of litigation.
the Bureau of Internal Revenue or Bureau of
6) Interest may also be granted by the court in
Customs
proper cases.
Filing fees and other damages
Counterclaim, cross-claim or third-party
Filing fees
complaint
GR: Actual damages – no filing fees
No counterclaim, cross-claim or third-party
XPN: BP 22 - Upon filing of the aforesaid joint
complaint may be filed by the accused in the criminal
criminal and civil actions, the offended party shall pay case, but any cause of action which could have been
in full the filing fees based on the amount of the the subject thereof may be litigated in a separate civil
check involved, which shall be considered as the action.
actual damages claimed.
Counterclaim - any claim which a defending party
Indemnification for consequential damages may have against an opposing party
1) Moral Cross-claim – any claim of a certain amount or the
2) Exemplary whole amount or a course of action against co-
3) Nominal defendant
4) Temperate Third-party complaint - a claim that it, if any, party
5) Actual may with leave of court file against a person, not a party
to the action called a third party defendant for
GR: To all other cases, when the offended party seeks contribution, indemnity, subrogation or any other
to enforce civil liability against the accused by way of relief in respect of his or her opponents’ claim.
moral, nominal, temperate, or exemplary damages
without specifying the amount thereof in the complaint Counterclaim, cross claim, third party complaint the
or information, the filing fees thereof shall constitute course of action of the offender or the accused can
33

proceed simultaneously and independently of the  right of the prosecution to cross-

criminal action. examine the witnesses presented by the
offended party in the criminal case
Consolidation of the civil and criminal actions  right to present additional evidence.
A situation wherein the civil action is filed separately in 2) power to issue preliminary and auxiliary writs
the trial of the civil action has not yet commenced. such as preliminary injunction, attachment,
It may then be consolidated with the criminal action appointment of a receiver, fixing the amount
upon application with a court trying the latter case. of bonds to be filed, and other processes of
similar nature none of which goes into the
Section 2. When separate civil action is suspended. — merits of the case
After the criminal action has been commenced, the 3) During the pendency of the criminal action, the
separate civil action arising therefrom cannot be running period of prescription of the civil
instituted until final judgment has been entered in action which cannot be instituted separately or
the criminal action. whose proceeding has been suspended shall be
tolled.
If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before Application
judgment on the merits. The suspension shall last The rule does not apply to the civil action arising from
until final judgment is rendered in the criminal other sources of obligations: law, quasi-delict, quasi-
action. Nevertheless, before judgment on the merits contract because this can proceed independently of
is rendered in the civil action, the same may, upon criminal action
motion of the offended party, be consolidated with 1) The independent civil actions in cases under
the criminal action in the court trying the criminal Art 32,33, 34 and 2176 of Civil Code because
action. In case of consolidation, the evidence already you can file this independently, you do not
adduced in the civil action shall be deemed have to wait for the criminal action to attain
automatically reproduced in the criminal action finality status.
without prejudice to the right of the prosecution to
2) If the case of separate civil action involves a
cross-examine the witnesses presented by the
offended party in the criminal case and of the parties prejudicial question determinative of whether
to present additional evidence. The consolidated the criminal action may proceed or not.
criminal and civil actions shall be tried and decided 3) When the civil case is subsequently
jointly. consolidated in the criminal action under this
section of Rule 111.
During the pendency of the criminal action, the 4) When the civil action does not seek to enforce
running of the period of prescription of the civil civil liability arising from the offenses such as
action which cannot be instituted separately or civil action for legal separation arising from the
whose proceeding has been suspended shall be crime of concubinage
tolled. (n) 5) When the civil action is ex contractu and not
ex delicto, or is based on quasi-delict
The extinction of the penal action does not carry
with it extinction of the civil action. However, the
Extinction
civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment GR: The extinction of the penal action does not
in the criminal action that the act or omission from carry with it extinction of the civil action.
which the civil liability may arise did not exist. (2a) Extinguishment of criminal action
1) The death of the accused
Commencement of criminal or civil action 2) Dismissal of the criminal action
1) Criminal Separate civil action - cannot be XPN: civil action based on delict shall be deemed
instituted until final judgment has been entered extinguished if there is a finding in a final judgment in
in the criminal action the criminal action that the act or omission from which
2) Separate civil action Criminal - the latter the civil liability may arise did not exist.
shall be suspended in whatever state it may be 1) Acquittal of the accused
found before judgment on the merits. The  Acquittal on the ground that the
suspension shall last until final judgment is accused is not the author of the act or
rendered in the criminal action. omission complained of.
XPN of XPN:
Reliefs while the civil action is suspended 1) Acquittal is one based on reasonable doubt on
1) consolidate the civil action in the criminal the guilt of the accused.
action Effects: 2) Where the court expressly declares that the
 the evidence already adduced in the liability of the accused is not criminal but only
civil action shall be deemed civil in nature.
automatically reproduced in the
criminal action
34

3) Where the civil liability is not derived from or or impairs any of the following rights and liberties of
based on the criminal act on which the accused another person shall be liable to the latter for
is acquitted. damages:
Q: What are the effects of the extinction of civil (1) Freedom of religion;
liability to the criminal action? (2) Freedom of speech;
A: A judge cannot dismiss a criminal case because the (3) Freedom to write for the press or to maintain a
periodical publication;
civil liability has been paid. While there may be a
(4) Freedom from arbitrary or illegal detention;
compromise upon civil liability arising from the (5) Freedom of suffrage;
offense, such compromise shall not extinguish the (6) The right against deprivation of property without
public action for the imposition of legal penalty. due process of law;
Payment is actually not one of the modes of (7) The right to a just compensation when private
extinguishing criminal liability. property is taken for public use;
(8) The right to the equal protection of the laws;
Q: What is the effect on judgement in a civil case (9) The right to be secure in one's person, house,
absolving the defendant to the criminal case? papers, and effects against unreasonable searches
A: A final judgement rendered in a civil action and seizures;
absolving the defendant from civil liability is not a bar (10) The liberty of abode and of changing the same;
to a criminal action for the same act or omission (11) The privacy of communication and
correspondence;
subject of the civil action.
(12) The right to become a member of associations
or societies for purposes not contrary to law;
Q: What is the effect of the acquittal of the accused to (13) The right to take part in a peaceable assembly to
his administrative case? petition the Government for redress of grievances;
A: Even if the accused is acquitted in his criminal case, (14) The right to be a free from involuntary servitude
it does not absolve him in his administrative case. The in any form;
threshold in admin cases is only substantial evidence or (15) The right of the accused against excessive bail;
a scintilla of proof or reasonable evidence that will (16) The right of the accused to be heard by himself
support a conclusion. and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy and
Section 3. When civil action may proceeded independently. public trial, to meet the witnesses face to face, and
— In the cases provided for in Articles 32, 33, 34 to have compulsory process to secure the attendance
and 2176 of the Civil Code of the Philippines, the of witness in his behalf;
independent civil action may be brought by the (17) Freedom from being compelled to be a witness
offended party. It shall proceed independently of the against one's self, or from being forced to confess
criminal action and shall require only a guilt, or from being induced by a promise of
preponderance of evidence. In no case, however, immunity or reward to make such confession, except
may the offended party recover damages twice for when the person confessing becomes a State
the same act or omission charged in the criminal witness;
action. (3a) (18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed or
Independent civil actions inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
1) the failure to make a reservation in the criminal
(19) Freedom of access to the courts.
action, i.e. to file separately any of this action
provided under Article 32, 33, 34 and 2176, is In any of the cases referred to in this article, whether
not a waiver of the right to file a separate civil or not the defendant's act or omission constitutes a
action based on this Articles of the Civil Code criminal offense, the aggrieved party has a right to
2) civil actions not based on the criminal actions commence an entirely separate and distinct civil
3) the grant under Articles 32, 33, 34 and 2176 of action for damages, and for other relief. Such civil
the Civil Code are substantive in nature, this is action shall proceed independently of any criminal
part of substantive law therefore the right to prosecution (if the latter be instituted), and may be
file the same cannot be diminished, increased proved by a preponderance of evidence.
or modified by the Rules of Court without
offending the Constitution. The indemnity shall include moral damages.
4) an independent civil action separately and Exemplary damages may also be adjudicated.
independently simultaneous with the criminal
The responsibility herein set forth is not demandable
action. That is on top of the civil liability ex from a judge unless his act or omission constitutes a
delicto which may be prosecuted or violation of the Penal Code or other penal statute.
deemed instituted in the criminal action.
Article 33. In cases of defamation, fraud, and
Article 32. Any public officer or employee, or any physical injuries a civil action for damages, entirely
private individual, who directly or indirectly separate and distinct from the criminal action, may
obstructs, defeats, violates or in any manner impedes be brought by the injured party. Such civil action
35

shall proceed independently of the criminal 1) By the death of the convict, as to the personal
prosecution, and shall require only a preponderance penalties and as to pecuniary penalties, liability
of evidence. therefor is extinguished only when the death of
the offender occurs before final judgment.
Article 34. When a member of a city or municipal xxx
police force refuses or fails to render aid or
protection to any person in case of danger to life or Effects to civil actions
property, such peace officer shall be primarily liable
for damages, and the city or municipality shall be DEPENDENT ACTIONS
subsidiarily responsible therefor. The civil action To civil actions: EXTINGUISHED
herein recognized shall be independent of any 1) Purely person action - The death of a party will
criminal proceedings, and a preponderance of completely extinguish the claim or the action
evidence shall suffice to support such action. which is purely personal
2) Civil Actions involving the performance that
Article 2176. Quasi-Delict. Whoever by act or cannot be purely delegated
omission causes damages to another, there being
3) Claims that cannot be instituted by the
fault or negligence is oblige to pay for the damage
done. Such fault or negligence is if there is no pre- executor or administrator of the deceased
existing contractual relation between the parties is person
called quasidelict is governed by the provisions of
Chapter 2, Title XVII of the Civil Code. NOT EXTINGUISHED
1) Recovery of contractual money, (based on
Under here, same act or omission can create two kinds contracts)
of liability on the part of the offender; that is: 2) Recovery or protection of property rights,
1) civil liability ex delicto such as reckless 3) Recovery of real and personal property or
imprudence resulting to homicide and/or interest,
damage to property; and 4) Enforcement of a lien,
2) liable for quasi-delict or civil liability under Art. 5) Recovery of damages to injury of a person of
2176 of Civil Code. property and suits by reason of the alleged
tortuous acts of the defendant, and (torts and
Section 4. Effect of death on civil actions. — The death quasi-delicts)
of the accused after arraignment and during the 6) Ejectment cases
pendency of the criminal action shall extinguish the
civil liability arising from the delict. However, the INDEPENDENT CIVIL ACTIONS
independent civil action instituted under section 3 of NOT EXTINGUISHED
this Rule or which thereafter is instituted to enforce 1) . It shall be the duty of his counsel to inform
liability arising from other sources of obligation may the court within 30 days after such death of the
be continued against the estate or legal fact thereof and give the names and addresses
representative of the accused after proper
of his legal representative/s
substitution or against said estate, as the case may be.
2) The failure of the counsel to comply is a
The heirs of the accused may be substituted for the
deceased without requiring the appointment of an ground for disciplinary action.
executor or administrator and the court may appoint
a guardian ad litem for the minor heirs. 1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as
The court shall forthwith order said legal well as the civil liability based solely thereon. As
representative or representatives to appear and be opined by Justice Regalado, in this regard, "the death
substituted within a period of thirty (30) days from of the accused prior to final judgment terminates his
notice. criminal liability and only the civil liability directly
arising from and based solely on the offense
A final judgment entered in favor of the offended committed, i.e., civil liability ex delicto in senso
party shall be enforced in the manner especially strictiore."
provided in these rules for prosecuting claims 2. Corollarily, the claim for civil liability survives
against the estate of the deceased. notwithstanding the death of accused, if the same
may also be predicated on a source of obligation
If the accused dies before arraignment, the case shall other than delict. Article 1157 of the Civil Code
be dismissed without prejudice to any civil action the enumerates these other sources of obligation from
offended party may file against the estate of the which the civil liability may arise as a result of the
deceased. (n) same act or omission:
a) Law
Effects of death to criminal actions b) Contracts
Art. 89. How criminal liability is totally extinguished. — c) Quasi-contracts
Criminal liability is totally extinguished: d) . . .
e) Quasi-delicts
36

3. Where the civil liability survives, as explained in The reason behind the principle of a prejudicial
Number 2 above, an action for recovery therefor question is to avoid two conflicting decisions in the
may be pursued but only by way of filing a civil case and in the criminal case.
separate civil action and subject to Section 1,
Rule 111 of the 1985 Rules on Criminal Applicability
Procedure as amended. This separate civil action 1) the civil action referred to in issues of
may be enforced either against the prejudicial question is not the civil action
executor/administrator or the estate of the accused,
involving the civil liability ex delicto.
depending on the source of obligation upon which
the same is based as explained above. 2) it can be law contract or quasi contract, but it
4. Finally, the private offended party need not fear a cannot involve separate civil action under
forfeiture of his right to file this separate civil action Article 32, 33, 34, 2176 or those independent
by prescription, in cases where during the civil action because as to those kinds of civil
prosecution of the criminal action and prior to its action, a prejudicial question cannot arise
extinction, the private-offended party instituted 3) based on other sources of obligation such as
together therewith the civil action. In such case, the contract, quasi-contract or law
statute of limitations on the civil liability is deemed 4) If both are civil cases, then there is no
interrupted during the pendency of the criminal case, prejudicial question.
conformably with provisions of Article 1155 21 of 5) If both are criminal cases, then again, no
the Civil Code, that should thereby avoid any prejudicial question.
apprehension on a possible privation of right by
6) If both are administrative cases or one is
prescription.
administrative while the other is criminal, then
(People v. Bayotas)
there is no prejudicial question.
Section 5. Judgment in civil action not a bar. — A final
judgment rendered in a civil action absolving the Q: Who files the petition for suspension in the criminal
defendant from civil liability is not a bar to a criminal case when there is prejudicial question?
action against the defendant for the same act or A: The rule is actually silent on who should file the
omission subject of the civil action. (4a) petition for suspension. It is admitted that the accused
or even the prosecution can file a petition to suspend
This applies when the civil action was separately filed based on prejudicial question.
and decided prior to the institution of the criminal
action or when the independent civil action that Q: Where do you file a petition to suspend a criminal
proceeded independently with the criminal action was action based on prejudicial question?
decided ahead of the criminal action. A:
1) When the criminal action is still pending
Section 6. Suspension by reason of prejudicial question. — preliminary investigation with the office of
A petition for suspension of the criminal action the prosecutor, then you can file for
based upon the pendency of a prejudicial question in suspension in the proper office where the
a civil action may be filed in the office of the officer conducting the preliminary
prosecutor or the court conducting the preliminary investigation is.
investigation. When the criminal action has been 2) If directly filed in court, prejudicial question is
filed in court for trial, the petition to suspend shall filed it in the court where the criminal action is
be filed in the same criminal action at any time spending
before the prosecution rests. (6a)
The previously instituted civil action in this case is a
Section 7. Elements of prejudicial question. — The
declaration of nullity of marriage. Subsequently, a
elements of a prejudicial question are: (a) the
criminal action for frustrated parricide was filed. In
previously instituted civil action involves an issue
that criminal action, there was a motion to suspend
similar or intimately related to the issue raised in the
criminal proceedings because of alleged prejudicial
subsequent criminal action, and (b) the resolution of
question. The SC said that at the time of the
such issue determines whether or not the criminal
commission of the alleged crime, petitioner and
action may proceed. (5a)
respondent were married. The subsequent
dissolution of their marriage in the previously
Prejudicial question instituted civil action will have no effect on the
It is a question based on a fact distinct and separate alleged crime that was committed at the time of
from the crime, but so intimately connected with it that the subsistence of their marriage. (Pimentel v.
it determines the guilt or innocence of the accused. It Pimentel)
is a question which arises in a case, the resolution of
which is a logical antecedent of the issue involved in There are 2 separately instituted civil actions in this
the said case and the cognizance of which pertains to case. 1) For sum of money; 2) The cancellation of
another tribunal mortgage, delivery of title, and damages. The issues
in these previously instituted civil action is one
Rationale of prejudicial questions whether a loan was obtained and whether a
37

mortgage was executed in relation to that loan. The

subject matter of the subsequently filed criminal The previously instituted civil case is an
action of perjury was lying in an affidavit of loss to administrative case for the specific performance
support the request for issuance of a new owner’s before the Housing Land Use Regulatory Board.
duplicate copy of the certificate of title. There was Subsequently, a criminal action for violation of PD
no prejudicial question (Magestrado v. People) 957 for non-delivery of titles in violation of the
applicable provisions of PD 957. It is essentially of
The previously filed civil action in the case of Yap the same issue but the modes of enforcing the
vs. Cabales was a civil action for collection of a sum actions were different. One is in an administrative
of money. Therefore, the issue in a collection suit for body and the other is a criminal action in court. The
sum of money - whether or not the defendant is Supreme Court said that it is a prejudicial question –
liable to pay the plaintiff a sum of money. It does not the specific performance case filed in the HULRB
answer whether or not the accused in a BP 22 case and therefore the subsequently filed criminal action
issued a bad check. (Yap v. Cabales) based on the violation of PD 957 should be
suspended. (San Miguel Properties v. Perez)
The previously instituted civil action there was
declaration of nullity of interest of five percent per
day. The offender issued a check and eventually it PRELIMINARY INVESTIGATION
bounced. Therefore, there is a criminal action for BP
22. the moment that he signed a check, the check RULE 112
issued to the plaintiff and deposited the check to the Section 1. Preliminary investigation defined; when required.
bank and the bank eventually dishonored it, that — Preliminary investigation is an inquiry or
already consummates BP 22. (Jose v. Suarez) proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a
In the previously instituted civil action, there was an crime has been committed and the respondent is
issue whether or not novation took place in the probably guilty thereof, and should be held for trial.
obligation of the parties in the civil case. The
determination whether there was a novation again Except as provided in section 7 of this Rule, a
will not affect the determination of whether or not preliminary investigation is required to be conducted
there was an issuance of a bad check – a check issued before the filing of a complaint or information for
and there after dishonored. Thus, there is no an offense where the penalty prescribed by law is at
prejudicial question in this case. (Landbank v. least four (4) years, two (2) months and one (1) day
Jacinto) without regard to the fine. (1a)
The previously instituted civil action in this case is DEFINITION OF “PRELIMINARY

the declaration of nullity of the appointments of the INVESTIGATION”
corporate officers then the subsequent criminal The inquiry or proceeding, that is the preliminary
action that was filed was two counts of Estafa for investigation, is to determine whether there is sufficient
failure to return company cars entrusted to a ground to engender a well-founded belief. This is what
previous officer. The old officers then filed for
we call the probable cause in preliminary investigation,
suspension of the criminal action based on
prejudicial question. They argued that in the which we will define later on. And the probable cause,
previously instituted civil action there is an issue of is that there is a crime that has been committed and
whether or not the officers are duly installed or duly that the crime committed is committed by the
elected. In that sense, the issue to be determined in respondent, who is probably guilty thereof and should
the previously filed civil action is actually be held for trial in a judicial criminal proceeding.
determinative of the guilt or innocence of the
accused in the criminal action. Therefore, there is a NATURE
prejudicial question. (Omictin v. CA) Executive function
Function that belongs to the public prosecutor
The previously instituted civil action is also for the Substantive rights
determination of the validity of the election of the A personal right and can be waived expressly or
new officers and the subsequently filed criminal impliedly
action is again for Estafa and one of the essential
elements is abuse of confidence. Now, the PURPOSES OF PRELIMINARY
determination whether there was abused of INVESTIGATION
confidence in the subsequently file criminal action
also rests into whether or not an officer was validly A. To inquire concerning the commission of a
elected in the corporation. Therefore, the crime and the connection of the accused with
determination in the previously instituted civil action
it, in order that he may be informed of the
as to the validity of the election of the new set of
nature and character of the crime charged
officers has a bearing or is determinative of whether
or not the element of Estafa in the subsequently file against him, and if there is probable cause, for
criminal action is present or not. Therefore, there is believing him guilty that the state shall take the
a prejudicial question. (People v. Arambulo) necessary steps to bring him to trial;
38

B. To preserve the evidence and keep the in an arbitrary and despotic manner by reason of
witnesses within the control of the state and to passion or hostility.
determine the amount of bail if the offense is
bailable PRELIMINARY INVESTIGATION v.
CUSTODIAL INVESTIGATIONS
Probable cause pertains to the facts and PRELIMINARY CUSTODIAL
circumstances sufficient to support a well-founded INVESTIGATION INVESTIGATION
belief that a crime has been committed and the accused an inquiry or proceeding the questioning initiated
is probably guilty thereof to determine whether by law enforcement
there is sufficient ground officers after a person
RIGHT OF PRELIMINARY INVESTIGATION to engender a well- has been taken into
founded belief that a custody or otherwise
1) Not a constitutional right crime has been deprived of his freedom
2) Waivable committed and the of action in any
respondent is probably significant way.
PUBLIC PROSECUTOR guilty thereof and should
be held for trial.
1) The preliminary investigation by a public happens before an a custodial investigation
prosecutor is not the stage to decide whether there investigating prosecutor happens before a law
is evidence beyond reasonable doubt of the guilt of enforcement officer
the person charged. the respondent is made a person invited or who
2) The main function of the government prosecutor to answer the criminal is already a suspect in a
during the preliminary investigation is merely to charge to defend himself criminal investigation is
determine the existence of probable cause and to against a criminal charge asked as to the
file the corresponding information if he finds it to that he is probably guilty circumstances of a
of particular impossible
be so.
crime.
3) if there is no probable cause, not enough evidence
to support the probability of guilt, then it is the
What are the offenses requiring preliminary
duty of an investigating prosecutor to dismiss the
investigation?
case to protect an innocent from a hasty, expensive
Under paragraph 2 of Section 1, except when the
and useless criminal trial.
accused was lawfully arrested without a warrant, a
preliminary investigation is required to be conducted
KINDS OF DETERMINATION OF
before the filing of the complaint or information for an
PROBABLE CAUSE
offense when the penalty prescribed by law is at least 4
Preliminary Preliminary years, 2 months and 1 day without regard to fine.
Investigation Examination/Inquiry
The determination of determination of
a public prosecutor needs to look at the prescribed
probable cause by the probable cause by the
Executive Department judicial department penalty, which is the penalty indicated by the law for
The probable cause is for the probable cause there the crime and not the imposable penalty which refers
the purpose of is for the determination to that penalty to be imposed on the accused after
determining whether of probable cause in considering the evidence and attendant modifying
there is a crime relation to whether a circumstances in the case.
committed and that the warrant of arrest will be
respondent is the one issued by the judge. Preliminary investigation not required
guilty of that crime. 1) When the accused was lawfully arrested without a
Executive function Judicial function warrant and he does not ask for a preliminary
investigation, this is called an inquest case.
JURISDICTION OF COURTS 2) When the penalty prescribed for the offense charged
GR: Courts are precluded from reviewing findings of does not exceed 4 years 2 months (and 1 day?), the
the prosecutors – findings of probable cause. The cases falling under this category has been called as
rationale behind the rule rests on the principle of direct filing cases.
separation of powers since the determination of
probable cause, in relation to preliminary investigation What is the effect of a lack of preliminary
is an executive function. investigation?
Consistently, the Supreme Court has held that the
XPN: When there is a clear grave abuse of discretion absence of a preliminary investigation
amounting to lack or excess of jurisdiction. The abuse 1) does not impair the validity of the criminal
must be shown to be so patent, so gross as to amount information or render it defective
to an invasion of a positive duty or a virtual refusal to 2) It does not also affect the jurisdiction of the
perform a duty enjoined by law, or to act at all in trial court
contemplation of law as where the power is exercised
39

3) But if there is no preliminary investigation and caution and prudence to believe, or entertain an honest
the accused before entering his plea invites the or strong suspicion, that a thing is so.
attention of the court to its absence (when the
lack of preliminary investigation is The term does not mean “actual and positive cause”
appropriately and timely raised by the accused nor does it import absolute certainty. It is merely based
meaning), the court, instead of dismissing the on opinion and reasonable belief. Thus, a finding of
case, should remand the case to the prosecutor probable cause does not require an inquiry into
so that a preliminary investigation may be whether there is sufficient evidence to procure a
conducted. conviction. It is enough that it is believed that an act or
4) Not a ground to motion to quash omission complained of constitutes the offense
5) Waivable - if the accused fails to raise the lack charged. Precisely, there is a trial for the reception of
of preliminary investigation during his or her evidence of the prosecution in support of the charge.
arraignment and he already took his plea
Probable cause, for purposes of filing a criminal
Instances when probable cause needs to be information, has been defined as such facts as are
established sufficient to engender a well-founded belief that a
crime has been committed and that respondent is
1) Under Sections 1 and 3 of the Rule 112 in probably guilty thereof, and should be held for trial.
Preliminary Investigation by the
investigating officer to determine whether Probable cause is meant such set of facts and
there is sufficient ground to engender a well- circumstances which would lead a reasonably discreet
founded belief that a crime has been and prudent man to believe that the offense charged in
committed, and the respondent is probably the Information, or any offense included therein, has
guilty thereof and should be held for trial. A been committed by the person sought to be arrested.
preliminary investigation is required before the
filing of a complaint or information for an In determining probable cause, the average person
offense when the penalty prescribed by law is weighs facts and circumstances without resorting to
at least 4 years, 2 months and 1 day without the calibrations of the rules of evidence of which
regard to fine. he/she has no technical knowledge. He/She relies on
2) Under Sections 5 and 8 of Rule 112, by the common sense.
judge to determine whether a warrant of
A finding of probable cause needs only to rest on
arrest or a commitment order, if the accused
evidence showing that, more likely than not, a crime
has already been arrested, shall be issued and
has been committed and that it was committed by the
that there is a necessity of placing the
accused.
respondent under the immediate custody in
order not to frustrate the ends of justice. Probable cause demands more than bare suspicion, but
3) Under Section 5 (b) of Rule 113, by a peace it requires less than evidence that would justify a
officer or a private person making a conviction.
warrantless arrest when an offense has just
been committed and he has probable cause to What is determined during preliminary investigation is
believe, based on personal knowledge of facts only probable cause, not proof beyond reasonable
or circumstances that the person to be arrested doubt. As implied by the words themselves, probable
has committed it. cause is concerned with probability, not absolute or
4) Under Section 4 of Rule 126, on search and moral certainty.
seizure by a judge to determine whether a
search warrant shall be issued and only upon A finding of probable cause does not require an inquiry
probable cause in connection with one specific into whether there is sufficient evidence to secure a
offense to be determined personally by the conviction. It is enough that the act or omission
judge after examination under oath or complained of constitutes the offense charged. The
affirmation of the complainant and the term does not mean “actual and positive cause” nor
witnesses he may produce and particularly does it import absolute certainty. It is merely based on
describing the place to be searched and the opinion and reasonable belief.
things to be seized, which may be anywhere in
the Philippines. Section 4.1.3
Revised Manual for Prosecutors 2017 Edition Section 4.1.3. No Fixed Formula for Determining
Probable Cause. – The determination of probable
Section 4.1.2. Quantum of Evidence Required is Probable cause does not call for the application of rules and
Cause. — Probable cause has been defined as a standards of proof that a judgment of conviction
reasonable ground of presumption that a matter is or requires after trial on the merits. As implied by the
may be well-founded; such a state of facts in the mind words themselves, “probable cause” is concerned with
of the prosecutor as would lead a person of ordinary probability, not absolute or even moral certainty. The
40

prosecution need not present at this stage proof

beyond reasonable doubt. The standards of judgment the requisites for double jeopardy to attach is that
are those of a reasonably prudent man, not the exacting there is:
calibrations of a judge after a full-blown trial. No law
1. A first jeopardy must have attached prior to the
or rule states that probable cause requires a specific
second one;
kind of evidence. No formula or fixed rule for its
determination exists. Probable cause is determined in 2. The first jeopardy must have been validly
the light of conditions obtaining in a given situation. terminated;
Section 4.1.4. Sound Discretion of the Prosecutor. – 3. The second jeopardy must be for the same offense
The institution of a criminal action depends upon the as the first jeopardy
sound discretion of the prosecutor. He may or may not
file the complaint or information, follow or not follow Legal jeopardy attaches only upon:
that presented by the offended party, according to
1. Valid indictment;
whether the evidence, in his opinion, is sufficient or
not to establish the guilt of the accused beyond 2. Before a competent court;
reasonable doubt. The reason for placing the criminal
prosecution under the direction and control of the 3. After arraignment;
[prosecutor] is to prevent malicious or unfounded
prosecution by private persons. x x x Prosecuting 4. A valid plea having been entered; and
officers under the power vested in them by law, not
5. The case was dismissed or otherwise terminated
only have the authority but also the duty of prosecuting
without the express consent of the accused.
persons who, according to the evidence received from
the complainant, are shown to be guilty of a crime Section 4.3. Nature of a Preliminary Investigation. –
committed within the jurisdiction of their office. They 4.3.1. It is an Executive Function. – A preliminary
have equally the legal duty not to prosecute when after investigation is not a quasi-judicial proceeding. [The
an investigation they become convinced that the investigating prosecutor] does not exercise
evidence adduced is not sufficient to establish a prima adjudication nor rule–making functions. It is a function
facie case. of the Office of the National Prosecution Service
which is under the control and supervision of the
Section 4.2. Purposes of a Preliminary Investigation. – Department of Justice within the executive branch of
the government.
a. To secure the innocent against hasty, malicious and
oppressive prosecution and to protect him/her from 4.3.2. It is Preliminary in Nature. – The investigation is
an open and public accusation of a crime and from the advisedly called preliminary, as it is yet to be followed
trouble, expense and anxiety of a public trial; and by the trial proper. The investigating officer acts upon
probable cause and reasonable belief, not proof
b. To protect the State from having to conduct useless
beyond reasonable doubt
and expensive trials.
4.3.3. It is a Summary and Inquisitorial Proceeding. –
The primary objective of a Preliminary Investigation is
While it is a summary proceeding, it is done in a
to free the respondent from the inconvenience,
scrupulous manner to prevent material damage to
expense, ignominy and stress of defending
a potential accused’s constitutional right to liberty
himself/herself in the course of a formal trial, until the
and the guarantees of freedom and fair play. Merely
reasonable probability of his/her guilt in a more or less
inquisitorial; not trial on the merits; It must be stressed
summary proceeding by a competent office designated
that the right of an accused to a preliminary
by law for that purpose has been determined.
investigation is a personal right and can be waived
Secondarily, such summary proceeding also protects expressly or by implication; if failed to invoke
the State from the burden of the unnecessary expense before entering a plea; it is not part of the due
and effort in prosecuting alleged offenses, and in process guaranteed by the Constitution; and does
holding trials arising from false, frivolous or groundless not place the respondent in jeopardy
charges.
Section 4.2.1. Double Jeopardy in Preliminary 4.3.4. It is not a Judicial Inquiry or Proceeding. –
Investigation. – The dismissal of a case during Preliminary investigation is merely inquisitorial, and
preliminary investigation does not constitute double is often the only means of discovering the persons who
jeopardy, preliminary investigation not being part of may be reasonably charged with a crime and to enable
the trial. the fiscal to prepare his/ her complaint or information.
It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime
has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While
41

the fiscal makes that determination, he/she cannot be Their authority to conduct preliminary
said to be acting as a quasi- court, for it is the courts, investigations shall include all crimes cognizable by
ultimately, that pass judgment on the accused, not the the proper court in their respective territorial
fiscal. jurisdictions. (2a)
Section 4.4. Right to Preliminary Investigation. – 4.4.1. The Supreme Court has withdrawn the authority of
It is not a Constitutional Right. – The right to a judges of the municipal trial court or the first level
preliminary investigation is not a constitutional right, courts to conduct preliminary investigation
meaning, it is not expressly provided for in the
Constitution. It is not therefore guaranteed by the Prosecutors Courts
Constitution unlike for instance, the right to counsel or probable cause in probable cause to the
to remain silent which is expressly embodied under conducting preliminary issuance of a warrant of
Section 12 of Article III of the Constitution. investigations arrest, search and seizure
4.4.2. It is Merely a Statutory Grant. – The right to a Other officers authorized by law
preliminary investigation is statutory, not 1) COMELEC
constitutional.” In short, the rights of a respondent in SEC. 43. Section 265 of Batas Pambansa Blg. 881 is
a preliminary investigation are merely statutory rights, hereby amended to read as follow:
not constitutional due process rights.
"SEC. 265. Prosecution. - The Commission shall,
4.4.3. It is a Personal Right. – The right to a through its duly authorized legal officers, have the
preliminary investigation is also a personal right, power, concurrent with the other prosecuting arms
which can be waived expressly or impliedly. of the government, to conduct preliminary
Preliminary investigation is not part of the due process investigation of all election offenses punishable
under this Code, and prosecute the same"
guaranteed by the Constitution. It is an inquiry to
determine whether there is sufficient ground to
2) Office of Ombudsman
engender a well-founded belief that a crime has been
The Office of the Ombudsman has authority to
committed and the respondent is probably guilty
investigate and prosecute on its own or on complaint
thereof. Instead, the right to a preliminary investigation
by any person any act or omission of any public officer
is personal. It is afforded to the accused by statute, and
or employee, office or agency, when such act or
can be waived, either expressly or by implication. The
omission appears to be illegal, unjust, improper or
waiver extends to any irregularity in the preliminary
inefficient. It has primary jurisdiction over cases
investigation, where one was conducted.
cognizable by the Sandiganbayan, and in the exercise
In inquest cases, the accused impliedly waives his/her of this primary jurisdiction, it may take over at any
right to a preliminary investigation, if he/she fails to stage from any investigatory agency of the government
invoke the same within five (5) days from the time the investigation of such cases.
he/she learns of the filing of the Information. This
five-day period for the filing of a motion for The investigators of the Office of the Ombudsman
preliminary investigation after an Information has been have concurrent jurisdiction with public prosecutors
filed in court against an accused who was arrested to conduct a preliminary investigation in all cases
without a warrant, has been characterized as involving public officers, whether falling under the
mandatory. jurisdiction of the Sandiganbayan or the regular court.
Prosecutors under the DOJ or the prosecutors under
4.4.4. It is a Substantive Right. – The right to the Office of the Ombudsman can take cognizance of
preliminary investigation is substantive, not merely cases involving public officers. But in cases where the
formal or technical. To deny it to petitioner would exclusive jurisdiction is with the Sandiganbayan, the
deprive him/her of the full measure of his/her right to Ombudsman may assert its primary jurisdiction at
due process. any stage of the investigation
Section 2. Officers authorized to conduct preliminary 3) Presidential Commission on Good

investigations. — Governance
The Presidential Commission on Good Governance
The following may conduct preliminary with the assistance of the Office of the Solicitor
investigations: General and other government agencies, empowered
to investigate, file, and prosecute cases investigated by
(a) Provincial or City Prosecutors and their it are also authorized to conduct preliminary
assistants; investigation.
(b) Judges of the Municipal Trial Courts and
Municipal Circuit Trial Courts;
4) Special counsels designated by the Secretary of
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law. Justice or the Department of Justice
42

Special counsels designated by the Secretary of Justice without the right to examine or cross-examine. They
or the Department of Justice may create a panel of may, however, submit to the investigating officer
investigating prosecutors for special kinds of cases. questions which may be asked to the party or witness
concerned.
Section 3. Procedure. — The preliminary
investigation shall be conducted in the following The hearing shall be held within ten (10) days from
manner: submission of the counter-affidavits and other
documents or from the expiration of the period for
(a) The complaint shall state the address of the their submission. It shall be terminated within five
respondent and shall be accompanied by the (5) days.
affidavits of the complainant and his witnesses, as
well as other supporting documents to establish (f) Within ten (10) days after the investigation, the
probable cause. They shall be in such number of investigating officer shall determine whether or not
copies as there are respondents, plus two (2) copies there is sufficient ground to hold the respondent for
for the official file. The affidavits shall be subscribed trial. (3a)
and sworn to before any prosecutor or government
official authorized to administer oath, or, in their 1) submission of the complaint with affidavits
absence or unavailability, before a notary public, and supporting documents, and then
each of who must certify that he personally 2) the submission of counter-affidavits with
examined the affiants and that he is satisfied that supporting affidavits and documents
they voluntarily executed and understood their 3) If it is necessary, the investigating officer may
affidavits. set a hearing to conduct clarificatory
questioning from both parties. But during this
(b) Within ten (10) days after the filing of the clarificatory hearing, there is no right to
complaint, the investigating officer shall either examine or cross-examine. The only right given
dismiss it if he finds no ground to continue with the
here is to submit to the investigating officers
investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its questions which either party would like to ask
supporting affidavits and documents. to the witnesses or to the opposing party.
4) After the clarificatory questioning (which
The respondent shall have the right to examine the under the rules should be terminated within
evidence submitted by the complainant which he five days), then the end of the preliminary
may not have been furnished and to copy them at investigation will be the last day of the
his expense. If the evidence is voluminous, the clarificatory hearing. And the investigating
complainant may be required to specify those which prosecutor is given ten (10) days to decide
he intends to present against the respondent, and whether there is probable cause or none.
these shall be made available for examination or However, if there is no clarificatory hearing,
copying by the respondent at his expense. the investigation will end at the submission of
the counter-affidavit.
Objects as evidence need not be furnished a party
5) reply to the Counter-Affidavit. If the other
but shall be made available for examination, copying,
or photographing at the expense of the requesting party wants to reply to the Reply-Affidavit,
party. they can file a Rejoinder Affidavit.
(c) Within ten (10) days from receipt of the Affidavits, counter-affidavits and supporting
subpoena with the complaint and supporting documents
affidavits and documents, the respondent shall 1) should be made on personal knowledge
submit his counter-affidavit and that of his witnesses 2) should show affirmatively that the affiants are
and other supporting documents relied upon for his competent to testify on the matters stated
defense. The counter-affidavits shall be subscribed therein.
and sworn to and certified as provided in paragraph 3) sworn to before any prosecutor or government
(a) of this section, with copies thereof furnished by official authorized to administer oath, or only
him to the complainant. The respondent shall not be
in their absence and unavailability, a notary
allowed to file a motion to dismiss in lieu of a
counter-affidavit. public who must certify that he personally
examined the affiants and that he is satisfied
(d) If the respondent cannot be subpoenaed, or if that they voluntarily executed and understood
subpoenaed, does not submit counter-affidavits their affidavits.
within the ten (10) day period, the investigating  Affidavits, notarized by a notary public
officer shall resolve the complaint based on the without any showing that a prosecutor
evidence presented by the complainant. or qualified government official was
unavailable, are not in accord with the
(e) The investigating officer may set a hearing if there rules. Thus, it may not be considered or
are facts and issues to be clarified from a party or a accepted by the investigating
witness. The parties can be present at the hearing but prosecutor.
43

Upon filing of the complaint during the preliminary investigation, all the other
1. Dismiss the complaint — The investigating respondents were given a subpoena and a copy of
prosecutor is empowered or authorized to actually the complaint and the supporting documents.
dismiss the complaint within ten (10) days after its However, Mr. Labay was not furnished the
filing if he finds no ground to continue with the subpoena, the complaint, the affidavits, and the
investigation; or supporting documents because two of the addresses
2. Issue a subpoena — He or she may issue a subpoena to which the subpoena, etc. were sent to were his
previous office address and his previous residence.
to a respondent attaching to it the copy of the
Therefore, despite several attempts, the subpoena
complaint and its supporting affidavits and documents could really not served upon Mr. Labay. Because of
and directing the respondent to file a counter-affidavit this failure of service, Mr. Labay became unaware
that there was already a preliminary investigation
Sec 3c against him. His daughter, Atty. Labay, only found
A verified motion to dismiss may be filed on the out that there was an investigation and that there was
following grounds: already a resolution because Atty. Labay saw it on
1) The absence of probable cause; TV. she requested for copies of the complaint and
2) The fact that the complaint or one similar the supporting documents. However, the request
thereto or identical therewith has previously was denied. Instead she was given a copy of the
been filed with the office and has been fully resolution approving the filing of the information
adjudicated upon the merits after due against, among others, respondent Labay for
violation of Anti-Graft and Corrupt Practices Act
preliminary investigation proceeding; and
before the Sandiganbayan. A first Omnibus motion
3) The extinction of the respondent's criminal
for re-investigation was then filed and a copy of the
liability by reason of death, pardon, amnesty, complaint and the supporting documents were
repeal of the law under which the prosecution requested. This was denied by the Ombudsman,
is sought, or any other legal causes such as for thus, a motion for reconsideration was filed which
example the lack of jurisdiction of the was denied again.
investigating prosecutor.
Subsequently, the information was filed before the
Rights of the complainants and respondents under Sec. Sandiganbayan and it was only days after the filing
3, Rule 112 of the information that Mr. Labay was given a copy
1. Respondents — has the right to receive a copy of the complaint along with the copy of the affidavits
of the complaint and its supporting affidavits and documents, but that happened only after the
and documents. information was filed before the Sandiganbayan.
 Respondents and co-respondents have
However, the peculiar circumstance here is Mr.
no right to demand that they be Labay did not want to evade the service of the
furnished with copies of the counter- subpoena. He didn’t know but upon knowing or
affidavits of their co-respondents. gaining knowledge, he was the one who volunteered
to have a copy of the complaint and the supporting
what the respondents right to examine refers only to documents in order for him to properly answer. Mr.
the evidence submitted by the complainant and not Labay really didn’t have any attempt to delay the
to the counter-affidavits of his co-respondents prosecution of this offense he had genuinely wanted
(Jinggoy Estrada vs. OMB) to participate, but that the Ombudsman did not give
him that opportunity by not giving him timely the
2. 2. Complainant — has the right to receive a copy of the complaint and the supporting
copy of the counter-affidavits and the documents.
affidavits and supporting documents from the
respondent. Actually, the Ombudsman could have properly
resolve the preliminary investigation even without
the participation of Mr. Labay because that is under
Sec 3d
the rules. However, because it was Mr. Labay
Remember, preliminary investigation can actually
himself who volunteered, who approached the
proceed ex-parte or without the participation of the Ombudsman to participate to have a copy of the
respondents. It is under Section 3(d), Rule 112. The complaint and supporting documents in order for
rule allows the investigating prosecutor to resolve the him to properly answer, properly present his
complaint based on the evidence before him if the defense, but despite that effort the Ombudsman still
respondent could not be made to participate in the denied Mr. Labay’s request to be furnished timely a
preliminary investigation despite the efforts to reach copy of the complaint and the supporting
him. However, it must be shown that the investigating documents.
prosecutor, at the very least, had the genuine effort to
reach the respondent or to furnish him with the The Supreme Court said that while the Ombudsman
complaint and the affidavits and the documents was correct in resolving the complaint based on the
supporting such complaint evidence presented in accordance with the rules even
if no counter-affidavit was filed by Mr. Labay, there’s
44

no dispute that the Ombudsman was unable to serve

copies of the complaint or the supporting There is also no merit in the Ombudsman’s position,
documents prior to or even during the preliminary that it was incumbent on petitioner Labay to justify
investigation of the case meaning. his whereabouts during the time that the
Ombudsman was attempting service of the
The Supreme Court noted however, that the subpoena on him, since no law or regulation requires
situation effectively changed when petitioner made an accused in a preliminary investigation to submit
himself available to the Ombudsman when he himself to the Ombudsman, or at the very least, to
requested access to the case records. The update the latter of his latest address (Labay v.
Ombudsman had a clear opportunity to furnish Sandiganbayan)
petitioner with copies of the complaint affidavit and
its supporting documents. Instead, it merely decided GR: the preliminary investigation can go on ex parte
to furnish petitioner with a copy of its resolution. without the participation of the respondent if he was
already served a subpoena and he fails or refuses to
The Supreme Court added that even assuming that submit counter affidavit within the 10 days provided
the Ombudsman was merely complying with Atty. for under the rules, that will not constrain the
Labay's requests for information when it responded
investigating prosecutor to proceed with the
with case titles and docket numbers of the cases
pending against petitioner Labay, it should have preliminary investigation in finding whether or not
exercised its duty to inform the petitioner of the there is probably a cause. Even just based on the
charges filed against him by furnishing him copies of complaint, and the supporting affidavits and
the complaint affidavit and its supporting documents provided for by the complainant
documents, or at least, it should have directed and
allowed petitioner to access the records, at its office XPN: when circumstances like in the case of Labay v.
pursuant to the right of the respondent to examine Sandiganbayan happens, where it is actually the
the evidence submitted by the complainant. But this respondent who is willing and volunteering to
was not done by the Ombudsman. participate in the preliminary investigation, but still, the
investigating prosecutor denies the rights of the
by the mere fact that the petitioner, Atty. Labay was responded under the rules, then it would be considered
not yet furnished a copy of the complaint affidavit
as grave abuse of discretion.
and the supporting documents at the time that the
Ombudsman furnished him a copy of the resolution
finding probable cause against him, it is clear that he Sec 3e – CLARIFICATORY HEARING
could not effectively and sufficiently address the the investigating officer has the right to set a hearing
allegation against him. Atty. Labay should not be for a clarificatory question. This is discretionary for the
blamed for being unable to raise any substantive investigating officer and not mandatory at all.
defense in either the omnibus motions he filed with Therefore, since it is discretionary, the absence of a
the Ombudsman, since he had not even seen any of clarificatory hearing is not a denial of due process.
the allegations filed against him by the Ombudsman.
More importantly, he could not have been expected Under DOJ Circular No. 01-2000, all cases of
to seek appropriate evidence to support his defense preliminary investigation being conducted by
when he wasn't even given any access to the investigating prosecutors shall be completely
documents submitted by the Sandiganbayan in disposed of within a period of 60 days from the
support of its complaint.
date of assignment. This period shall include hearings
The Supreme Court further added that in fact, the conducted in preparation and issuance of resolutions
violation of petitioner Labay's constitutional right to and corresponding information if any.
due process is made even more evident when the
Ombudsman unceremoniously denied his request to However, the noncompliance with the period does not
be furnished copies of the complaint affidavit and its affect the validity of the resolution or the information.
supporting documents in the first Omnibus motion It will be the investigating prosecutor who will just be
and reiterated in his second Omnibus motion in subject to disciplinary action if there is no justifiable
both orders denying the two Omnibus motions. The explanation of why there is a delay in the resolution of
Ombudsman seemingly ignored petitioners request the preliminary investigation.
and effectively denied petitioner of his right to
secure copies of the complaint affidavit. Sec 3f
Officially the termination of the preliminary
Unfortunately, the Sandiganbayan committed grave
investigation is upon the filing of the information in
abuse of discretion when it failed to grant petition
Labay's extremely urgent Omnibus motion, despite the proper court or when there is a dismissal of the
the glaring violation committed by the Ombudsman. complaint, the approval of the proper approving
The Sandiganbayan should have recognized these authority. So for preliminary investigation conducted
patent violations and ordered the remand of the case by the:
to the Ombudsman for the conduct of a proper  Provincial Prosecutor's Office, it will
preliminary investigation with respect to petitioner be the provincial prosecutor who will
Labay's participation in the crimes charged. approve.
45

 City Prosecutor's Office, it will be the disapproved by the Provincial or City Prosecutor or the
City Prosecutor who will approve. Chief Prosecutor or the Ombudsman or his deputy on
 Regional State Prosecutor's office, it the ground that probable cause exists, the latter may
will be the Chief State Prosecutor or 1) by himself file the information against the
the Prosecutor General respondent or
 In cases of offenses cognizable by the 2) direct another assistant prosecutor or state
Sandiganbayan in the exercise of its prosecutor to do so without conducting
original jurisdiction, it will be the another preliminary investigation. (it will no
Ombudsman or his Deputy. So, longer be the investigating prosecutor who will
deputies will be from Luzon, Visayas, handle the case and file the information in
Mindanao, and from the military court. It will be a totally different prosecutor.)
Certification of preliminary investigation Motion for reconsideration

If he finds in the resolution that there is probable Under the rules of the Department of Justice, the
cause, the information shall contain a certification by
the investigating officer under oath in which he shall 1) aggrieved party under the preliminary
certify to the following: investigation may actually file a motion for
a) that he or as shown by the record, an reconsideration within 15 days from the receipt
authorized officer, has personally examined the of the assailed resolution.
complainant and his witnesses; 2) If the motion is denied, the aggrieved party
b) that there is reasonable ground to believe that may appeal within 15 days from the denial of
a crime has been committed; the motion for reconsideration and the appeal
c) that the accused is probably guilty thereof; is taken to the Office of the Secretary of
d) that the accused was informed of the complaint Justice.
and of the evidence submitted against him; and
e) that he was given an opportunity to submit It will be termed a petition for review before the
controverting evidence Secretary of Justice who has the power to reverse,
modify or affirm the prosecutor’s determination in
Effect of absence preliminary investigation.
Notwithstanding the absence in the information of a
certification as to the holding of a preliminary Appeals
investigation, the information is nonetheless Secretary of Justice
considered valid for the reason that such certification The appeal to the Secretary of justice, however, does
is not an essential part of the information itself, and its not hold or prevent the filing of a corresponding
absence cannot vitiate the information. information in court based on the finding of probable
cause in the appealed resolution unless the secretary of
What is not allowed is the filing of the information justice directs otherwise, but the one appealing and the
without a preliminary investigation, having been prosecutor shall see to it that pending resolution of the
previously conducted in those instances where appeal, the proceedings in court are held in abeyance.
preliminary investigation is necessary.
The party filing a petition for review is allowed to file
within five days from the resolution, the investigating a motion for the suspension of the arraignment and
prosecutor shall forward the record of the case to the upon motion by the proper party the arraignment shall
proper approving authority. The approving authority be suspended, among others, if a petitioned for review
shall act on the resolution within 10 days from the of the resolution of the prosecutor is pending.
receipt thereof and shall immediately inform the parties
of such action. The authority of the investigating prosecutor and even
the Secretary of the Department of Justice as
Forwarding of the records for action previously discussed, is a discretion that is executive in
no complaint or information may be filed or dismissed nature but if there is grave abuse of discretion, then the
by the investigating prosecutor without the prior court can step in and nullify or reverse the act which
written authority or approval of the corresponding was done in grave abuse of discretion.
approving authority. Thus, the resolution of the
investigating prosecutor may be reversed or affirmed Office of the President
by the Provincial or City Prosecutor or the Prosecutor The resolution of the Secretary of Justice in appealed
General or the Ombudsman as the case may be. cases, may either be
1) brought to the Court of Appeals via petition
Rule when recommendation for dismissal is for certiorari under Rule 65 of the Rules of
disapproved Court based on grave abuse of discretion or
Where the investigating prosecutor recommends the 2) it may be brought on appeal to the Office of
dismissal of the complaint, but his recommendation is the President ONLY in the following cases
46

a) the offense involved is punishable by COMELEC’s review powers. The COMELEC’S

reclusion perpetua to death; ruling then would be considered immediately final and
 For offenses which involve executory. As the COMELEC is acting as a quasi-
imprisonment, which is lower than judicial body, any appeals to such ruling is raised to the
reclusion perpetua to death, the only Court of Appeals via Rule 43.
mode of raising it up would be
judicial, going to the court of appeals There is a concept of the court’s retention of
via rule 65 of the rules of court, petition jurisdiction upon the filing of the information.
for certiorari, and based on grave abuse Whatever the remedy is after the determination of
of discretion. probable cause or the lack thereof, if it is the
b) new and material issues are raised which determination of probable cause, there is no stopping
were not previously presented before the the public prosecutor from filing the information even
Department of Justice and were not hence if the aggrieved party raises it to the Secretary of Justice
ruled upon; (SOJ).
c) the prescription of the offense is not due to
lapse within six months from notice of the The determination of the presence or absence of
questioned resolution; and probable cause for the issuance of warrants of arrest
d) The appeal or petition for review is filed against the accused or for the withdrawal of the
within 30 days from notice information or for the dismissal of the case are also
under the court’s discretion.
If there is already a resolution of the Office of the
President, then it can be raised to the Supreme Court Where it has already been filed with the court and there
within 15 days from notice of the final order of the has been a review in the SOJ, before there is a
Office of the President, and the procedure that you will resolution by the SOJ, a motion for suspension must
take will be under Rule 43 of the Rules of Court. The be filed in the trial court. This is done to avoid
resolution in the Court of Appeals, can be raised to the simultaneous proceedings because resolutions of the
Supreme Court via rule 45 to the Supreme Court. trial court are as valid as that of the SOJ. Thus, being
separate entities, simultaneous proceedings might lead
From the Office of the President (can be raised by) to conflicting resolutions. When the information is
Rule 43 because the Office of the President is filed with the trial court, it shall be its duty and
considered quasi-judicial body when it resolves appeal discretion that will prevail.
similar to this. From the Court of Appeals, under Rule
43 whatever decision judgment resolution order there Section 4. Resolution of investigating prosecutor
that is final can be raised by Rule 45 (Petition for and its review. — If the investigating prosecutor
Review on Certiorari) which should be based on pure finds cause to hold the respondent for trial, he shall
questions of law to the Supreme Court. prepare the resolution and information. He shall
certify under oath in the information that he, or as
Review of the ruling of the ombudsman in shown by the record, an authorized officer, has
personally examined the complainant and his
criminal cases
witnesses; that there is reasonable ground to believe
In criminal cases, the ruling of the Ombudsman shall
that a crime has been committed and that the
be elevated to the Supreme Court by way of Rule 65 accused is probably guilty thereof; that the accused
(Petition for Certiorari). The Supreme Court's power was informed of the complaint and of the evidence
of a review over resolutions and orders of the Office submitted against him; and that he was given an
of the Ombudsman is restricted only to determining opportunity to submit controverting evidence.
whether there is a grave abuse of discretion committed Otherwise, he shall recommend the dismissal of the
by the Ombudsman in the resolution of criminal cases. complaint.
The court is not authorized to correct every error or
mistake of the Office of the Ombudsman other than Within five (5) days from his resolution, he shall
grave abuse of discretion. The remedy therefore is not forward the record of the case to the provincial or
a petition under Rule 45 but a Petition for Certiorari city prosecutor or chief state prosecutor, or to the
under Rule 65. Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the
Appeal from the Resolution of the Prosecutor in resolution within ten (10) days from their receipt
Election Offense thereof and shall immediately inform the parties of
In cases where the prosecutor or city fiscal exercises such action.
the delegated power to conduct a preliminary
investigation of election offenses, the issue of probable No complaint or information may be filed or
cause is resolved by the investigating officer after dismissed by an investigating prosecutor without the
submitting their recommendation. From such prior written authority or approval of the provincial
resolution, appeal to the COMELEC lies. Such second or city prosecutor or chief state prosecutor or the
look at the probable cause is an exercise of the Ombudsman or his deputy.
47

commands law enforcement officers to arrest a person

Where the investigating prosecutor recommends the and bring him before a magistrate.
dismissal of the complaint but his recommendation
is disapproved by the provincial or city prosecutor Action of the judge upon filing of the complaint or
or chief state prosecutor or the Ombudsman or his information
deputy on the ground that a probable cause exists, In the procedure for the issuance of a warrant, the
the latter may, by himself, file the information judge of the RTC shall within 10 days from the filing
against the respondent, or direct any other assistant
of the complaint or information do either of the
prosecutor or state prosecutor to do so without
conducting another preliminary investigation. following:
1) The judge of the RTC shall personally evaluate
If upon petition by a proper party under such rules the resolution of the prosecutor and the
as the Department of Justice may prescribe or motu supporting evidence regarding the existence of
proprio, the Secretary of Justice reverses or modifies probable cause, and on the basis thereof, issue
the resolution of the provincial or city prosecutor or a warrant of arrest.
chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding Warrant of arrest Search warrant
information without conducting another preliminary the judge will personally the judge will require a
investigation, or to dismiss or move for dismissal of look at the documents, personal examination of
the complaint or information with notice to the information, and the complainant or the
parties. The same rule shall apply in preliminary supporting evidence, etc. one that applied for a
investigations conducted by the officers of the search warrant, and the
Office of the Ombudsman. (4a) witnesses which he may
provide.
Section 5. When warrant of arrest may issue.* —
(a) By the Regional Trial Court. — Within ten (10) 2) The trial court judge of the RTC, if he has
days from the filing of the complaint or information, doubts as to the existence of probable cause,
the judge shall personally evaluate the resolution of shall have the power to order the prosecutor to
the prosecutor and its supporting evidence. He may present additional evidence.
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of  Additional evidence - The judge must
arrest, or a commitment order when the complaint satisfy himself that based on the
or information was filed pursuant to section 6 of this evidence submitted there is sufficient
Rule. In case of doubt on the existence of probable proof that a crime has been committed
cause, the judge may order the prosecutor to present and that the person to be arrested is
additional evidence within five (5) days from notice probably guilty thereof. At this stage of
and the issue must be resolved by the court within the criminal proceeding, the judge is
thirty (30) days from the filing of the complaint or not yet tasked to review in detail the
information. evidence submitted during the
(b) By the Municipal Trial Court. — When required preliminary investigation. It is
pursuant to the second paragraph of section 1 of this sufficient that he personally evaluates
Rule, the preliminary investigation of cases falling
such evidence in determining probable
under the original jurisdiction of the Metropolitan
Trial Court, Municipal Trial Court in Cities, cause.
Municipal Trial Court or Municipal Circuit Trial  Dismiss - The judge is also empowered
Court SHALL be conducted by the prosecutor. The to immediately dismiss the case if the
procedure for the issuance of a warrant of arrest by evidence on record clearly fails to
the judge shall be governed by paragraph (a) of this establish probable cause. But it is only
section. when the judge finds that the evidence
(c) When warrant of arrest not necessary. — A on hand is absolutely failing to support
warrant of arrest shall not issue if the accused is a finding of probable cause, that he can
already under detention pursuant to a warrant issued dismiss the case.
by the municipal trial court in accordance with  Warrant of arrest with
paragraph (b) of this section, or if the complaint or recommendation for bail - When there
information was filed pursuant to section 6 of this
is a determination by the judge that
Rule or is for an offense penalized by fine only. The
court shall then proceed in the exercise of its original there is probable cause, a judge should
jurisdiction. (As amended by A.M. No. 05-8-26- SC.) issue a warrant of arrest with a
recommendation for bail — in those
Warrant of arrest cases of course that bail is a matter of
Is a written order of the court, which is made on behalf right.
of the State and is based upon a complaint issued
pursuant to statute and/or court rule; and which Rule 114, Section 17. Bail, where filed. (c) Any
person in custody who is not yet charged in court
48

may apply for bail with any court in the province, provided an inquest has been conducted in
city, or municipality where he is held accordance with existing rules.
SUMMARY In the absence or unavailability of an inquest

(1) He may immediately dismiss the case, if the prosecutor, the complaint may be filed by the
evidence on the record clearly fails to offended party or a peace office directly with the
establish probable cause; or proper court on the basis of the affidavit of the
(2) If he finds probable cause, he shall issue a offended party or arresting officer or person.
warrant of arrest or a commitment order if
the complaint or information was filed Before the complaint or information is filed, the
pursuant to Section 6 of Rule 112 (valid person arrested may ask for a preliminary
warrantless arrest); or investigation in accordance with this Rule, but he
(3) If he doubts the existence of probable cause, must sign a waiver of the provisions of Article 125
he may order the prosecutor to present of the Revised Penal Code, as amended, in the
additional evidence within five days from presence of his counsel. Notwithstanding the
notice waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its
In relation to the discussion that it is the duty of the inception.
judge of the court to personally evaluate the records of
the case, the judge should not rely solely on the After the filing of the complaint or information in
court without a preliminary investigation, the
certification of the fiscal.
accused may, within five (5) days from the time he
learns of its filing, ask for a preliminary investigation
When is Warrant of Arrest unnecessary? with the same right to adduce evidence in his defense
1) If the complaint is filed pursuant to the as provided in this Rule.
provision of section 6 rule 112 due to the
absence or unavailability of an inquest INQUEST PROCEEDINGS
prosecutor. the issuance of a warrant is Application
unnecessary because the accused is already in Applies only in cases where the accused was lawfully
detention. What the court will issue is a arrested without warrant of arrest under Section 5 Rule
commitment order. 113 of the Revised Rules of Criminal Procedure.
2) If the complaint or information was filed after Where the records do not show that the accused was
inquest proceeding conducted by the inquest lawfully arrested, this rule does not apply.
prosecutor. Same as #1, here there is already
detention of the accused, and therefore the Under DOJ Circular No. 61, dated September 21 1993,
court will just issue a commitment order the initial duty of the inquest officer is to determine if
instead of a warrant of arrest the arrest of the detained person was made in
3) In criminal cases falling under the Revised accordance with the provisions of paragraphs A and B
Rules on Summary Procedure except when the of Section 5 of rule 113.
accused failed to appear whenever required.
This is because for cases falling under the DOJ Circular No. 61, Section 9. Where arrest not
Revised Rules on Summary Procedure, there is properly effected. — Should the Inquest Officer find
usually no imprisonment. The penalty is mostly that the arrest was not made in accordance with the
fine. Rules, he shall:
XPN: However, if the person accused of a a. recommend the release of the person arrested
crime failed to appear whenever required by or detained;
the court, then the court may issue a warrant of b. note down the disposition of the referral
arrest to compel him to come to court document;
4) In cases not requiring preliminary investigation c. prepare a brief memorandum indicating the
reasons for the action taken; and
nor falling under the Revised Rule on Summary
d. forward the same, together with the record of
Procedure and the judge is satisfied that there
the case, to the City or Provincial Prosecutor for
is no necessity for placing the accused under appropriate action.
custody
5) When the evidence on record fails clearly to Where the recommendation for the release of the
establish probable cause; and detained person is approved by the City or
6) When the offense is penalized by fine only Provincial Prosecutor but the evidence on hand
warrant the conduct of a regular preliminary
Section 6, Rule 112. When accused lawfully arrested investigation, the order of release shall be served on
without warrant. — When a person is lawfully the officer having custody of said detainee and shall
arrested without a warrant involving an offense direct the said officer to serve upon the detainee the
which requires a preliminary investigation, the subpoena or notice of preliminary investigation,
complaint or information may be filed by a together with the copies of the charge sheet or
prosecutor without need of such investigation complaint, affidavits or sworn statements of the
49

complainant and his witnesses and other supporting Section 3.2.2. Incomplete Documents. – When the
evidence. documents presented are incomplete to establish
probable cause, the inquest prosecutor shall direct
2017 Revised Manual for Prosecutors, Section 3.1.1. the law enforcement authorities to submit, in
Concept — An inquest proceeding is an informal the proper form, the required evidence within
and summary investigation conducted by a public the period prescribed under the provisions of
prosecutor in criminal cases involving persons Article 125 of the Revised Penal Code, as
arrested and detained without the benefit of a amended. Failure to submit the required evidence
warrant of arrest issued by the court for the purpose within the prescribed period shall constrain the
of determining whether or not these persons inquest prosecutor to order the release of the
should remain under custody and detained person/s.
correspondingly be charged in court
Section 3.2.3. Instances Where the Presence of the
2017 Revised Manual for Prosecutors, Section 3.1.2. Detained Person is Dispensed With. – The presence of
Coverage — The conduct of inquest proceedings the detained person shall be ensured during the
covers the following: proceedings except in the following cases:
a. All offenses covered under the Revised Penal a. If he is confined in a hospital; or
Code and special laws, rules and regulations which b. If he is detained in a place under maximum
requires a preliminary investigation; security.
b. Where respondent is a minor (below eighteen
[18] years old), the inquest proceedings shall cover The inquest prosecutor shall reflect the absence of
only offenses punishable by imprisonment of not the detained person for any of the foregoing reasons
less than six (6) years and one (1) day, provided in the record of the case.
that no inquest investigation shall be conducted
unless the child–respondent shall have first Section 3.2.4. Charges and Counter-Charges. – All
undergone the requisite proceedings before the charges and counter-charges arising from the same
Local Social Welfare Development Officer incident shall, as far as practicable, be jointly
pursuant to the Rules on Inquest with Respect to investigated and the conduct of the inquest
Children in Conflict With the Law (CICL). proceedings be terminated, and be referred for
further preliminary investigation.
2017 Revised Manual for Prosecutors, Section 3.1.3.
Section 3.2.6. Where the Arrest of the Detained Person
Designation of an Inquest Prosecutor. – The
was Properly Effected. – Should the inquest prosecutor
Prosecutor General or the Provincial/City
find that the arrest was properly effected, the
Prosecutor shall designate the prosecutors assigned
detained person shall be asked if he/she desires to
to inquest duties and their schedule of assignments.
avail himself/herself of a preliminary investigation
and, if he/she does, the consequences thereof must
2017 Revised Manual for Prosecutors, Section 3.1.4. be explained to him/her adequately.
Venue of Inquest Cases. – Unless otherwise directed
by the Prosecutor General or the Provincial/City
Prosecutor, those assigned to inquest duties shall The detained person must be assisted by a lawyer of
discharge their functions during the hours of their his/her own choice. If he/she has none, the inquest
designated assignments at the office of the inquest prosecutor shall provide him/her the services of a
prosecutor in order to expedite and facilitate the public attorney.
disposition of inquest cases, unless otherwise
directed by the Head of Office. The detained person, assisted by his/her lawyer,
shall then be made to execute a waiver of the
2017 Revised Manual for Prosecutors, Section 3.2. provisions of Article 125 of the Revised Penal Code,
Procedure. – All complaints for inquest shall be as amended.
received and docketed by the prosecution office
concerned. The preliminary investigation may be conducted by
the inquest prosecutor himself/herself or by any
Section 3.2.1. Commencement. – The inquest other prosecutor to whom the case may be assigned
proceedings shall be considered commenced by the Prosecutor General or the Provincial/City
upon receipt by the inquest prosecutor of the Prosecutor, which investigation shall be terminated
following documents: within fifteen (15) days from its commencement.
a. Affidavit of arrest duly subscribed and sworn to
before him/her by the arresting officer; 2017 Revised Manual for Prosecutors, Section 3.3
b. Investigation report; Inquest Proper. – Where the detained person does
c. Sworn statements of the complainant/s and not opt for a preliminary investigation or otherwise
witness/es; and refuses to execute the required waiver, the inquest
d. Other supporting pieces of evidence gathered prosecutor shall proceed with the conduct of the
by the law enforcement authorities in the course of inquest proceeding by examining the sworn
their investigation. statements/ affidavits of the complainant and the
witnesses and other supporting evidence submitted.
The conduct of an inquest proceeding should
50

never be initiated in the absence of an affidavit the next preceding article shall be imposed upon the
of arrest. public officer or employee who shall detain any
person for some legal ground and shall fail to deliver
If necessary, the inquest prosecutor shall require the such person to the proper judicial authorities within
presence of the complaining witnesses and subject the period of; twelve (12) hours, for crimes or
this witness to an informal and summary offenses punishable by light penalties, or their
investigation or examination for the purposes of equivalent; eighteen (18) hours, for crimes or
determining the existence of probable cause. offenses punishable by correctional penalties, or
their equivalent and thirty-six (36) hours, for
Section 3.3.1. Action to be Taken When there is a finding crimes, or offenses punishable by afflictive or
of Probable Cause. – Probable cause has been defined capital penalties, or their equivalent.
as the existence of such facts and circumstances as
would excite the belief, in a reasonable mind, acting In every case, the person detained shall be informed
on the facts within the knowledge of the prosecutor, of the cause of his detention and shall be allowed
that the person charged was guilty of the crime for upon his request, to communicate and confer at any
which he/she was prosecuted. Probable cause is a time with his attorney or counsel.
reasonable ground of presumption that a matter is,
or may be, well-founded, such a state of facts in the In case of
mind of the prosecutor as would lead a person of 1) violation of the Human Security Act within 72
ordinary caution and prudence to believe, or hours, which is now extended to 14 calendar
entertain an honest or strong suspicion, that a thing days under the Anti-Terror Law.
is so. 2) violation of the anti-smuggling laws, and for
violations of the dangerous drugs act, if the
If the inquest prosecutor finds that probable cause
exists, he/she shall forthwith prepare the resolution result of the inquest leads to dismissal, then it
with the corresponding Complaint/Information is subject to automatic review to the
with the recommendation that the same be filed in Secretary of Justice.
court. The Complaint/Information shall indicate the 3) For Sandiganbayan cases, should any
offense/s committed and the amount of bail complaint cognizable by the Sandiganbayan be
recommended, if applicable. However, in inquest referred to the Office of the Prosecutor
cases for crimes covered by the Rules on Summary General or City/Provincial Prosecutor's Office
Procedure and Republic Act No. 603610 where no for the conduct of inquest proceedings, the
bail is required, the inquest prosecutor shall latter shall refrain from accepting the same
recommend the release of the arrested person and and shall advise the law enforcer to file the
prepare the Information for filing with the court. complaint before the Office of the
Ombudsman or the Office of the Special
Thereafter, the record of the case, together with the
Prosecutor through any of the branch clerk of
resolution and the Complaint/Information, shall be
forwarded to the Prosecutor General or the court in the locality concerned
Provincial/City Prosecutor for approval and
subsequent filing before the proper Court. RULES:
GR: (PRELIMINARY INVESTIGATION)
Section 3.3.2. Action to be Taken When There is an preliminary investigation is required to be conducted
Absence of Probable Cause. – If the inquest prosecutor before the filing of a compliant or information for
finds no probable cause to indict the an offense where the penalty prescribed by law is at
arrested/detained person, he/she shall: least four (4) years, two (2) months and one (1) day
without regard to the fine
a. Recommend the release of the arrested or
detained person; XPN: (INQUEST PROCEEDINGS) When a
b. Prepare a resolution of dismissal indicating
person is lawfully arrested without a warrant
therein the reason/s for the action taken; and
c. Forward the record of the case to the involving an offense which requires a preliminary
Prosecutor General or the Provincial/City investigation, the complaint or information may be
Prosecutor for their appropriate action. filed by a prosecutor without need of such
investigation provided an inquest has been
GR: the inquest proceedings must be terminated conducted in accordance with existing rules.
within the period prescribed, which will be counted
from the time the arrest under the provisions of Article XPN of XPN: (DIRECT FILING TO THE
125 of the Revised Penal Code COURT) In the absence or unavailability of an
XPN: When there is a waiver for the purpose of inquest prosecutor, the complaint may be filed by
preliminary investigation the offended party or a peace officer directly with
the proper court on the basis of the affidavit of the
Revised Penal Code offended party or arresting officer or person.
Art. 125. Delay in the delivery of detained persons to the  Before the complaint or information is
proper judicial authorities. — The penalties provided in filed, the person arrested may ask for
51

a preliminary investigation in
accordance with this Rule, but he must (b) If filed with the Municipal Trial Court. — If
sign a waiver of the provision of the complaint or information is filed with the
Article 125 of the Revised Penal Code, Municipal Trial Court or Municipal Circuit Trial
as amended, in the presence of his Court for an offense covered by this section, the
counsel. procedure in section 3(a) of this rule shall be
- Notwithstanding the signing of the observed. If within ten (10) days after the filing of
the complaint of information, the judge finds no
waiver, if the person requested
probable cause after personally evaluating the
preliminary investigation, he can evidence, or after personally examining in
already apply for bail, if bail is a matter writing and under oath the complainant and his
of right. witnesses in the form of searching questions
- an offshoot of the preliminary and answers, he shall dismiss the same. He may,
investigation. It must be terminated however, require the submission of additional
within 15 days from its inception evidence, within ten (10) days from notice, to
 After the filing of the complaint or determine further the existence of probable
information in court without a cause. If the judge still finds no probable cause
preliminary investigation, the accused despite the additional evidence, he shall, within ten
may, within five (5) days from the (10) days from its submission or expiration of said
time he learns of its filing, ask for a period, dismiss the case. When he finds probable
cause, he shall issue a warrant of arrest, or a
preliminary investigation with the
commitment order if the accused had already
same right to adduce evidence in his been arrested, and hold him for trial. However, if
defense as provided in this Rule. the judge is satisfied that there is no necessity for
placing the accused under custody, he may issue
Section 7. Records. — summons instead of a warrant of arrest. (9a)
(a) Records supporting the information or
complaint. — An information or complaint filed in Rule 112, Section 3. Procedure. — The preliminary
court shall be supported by the affidavits and investigation shall be conducted in the following
counter-affidavits of the parties and their witnesses, manner:
together with the other supporting evidence and the (a) If filed with the prosecutor. — The complaint
resolution on the case. shall state the address of the respondent and shall
be accompanied by the affidavits of the
(b) Record of preliminary investigation. — The complainant and his witnesses, as well as other
record of the preliminary investigation conducted by supporting documents to establish probable
a prosecutor OR OTHER OFFICERS AS MAY BE cause. They shall be in such number of copies as
AUTHORIZED BY LAW shall not form part of there are respondents, plus two (2) copies for the
the record of the case. However, the court, on its official file. The affidavits shall be subscribed and
own initiative or on motion of any party, may order sworn to before any prosecutor or government
the production of the record or any of its part when official authorized to administer oath, or, in their
necessary in the resolution of the case or any absence or unavailability, before a notary public,
incident therein, or when it is to be introduced as an each of who must certify that he personally
evidence in the case by the requesting party. (8a) (As examined the affiants and that he is satisfied that
amended by A.M. No. 05-8-26-SC). they voluntarily executed and understood their
affidavits.
1) Records supporting the information or
complaint - will be taken judicial notice of by Application
the court and there needs no other proof as to Includes cases which do not require the conduct of a
its existence preliminary investigation. These are offenses
2) Records of the preliminary investigation - 1) with the penalty prescribed by law as
not included in the document supporting the imprisonment for not more than 4 years and 2
complaint or information, must be duly months, without regard to fine; or
presented in court 2) those offenses covered by a summary
procedure which we will know by process of
Section 8. Cases not requiring a preliminary investigation elimination.
nor covered by the Rule on Summary Procedure. —
(a) If filed with the prosecutor. — If the complaint Rules
is filed directly with the prosecutor involving an Under Section 3(A), the prosecutor doesn’t need to
offense punishable by an imprisonment of less than
follow b,c,d,e,and f. The determination of the probable
four (4) years, two (2) months and one (1) day,
the procedure outlined in section 3(a) of this Rule cause under cases which do not require preliminary
shall be observed. The prosecutor shall act on the investigation; may rely solely on the complaints and the
complaint based on the affidavits and other affidavits and supporting evidences provided for by the
supporting documents submitted by the complainant. But this is not to say that public
complainant within ten (10) days from its filing. prosecutor is constrained to just rely on the
52

complainant’s point of view because the public 1) File a complaint or information directly in
prosecutor has actually a leeway or discretion to court
conduct a full-blown preliminary investigation. After XPN: Metro Manila and other chartered city
they received the complaint, affidavit of witnesses and the filing shall be of an information (not a
other supporting documents, then they can resolve it complaint)
within 10 days, without asking for a counteraffidavit XPN of XPN: Unless criminal case it cannot
from the respondent be prosecuted de officio (ACASA)
2) The complaint or information shall be
Under Sec 8(B) (If filed with the Municipal Trial accompanied by the affidavits of the
Court), these are the cases which do not need complainants and its witnesses in such number
preliminary investigations and those not covered by the of copies as there are accused plus two copies
rule on summary procedure. It is directly filed in the for the court’s files. This requirement has to be
Municipal Trial Court, Municipal Circuit Trial Court, complied with within five (5) days from the
Metropolitan Trial Court, or a First Level Court. filing of the case otherwise, the same may be
Because it is already filed in a court of law, it is already dismissed.
judicial in nature; the proceedings that will be 3) • Under Sec. 13 of the Revised Rules on
undertaken by the judge will be considered a Summary Procedure, should the court find no
preliminary investigation. cause or ground to hold the accused for trial, it
shall order the dismissal of the case. If there is
Preliminary examination a ground to hold the accused for trial, the court
RTC MTC shall set the case for arraignment and trial.
personally evaluating the complaint, affidavits, the  Further, if the accused is in custody for
supporting documents within 10 days after the filing the crime charged, he shall be
of the complaint or information, no duty to call on immediately arraigned if he enters a
the complainant and the witnesses to determine plea of guilty, he shall forthwith be
probable cause
sentenced.
order the prosecutor to require the submission
present additional of additional evidence  when during the arraignment, the
evidence within 5 days within 10 days from accused pleads not guilty then it will
from notice notice to determine now proceed with the Preliminary
further the existence of Conference
probable cause. 4) In Preliminary conference there will be
no duty to personally after personally stipulation of facts, he may also apply for plea
examine in writing or evaluating the evidence, bargaining and/or to take up other matters or
under oath the the MTC judge can issues to clarify to insure a speedy disposition
complainant and his already issue the warrant of the case. (Sec. 14 of Revised Rule on
witnesses in the form of of arrest when by the Summary Procedure)
searching questions. evidence alone, he finds 5) during the Trial, the affidavits of the witnesses
probable cause.
and even the complainant will be considered as
the direct testimonies to be offered, subject to
What are those offenses covered by the Revised
the cross examination, redirect examination
Rules on Summary Procedure?
and re-cross examination. (Sec. 15 of Revised
1) Violations of traffic laws, rules and regulations;
Rule on Summary Procedure)
2) Violations of the rental law;
6) Court is mandated not to order the arrest of the
3) Violations of municipal or city ordinances;
accused except when the ground is failure to
4) Violations of B.P. Blg. 22 (Bouncing Checks
appear when required by the Court. So, if he is
Law);
arrested because he was not able to attend trial,
5) 5) All other criminal cases where the penalty
he may still be released if he applies for bail or
prescribed by law for the offense charged is
he is granted recognizance. (Sec. 16 of
imprisonment not exceeding six months,
Revised Rule on Summary Procedure)
or a fine not exceeding one thousand pesos
(P1,000.00), or both irrespective of other
ARREST
imposable penalties, accessory or otherwise, or
of the civil liability arising therefrom: Provided,
RULE 113
however, That in offenses involving damage
Section 1. Definition of arrest. – Arrest is the taking of
to property through criminal negligence, this
a person in custody in order that he may be bound
Rule shall govern where the imposable fine to answer for the commission of an offense.
does not exceed ten thousand pesos
(P10,000.00). Section 2. Arrest; how made. – An arrest is made by
an actual restraint of a person to be arrested, or by
Procedure for summary procedure his submission to the custody of the person making
the arrest. No violence or unnecessary force shall be
53

used in making an arrest. The person arrested shall

not be subject to a greater restraint than is Unnecessary violence
necessary for his detention. GR: no violence or unnecessary force shall be used in
making an arrest and the person arrested shall not be
Arrest - is the taking of a person into custody in order subject to a greater restraint and is necessary for his
that he may be bound to answer for the commission of detention.
an offense. Arrest is the taking under real or assumed XPN: in some instances when the person to be
authority, custody of another for the purpose of arrested, after going through the motions or the
holding or detaining him to answer to a criminal charge procedures of the arrest, do not evade the arrest or is
willing to be taken into custody there is actually no
Sec. 2, Art. III of the 1987 Constitution. “xxx no necessity to handcuff the person being arrested.
search warrant or warrant of arrest shall issue except XPN of XPN: if there is a violent exchange or if the
upon probable cause to be determined personally by person being arrested is resisting or is trying to evade,
the judge after examination under oath or or that the police officer or the arresting officer has
affirmation of the complainant, and the witnesses he reasonable belief that the person being arrested may be
may produce and particularly describing the place to
harmful or is capable of harming the arresting officer,
be searched and the person or things to be seized.“
then based on the best discretion of the arresting
Jurisprudence holds that an arrest without probable officer, forms of restraints such as the handcuffs may
cause is an unreasonable seizure of a person, and be applied accordingly.
violates the privacy of persons, which ought not to be
intruded by the State. Hence, the existence of probable Probable cause
cause is a vital element to the validity of a warrant of Prelimina Issuance Warrantle Search
ry of warrant ss arrest warrant
arrest.
investigat of arrest
ion
Procedures to be taken by RTC or MTC before he such facts a as such
may issue a warrant of arrest pertains to and reasonable facts and
Preliminary examination the facts circumstan ground of circumstan
RTC MTC and ces which suspicion ces which
Sec 5a, Rule 112 Sec 8b, Rule 112 circumstan would lead supported would lead
personally evaluating the complaint, affidavits, the ces a by a
supporting documents within 10 days after the filing sufficient reasonably circumstan reasonably
of the complaint or information, no duty to call on to support discreet ces discreet
the complainant and the witnesses to determine a well- and sufficiently and
probable cause founded prudent strong in prudent
no duty to personally after personally belief that man to themselves man to
examine in writing or evaluating the evidence a crime has believe to warrant believe
under oath the in the form of searching been that an a cautious that an
complainant and his questions., the MTC committed offense man’s offense
witnesses in the form of judge can already issue and the has been belief that has been
searching questions. the warrant of arrest accused is committed the person committed
when by the evidence probably by the accused is and that
Only the resolution of alone, he finds probable guilty person guilty of the object
the prosecutor and the cause. thereof sought to the offense sought in
supporting evidence be with which the
order the prosecutor to require the submission arrested. he is connection
present additional of additional evidence charged with the
evidence within 5 days within 10 days from offense are
from notice notice to determine in the
further the existence of place
probable cause. sought to
be
Meaning of Probable Cause for the issuance of a searched.
Warrant of Arrest
For the purpose of the warrant of arrest, probable voluntary surrender or voluntary submission into
cause is defined as such facts and circumstances which the custody of the person or persons tasked to effect
would lead a reasonably discreet and prudent man to the arrest may be considered a mitigating
believe that an offense has been committed by the circumstance if you refer back to your Revised Penal
Code.
person sought to be arrested.
Conferring jurisdiction
Probable cause
Arrest, when valid, vests jurisdiction to the court over
Warrant of arrest Guilt of the accused
the person of the accused. To emphasize, it is the arrest
Less stringent Stringent
54

of the person and not the issuance of a warrant of XPN: it is recalled or there is a voluntary submission
arrest. of the person to be arrested to the jurisdiction of the
court.
It is the valid arrest of the person or the voluntary
submission or appearance in court, which vests Duties of the arresting officer (People v. Mahinay)
jurisdiction over the person of the accused. It is not the At the time a person is arrested it shall be the duty of
issuance of the warrant of arrest. the arresting officer
1) The person arrested, detained, invited or under
Description of the person custodial investigation must be informed in a
 Section 2 of Article III, 1987 language known to and understood by him of
Constitution the reason for the arrest, and he must be shown
 The issuance of a general warrant or a the warrant of arrest if any, every other
warrant which do not particularly warnings information or communication must
describe or particularly name the be in a language known to and understood by
person to be seized or even the said person.
issuance of a warrant to several persons
who cannot be identified is clearly a Take note, however, that under the last
violation of the Constitution. sentence of Section 7 of Rule 113, the officer
 if a person subject of a warrant of arrest need not have the warrant in his possession at
is only identified by his nickname or by the time of the arrest, but after the arrest if the
an appellation by which he is known, person arrested so requires the warrant shall be
he must be described in the warrant of shown to him as soon as practicable.
arrest with particularity, such that the
person who will effect the arrest using Under the first guideline, if the arresting officer
the warrant of arrest may be able to has in his custody the warrant of arrest then,
zero in or identify the person of the when the arresting officer explains to the
accused or the person to be arrested. person being arrested the reason for his
arrest, he can already show the warrant of
Section 3. Duty of arresting officer. — It shall be the arrest. But if, for example, it is not in his
duty of the officer executing the warrant to arrest the custody as of the moment of the arrest then,
accused and to deliver him to the nearest police Section 7 of Rule 113 will apply.
station or jail without unnecessary delay. 2) He must be warned that he has the right to
remain silent, and that any statement he makes
Section 4. Execution of warrant. — The head of the may be used as evidence against him.
office to whom the warrant of arrest was delivered 3) He must be informed that he has the right to
for execution shall cause the warrant to be executed be assisted at all times and have the presence of
within ten (10) days from its receipt. Within ten an independent and competent lawyer
(10) days after the expiration of the period, the preferably of his own choice.
officer to whom it was assigned for execution shall
4) He must be informed that if he has no lawyer
make a report to the judge who issued the warrant.
In case of his failure to execute the warrant, he shall or cannot afford the services of a lawyer, one
state the reasons therefor. will be provided for him, and that a lawyer may
also be engaged by any person in his behalf, or
Lifetime of the warrant of arrest may be appointed by the court upon petition
It shall remain valid and effective so long as it has not of the person arrested, or one acting in his
been recalled or the person named therein has not been behalf.
arrested or has not submitted himself to the 5) That whether or not the person arrested has a
jurisdiction of the court. The validity of the warrant lawyer, he must be informed that no custodial
continues even if the officer assigned to execute has investigation in any form shall be conducted
made a negative return to the issuing court. except in the presence of his counsel, or after a
valid waiver has been made. Take note that the
Section 4, on the execution of warrant, the timeframes waiver of the right to be represented by counsel
there are only to ensure that there is dispatch in the must be in writing and must be signed in the
execution of the warrant of arrest. If there is failure to presence of counsel.
execute the warrant of arrest then based on Section 4, 6) The person arrested must be informed that at
the person or the enforcement officer assigned to any time he has a right to communicate or
execute the warrant shall only make a report to the confer by the most expedient means -
judge who made or issued the warrant. In case there is telephone, radio, letter or messenger - with his
failure to execute the warrant, he is duty bound to state lawyer, either retained or appointed, any
the reasons therefore. member of his immediate family, or any
medical doctor, priest or minister chosen by
GR: warrant of arrest does not expire him or by anyone from his immediate family or
55

by his counsel, or be visited by, or confer with attempting to commit an offense; [what is otherwise
duly accredited national or international non- known as in flagrante delicto arrest]
government organization. It shall be the (b) When an offense has just been committed, and
responsibility of the officer to ensure that this he has probable cause to believe based on personal
is accomplished. knowledge of facts or circumstances that the person
7) He must be informed that he has the right to to be arrested has committed it; [otherwise known
waive any of the said rights provided it is made as “hot pursuit arrest”] and
(c) When the person to be arrested is a prisoner who
voluntarily, knowingly, and intelligently and
has escaped from a penal establishment or place
ensure that he understood the same. where he is serving final judgment or is temporarily
8) In addition, if the person arrested waives his confined while his case is pending, or has escaped
right to a lawyer, he must be informed that it while being transferred from one confinement to
must be done in writing and in the presence of another. In cases falling under paragraph (a) and (b)
counsel, otherwise, he must be warned that the above, the person arrested without a warrant shall be
waiver is void even if he insists on his waiver forthwith delivered to the nearest police station or
and chooses to speak. jail and shall be proceeded against in accordance
9) The person arrested must be informed that he with Section 7 of Rule 112. (5a)
may indicate in any manner at any time or stage
of the process that he does not wish to be Warrantless arrests
questioned with warning, that once he makes Warrantless arrest is a seizure of person without a
such indication that indication, the police may warrant but based on probable cause that he has
not interrogate him if the same had not yet committed a felony or has escaped from confinement.
commenced, or the interrogation must cease if
it has already begun. “to hold that no criminal can, in any case, be arrested
10) The person arrested must be informed that his and searched for the evidence and tokens of his
initial waiver of his right to remain silent, the crime without a warrant, would be to leave society,
right to counsel or any of his rights does not to a large extent, at the mercy of the shrewdest, the
most expert, and the most depraved of criminals,
bar him from invoking it at any time during the
facilitating their escape in many instances. (Umil v.
process, regardless of whether he may have
Ramos)
answered some questions or volunteered some
statements. IN FLAGRANTE DELICTO
11) He must also be informed that any statement A peace officer or private person may, without a
or evidence, as the case may be, obtained in warrant, arrest a person when
violation of any of the foregoing, whether 1) in his presence, the person to be arrested has
inculpatory or exculpatory, in whole or in part, committed, is actually committing, or is
shall be inadmissible in evidence. attempting to commit an offense
2) The arresting officer therefore must have
It is not enough for the person arresting to merely personal knowledge of such fact or personal
repeat to the person under investigation the provisions knowledge of facts and circumstances
of Section 12, Art. 3 of the 1987 Constitution. The convincingly indicative or constitutive of
former must also explain the effects of such provision probable cause.
in practical terms.
Elements
Art. 125. Delay in the delivery of detained persons 1) The person to be arrested must execute an
to the proper judicial authorities. – The penalties overt act indicating that he has just committed,
provided in the next preceding article shall be
is actually committing, or is attempting to
imposed upon the public officer or employee who
shall detain any person for some legal ground and commit a crime; and
shall fail to deliver such person to the proper judicial 2) Such overt act is done in the presence or
authorities within the period of: twelve (12) hours, within the view of the arresting officer or
for crimes or offenses punishable by light penalties, private person
or their equivalent; eighteen (18) hours, for crimes  It must be stressed that the presence
or offenses punishable by correctional penalties, or not only requires that the arresting
their equivalent; and thirty-six (36) hours, for crimes person sees the offense, but also when
or offenses punishable by afflictive or capital he hears the disturbance created
penalties, or their equivalent. thereby and proceeds at once to the
scene.
Section 5. Arrest without warrant; when lawful. — A
peace officer or a private person may, without a An arrest made after an entrapment operation
warrant, arrest a person: does not require a warrant in as much as it is
(a) When, in his presence, the person to be arrested considered as a valid warrantless arrest. Considering
has committed, is actually committing, or is that an arrest was lawfully made, the search
56

incidental to such arrest was also valid (People v. accused. Flight per se is not synonymous with
Collado) guilt and must not always be attributed to one's
consciousness of guilt.
It should be stressed that the Supreme Court has
already ruled that a buy-bust operation is a form of Flight is not a reliable indicator of guilt without other
entrapment which has repeatedly been accepted to circumstances. An attempt to run away from an
be a valid means of arresting violators of the officer is susceptible to various explanation; it could
Dangerous Drugs Law. signify guilt or may signify innocence. There are
many innocent reasons for flight like fear or
The justification that underlies the legitimacy of the retribution for speaking to an officer, unwillingness
buy-bust operation is that the suspect is arrested in to appear as witness, and fear of being apprehended
flagrante delicto – that is the suspect has just even if he is innocent.
committed or is in the act of committing or is
attempting to commit the offense in the presence of Also, the act of walking along the street and holding
the arresting police officer or private person. something in one's hand, even if they appeared to be
dubious, coupled with his previous criminal charge
The arresting police officer or private person is for the same offense, are not by themselves
favored in such an instance with a presumption of sufficient to insight suspicion of criminal activity, or
regularity in the performance of official duties to create probable cause enough to justify a
(People v. Andaya) warrantless arrest.
When the accused was arrested while merely talking A previous criminal charge for the same offense are
to a police informant, and there was no overt act not by themselves sufficient to incite suspicion of
indicative of a felonious enterprise that could be criminal activity or to create probable cause enough
properly attributed to the said accused to arouse to justify a warrantless arrest. (People v. Villareal)
suspicion in the mind of the arresting officer that the
accused has just committed, was actually Running away per se is not a crime and suspicion
committing, or was attempting to commit a crime, that a crime is being committed is not sufficient to
the warrantless arrest was not valid. establish probable cause. In In Flagrante Delicto
cases, there should be a crime being committed and
As testified to by the arresting officer himself in the not a mere suspicion that a crime is being
same case, the accused and the informant were just committed.
talking to each other and there was no exchange of
money and drugs when he approached the car. He suspicion that someone is committing a crime is not
also admitted on cross-examination that he had no the same as having personal knowledge that a crime
personal knowledge on whether there was a is being committed.
prohibited drug and gun inside the vehicle of the
accused when he approached (People v. Edaño) The SC rejected the validity of an arrest made by an
officer on the basis of his observation that the
The police claims that they were alerted when they accused was standing around and showing improper
saw two unidentified men suddenly rush out of a and unpleasant movements. Such acts declared by
house and since they suspected that a crime had the Supreme Court cannot be considered as criminal
been committed, the natural thing for them to do acts. At the time, the officer was aboard a
was to give chase to the jeep that the two fleeing men motorcycle cruising at the speed of 30kph when he
boarded given that the officers were in a patrol car allegedly saw the accused while standing on the side
and a tricycle. of the street and handing over something to another
at distance of 10m. The Court finds it is implausible
Although running after the fleeing suspect was the even assuming that he had a perfect vision to have
more urgent task, the officer instead gave priority to been able to identify minuscule amounts of
the house even when they heard no cry for help from crystalline substances inside two plastic sachets
it. (Comerciante v. People)
Admittedly, the police officer did not notice The arrest was made because of a mere tip of an
anything amiss going on the house from the street informant and it became the reason for the
where they stood. Now, even if they peek through warrantless arrest and the corresponding search that
the partially open door of the house, they saw no happened thereafter.
activity that warranted them entering it.
The person arrested here was just descending from
Clearly, no crime was plainly exposed to the view a ship holding a bag and there was no outward
of the arresting officer that authorize the arrest indication that he was committing any crime.
of the accused without a warrant. (Antiquera v.
People) The rule will be for tips of informants is that there
should be probable cause to arrest a person before
The mere act of darting away when approached by a he can be validly arrested without warrant and
police officer should not be construed against the thereafter searched. There must be an overt act of
57

committing a crime to be the basis of probable cause cause to justify an in flagrante delicto arrest. The
in in flagrante delicto cases. (People v. Aminnudin) SC concluded that there can be no valid warrantless
arrest in in flagrante delicto under the facts and
The allegations upon which the probable cause was circumstances of the case. (People v. Laguio Jr)
based was that the person arrested was seen with his
eyes moving fast and looking at every person passing HOT PURSUIT ARREST
by. Again, there is no crime being committed by the A peace officer or private person may, without warrant,
person arrested. (Malacat v. CA) arrest a person when an offense has just been
committed, and he has probable cause to believe, based
There was a tip from a telephone call to the police on personal knowledge of facts or circumstances that
by an alleged informer that there was a suspicious the person to be arrested has committed it.
looking man where at a street corner at Tondo
shortly before noon. The police operatives Two conditions
dispatched to the place so three men one of whom 1) the person to be arrested must have just
turned out to be Mengote who was looking from
committed an offense; and
side to side clutching his abdomen- these were the
“overt acts”. 2) the arresting peace officer or private person has
probable cause to believe, based on
The Supreme Court ruled that there was nothing personal knowledge of facts or
clandestine about him being on the street at the busy circumstances that the person to be
hour in the blaze of the noon day and by no stretch arrested is the one who committed the
of imagination is looking from side to side and offense.
clutching his abdomen a criminal act. Thus, there
was no valid warrantless arrest. (People v. In flagrante Hot pursuit
Mengote) require that the arrestingdoes not require that the
officer or private person arresting officer or
A day before the arrest the officers were informed to personally witness the private person to
that there was a schedule delivery of shabu by commission of the personally witness the
their employer WWW which will be done early in the offence. commission of the
morning and that he could be found at a certain offence. In fact, the
apartment building in Malate, Manila. The police offense was not
operatives decided to look for WWW to shed light committed in his
for the illegal drug activities alleged by the employees presence, although said
and proceeded to the location of the apartment and offense as required by
placed the same under surveillance. When WWW their rules has just been
came out of the apartment towards a parked car, two committed.
other police officers approached him and introduced No relation There must be a large
themselves to him as police officers, asked his name immediacy measure of immediacy
and upon hearing that he’s WWW immediately between the time the
frisked him and asked him to open the back offense was committed
compartment of the car. When frisked, there was and the time of the
found inside the front right pocket of WWW an arrest.
unlicensed pistol and ammunitions.
Personal knowledge
At the same time, the other members of the This personal knowledge must amount to probable
operatives searched the car and found inside it the ff cause, which means actual belief or reasonable grounds
items: transparent plastic bags of shabu, Php 650,
of suspicion. The grounds of suspicion are reasonable
000 cash, electronic and mechanical scales and
when in the absence of actual belief of the arresting
another unlicensed pistol with magazine.
officers, the suspicion that a person arrested is
The Supreme Court said that the facts and probably guilty of committing the offense is based
circumstances surrounding the case did not manifest on actual facts
any suspicious behavior on the part of WWW that
would reasonably invite the attention of the police. The person making the arrest has personal knowledge
of the fact that the crime was committed, because at
He was merely walking from the apartment and was the time of the arrest, he has a reasonably worthy
about to enter a parked car when the police information in his possession coupled with his own
operatives arrested him, frisked, and searched his observation and fair inferences therefrom, that the
person and commanded him to open the person arrested has probably committed the offense.
compartment of the car. He was not committing any The arresting officer may even rely on information
visible offense then and the SC reiterated that
supplied by a witness or a victim of the crime.
reliable information alone absent any overt act
indicative of a felonious enterprise in the
presence and within the view of the arresting Two robbers divested the passenger of a Jeepney of
officers is not sufficient to constitute probable their belongings, including a jacket of one passenger.
The passengers immediately sought the help of a
58

police officer, which form a team to track down the The police officer requested petitioner to alight the
suspects. One of the passengers who went with the vehicle. When he alighted with his hands raised, a
responding police officers saw one of the robbers gun tucked in the left of his waist was revealed. The
casually walking in the same vicinity and wearing his gun was confiscated and his car was searched for
jacket. The warrant of arrest of the accused was weapons which turned out to contain firearms and
sustained by the court as well within the hot ammunitions of assorted caliber. Petitioner insisted
pursuit exception. that his arrest was illegal, arguing that the arresting
officer were not at the scene of the hit and run.
So long as there was a continuous hot pursuit of that
particular person who committed the crime, then it The SC held that although the policemen who
may be argued that it is still a valid warrantless arrest, apprehended petitioner were not at the scene of the
even if it is made days after. (People v. Acol) hit and run, such fact did not affect the propriety of
the apprehension. It was in fact the most prudent
The Valenzuela police station received a report of a action Manarang could have taken rather than
mauling incident, which resulted in the death of the collaring petitioner himself in as much as policemen
victim who received a massive skull fracture caused are better trained in performing an arrest of suspects
by a hard and heavy object. who, in this case is Robin Padilla. Petitioner could
have put up a degree of resistance which an
The court ruled that, based on their knowledge of untrained civilian could not contain without putting
the circumstances of the death of the victim, and himself in danger.
the report of an eyewitness in arresting the
accused, the officers had personal knowledge of In that case, there was a valid arrest in hot pursuit
facts leading them to believe that it was the accused because the witness to the hit and run informed the
who was one of the perpetrators of the crime. police officers of the plate number of the car which
(People v. Gerente) caused the hit and run, thus, the policemen called
went after the said vehicle. When the vehicle was
The petitioner alleged that he was arrested based cornered, Robin Padilla alighted. Therefore, there
merely on information relayed to the police officers were crucial facts and circumstances that would lead
about a shooting incident and that they had at the a prudent man to believe that the hit and run was
time of the arrest no personal knowledge of the committed by person driving the vehicle who is
facts. The court found that as soon as the police probably guilty of committing the crime. (Padilla v.
received a phone call about a shooting incident, a CA)
team was dispatched to investigate. The
investigation disclosed that a victim was wounded ARREST OF ESCAPED PRISONERS
and that the witnesses tagged the petitioner as the When the person to be arrested is a prisoner who has
one involved and that he had just left the scene of 1) escaped from a penal establishment or place
the crime. After tracking down the petitioner, he was where he is serving final judgment or is
invited to the police headquarters. But the petitioner temporarily confined while his case is pending,
who initially agreed, sped off prompting the or
authorities to give chase. 2) has escaped while being transferred from one
confinement to another
The court ruled that the petitioners act of trying to 3) An accused who files a fake bail bond is
get away, coupled with the incident report, which
considered not merely to have jumped bail but
they investigated is enough to raise a reasonable
suspicion on the part of the police authorities to the for all intents and purposes, to have escaped
existence of probable cause. (Abelita v. Doria) from detention, thus, such accused may be
rearrested without warrant.
Petitioner Robin Padilla figured in a hit and run
accident with a Mitsubishi Pajero. The incident was Revised Rule of Criminal Procedure
witnessed by Manarang, a member of a civic group. 1) An accused released on bail may be re-
Manarang rode this motorcycle and chased the arrested without a necessity of a warrant if
petitioner. It was able to make out the plate number, he attempts to depart from the Philippines
PMA 777. He called the Viper through the radio, without permission of the court where the case
which flashed the message to all units of PNP is pending.
Angeles City. PNP mobile patrols responded to the 2) For the purpose of surrendering the accused
call and at Abacan Bridge Manarang found mobile the bondsman may arrest him, or upon
three with SPO 2 Borja and SPO 2 Miranda. He written authority endorsed on a certified copy
informed them about the hit and run incident and he
of the undertaking, cause him to be arrested by
returned to where he came from until he saw the
vehicle that figured in the incident, and he followed a police officer or any other person of suitable
it. Soon the vehicle was within sight of SPO 2 Borja age and discretion. (Section 23 of rule 114)
and Miranda of Mobile No. 3. They rode their 3) If a person lawfully arrested escapes or is
mobile car and cut into the path of the vehicle rescued, any person may immediately pursue
forcing it to stop. or take him without a warrant at any time and
59

in any place within the Philippines (Section 13 offense, is pursued immediately after its
of Rule 113). commission, has escaped, flees, or forcibly resists
before the officer has opportunity to so inform him,
Custodial investigation or when the giving of such information will imperil
Under RA No. 7438, the so called invitation of a the arrest.
person in connection with an offense he is suspected
to have committed is a prohibited act for which the Section. 9. Method of arrest by private person. –
inviting officer may be held liable under sections 2(f) When making an arrest, a private person shall inform
and 4 of RA No. 7438. the person to be arrested of the intention to arrest
him and the cause of the arrest, unless the latter is
either engaged in the commission of an offense, is
The mere invitation is already covered by the pursued immediately after its commission, or has
prescription on warrantless arrest because it is intended escaped, flees, or forcibly resists before the person
for no other reason than to conduct a custodial making the arrest has opportunity to so inform him,
investigation. or when the giving of such information will imperil
the arrest
Custodial investigation shall already include the
practice of issuing an invitation to a person who is Peace officer Private person
investigated in connection with an offense he is when making the arrest, inform the person to be
suspected to have committed. the officer shall inform arrested of the intention
the person to be arrested to arrest him.
This means even those who voluntarily surrender of his authority.
before a police officer must be apprised of their Inform the person of the cause of the arrest
Miranda rights for the same pressures: whether you
were invited or you were arrested or you voluntarily XPN:
1) when he is pursued immediately after the
went there, the same pressures of custodial setting exist
commission of the crime;
in whatever scenario. 2) when he escapes, flees, or forcibly resists
before the officer or person making the
Section 6. Time of making arrest. – An arrest may be arrest has opportunity to so inform him; or
made on any day and at any time of the day or 3) when the giving of such information will
night. imperil the arrest
May summon assistance May not summon
Section 7. Method of arrest by officer by virtue of warrant. assistance
– When making an arrest by virtue of a warrant, the
officer shall inform the person to be arrested of Section 10. Officer may summon assistance. — An
the cause of the arrest and the fact that a warrant officer making a lawful arrest may orally summon as
has been issued for his arrest, except when he many persons as he deems necessary to assist him in
flees or forcibly resists before the officer has effecting the arrest. Every person so summoned by
opportunity to so inform him, or when the an officer shall assist him in effecting the arrest when
giving of such information will imperil the he can render such assistance without detriment to
arrest. The officer need not have the warrant in himself.
his possession at the time of the arrest but after
the arrest, if the person arrested so requires, the Application
warrant shall be shown to him as soon as practicable.
applicable whether there is a warrant of arrest or if it is
the valid warrantless arrest
GR: When making an arrest by virtue of a warrant,
the officer shall inform the person to be arrested of
In relation to Art 149
the
All persons who come to the aid of agents of authority
1) cause of the arrest and
and also all public functionaries are entitled to be
2) the fact that a warrant has been issued for his
considered as agents of authority. It being
arrest
understood nevertheless that in order that the person
who comes to the aid of agents of authority may be
XPN:
considered as agents of authority, it is essential
1) When the accused flees or forcibly resist before
condition that they lend assistance by virtue of an
the officer has opportunity to inform him
order or request of such agent of authority.
2) when the giving of such information will
Accordingly, these persons are given the protection of
imperil the arrest
Article 149 of the Revised Penal Code wherein if
attacked, the offender will be liable for indirect assault.
Sec. 8. Method of arrest by officer without warrant. –
When making an arrest without a warrant, the officer
shall inform the person to be arrested of his Section 11. Right of officer to break into building or
authority and the cause of the arrest, unless the enclosure. — An officer, in order to make an arrest
latter is either engaged in the commission of an either by virtue of a warrant, or without a warrant as
provided in Section 5, may break into any building
60

or enclosure where the person to be arrested is or is day or, in urgent cases, of the night shall suffer the
reasonably believed to be, if he is refused penalty of imprisonment of not less than four (4)
admittance thereto, after announcing his years nor more than six (6) years, and a fine of
authority and purpose. four thousand pesos (P4,000.00). xxx
Section 12. Right to break out from building or POSSIBLE REMEDIES AGAINST ILLEGAL
enclosure. — Whenever an officer has entered the ARREST
building or enclosure in accordance with the 1) He or any person in his behalf may file a
preceding section, he may break out therefrom verified petition for habeas corpus before the
when necessary to liberate himself. proper court if no complaint or information is
filed against him in court. (Sec 1, 2, 3 Rule 102)
An officer can break into a building or enclosure if: 2) He may apply for bail with any court in the
1) He has announced his authority to affect the province or city or municipality where he is
arrest held. (Section 17 of Rule 114)
2) He has announced his purpose in making the 3) He may, if a complaint against him is
arrest commenced before the proper officer for
3) He is refused admittance after the foregoing inquest investigation, ask for a regular
announcements preliminary investigation and raise the issue of
his illegal arrest. Ofcourse after signing the
Section 13. Arrest after escape or rescue. – If a person waiver (Section 7 of Rule 112)
lawfully arrested escaped or is rescued, any person 4) He may, if a complaint or information is filed
may immediately pursue or if they take him against him in court for an offense requiring a
without a warrant at any time in any place within
preliminary investigation, asked for a
the Philippines.
preliminary investigation within five (5) days
The situation here is, this is no longer in flagrante from the time he learns of the filing of the
delicto arrest or hot pursuit arrest or arrest of an complaint, or information (Section 7 of Rule
escapee already in jail. There's no need to apply for 112)
another warrant of arrest just to re-arrest that person 5) He may, before entering his plea, move to
validly arrested. quash the complaint or information on the
ground that the court has no jurisdiction over
his person
Section 14. Right of attorney or relative to visit person
arrested. — Any member of the Philippine Bar shall,
at the request of the person arrested or of another The person arrested has the right to question the
acting in his behalf, have the right to visit and confer illegality of his arrest, whether with the warrant or
privately with such person in the jail or any other without warrant. However, any objection involving
place of custody at any hour of the day or night. a warrant of arrest or the procedure by which the
Subject to reasonable regulations, a relative of the court acquires jurisdiction of the person of the
person arrested can also exercise the same right. accused, for example, in warrantless arrest; it must
be made before he enters his plea.
Rule
When the accused has already entered his plea and
Attorney - he can access his client at any day and at
participates during the trial without previously
any hour, day or night
invoking his objections, then he is deemed to have
Relative and those who are allowed to confer with waived his right to question the illegality of his arrest.
the accused under RA 7438 - within reasonable time There is also an instance where a previously illegal
based on the regulation of the prison or the detention warrantless arrest may be validated by the issuance
facility where he is of a warrant of arrest
The person's immediate family shall include his or her The filing of charges and the issuance of warrant of
spouse, fiancé, parent, child, brother or sister, arrest against a person invalidly detained will cure the
grandparent or grandchild, uncle or aunt, nephew or defect, that the detention or at least deny him the
niece and guardian or award. right to be released because of such defect. the
accused may be arrested by virtue of that warrant of
Sec 4, RA 7438 arrest and therefore, the issue of whether there was
xxx (b) Any person who obstructs, prevents or a valid warrantless arrest will become moot and
prohibits any lawyer, any member of the immediate academic.
family of a person arrested, detained or under
custodial investigation, or any medical doctor or Effects of failure to file a timely objection to illegal
priest or religious minister chosen by him or by any warantless arrest
member of his immediate family or by his counsel, 1) only the right to assail their arrest is waived
from visiting and conferring privately with him, or 2) He does not waive the right to question the
from examining and treating him, or from admissibility of the evidence seized by virtue of
ministering to his spiritual needs, at any hour of the
61

the illegal arrest. Thus, the fruit of the

poisonous tree still applies. 2019 Supreme Court Revised Rule on Children in
3) Legality of the arrest affects only the Conflict with the Law
jurisdiction of the court over the person of Section 8-A. Procedure for Handling A Child Exempted
the accused. The illegality of the arrest cannot from Criminal Liability Who Commits Serious Crimes. – A
in itself be the basis for acquittal as it will child who is above 12 years of age to 15 years of
not negate the validity of the conviction of the age and who commits a serious crime should be
accused. deemed a neglected child under Presidential Decree
4) even if the warrantless arrest of an accused is No. 603, as amended, and shall be mandatorily
later proven to be invalid, such fact is not placed in the Intensive Juvenile Intervention and
Support Center (IJISC) of a Bahay Pag-asa. The
sufficient to cause to set aside a valid judgment
procedure provided in Section 20-A, Republic Act
rendered upon sufficient complaint after trial No. 9344, as amended, shall be observed as follows:
free from error. A) A petition for involuntary commitment and
placement under the IJISC shall be filed by
Effect of admission to bail on objections to an the local social welfare and development
illegal arrest officer of the local government unit where
1) Shall not bar the accused from challenging the the offense was committed, or by the
validity of the arrest or the legality of the Department of Social Welfare and
warrant issued, provided that he raises the Development social worker in the local
objection before he enters his plea. social welfare and development officer's
2) the objection shall be resolved by the court as absence, within 24 hours from the time of
early as practicable, but not later than the start the receipt of a report on the alleged
commission of said child.
of the trial of the case.
B) The court, where the petition for involuntary
commitment has been filed, shall decide on
Privilege from arrest the petition within 72 hours from the time
Under Section 11, Article VI of the 1987 constitution, the said petition has been filed by the
a senator or a member of the House of Representatives Department of Social Welfare and
shall, in all offenses punishable by not more than six Development/ Local Social Welfare and
years imprisonment, be privileged from arrest when Development Office.
the Congress is in session. C) The court will determine the initial period of
placement of the child within the IJISC
Does not apply which shall not be less than one year.
1) when not in session D) The multi-disciplinary team of the I.TISC
2) When the offense is punishable more than will submit to the court:
six years even if Congress is in session 1) A case study and progress report, to
include a psychiatric evaluation report,
and recommend the reintegration of the
Other exempt child to his/her family or the extension
Sovereigns and other Chiefs of State, ambassadors, of the placement under IJISC; and
ministers plenipotentiary, ministers resident in charge 2) A report to the court on the services
of the affairs are immune from the criminal jurisdiction extended to the parents and family of the
of the country of their assignment and are therefore child and the compliance of the parents
immune from arrest. in the intervention program.
ARREST IN RELATION TO A CHILD IN e) The court will decide whether the child
CONFLICT WITH THE LAW has successfully completed the center-
based intervention program and is
AM 02-1-18-SC or The Revised Rule on Children in already prepared to be reintegrated with
Conflict With The Law his/her family, or if there is a need for
the continuation of the center-based
Section 8. Procedure for Handling Children rehabilitation of the child.
Exempted from Criminal Liability. - If it is f) The court will determine the next period
determined at the initial contact that the child is 15 of assessment or hearing on the
years of age or below, the procedure provided in commitment of the child.
Section 20, Republic Act No. 9344 shall be observed
as follows:
A) The authority which will have an initial Section 8-B. Procedure for Handling a Child
contact with the child, in consultation with Exempted from Criminal Liability Who Repeats
the local social welfare and development Commission of Offense. – A child who is above 12
officer, has the duty to immediately years of age up to 15 years of age and who
release the child to the custody of commits an offense for the second time or
his/her parents or guardian, or in the oftener: Provided, that the child was previously
absence thereof, the child’s nearest subjected to a community-based intervention
relative.
62

program, shall be deemed a neglected child under which shall ensure the implementation of
Presidential Decree No. 603, as amended, and shall: appropriate intervention programs, as well as the
a) Undergo an intensive intervention program safety and appearance of the child in court. In the
supervised by the local social welfare and absence of a "Bahay Pag-asa" established by the local
development officer; government pursuant to Section 8 of the Family
b) If the best interest of the child requires that Courts Act, and Republic Act No. 9344, as amended,
he/she be placed in a youth care facility or in the city or municipality where the child resides, or
"Bahay Pag-asa, the child's parents or a local rehabilitation center recognized by the
guardians shall execute a written government in the province, city or municipality
authorization for voluntary commitment of within the jurisdiction of the court, or the
the child; Department of Social Welfare and Development, or
c) If the child has no parents or guardians or if other appropriate local rehabilitation center,
they refuse or fail to execute a written detention pending trial may be replaced by
authorization for voluntary commitment alternative measures such as close supervision,
under Section 8-B(b), the proper petition for intensive care or replacement with a family or in an
involuntary commitment shall be educational setting or home. Institutionalization or
immediately filed by the Department of detention of a child pending trial should be used only
Social Welfare and Development or the as a last resort and for the shortest possible time.
Local Social Welfare and Development (Incorporated from A.M. No. 02-1-18 Re: Rule on
Office pursuant to Presidential Decree No. Juveniles in Conflict with the Law issued on June 26,
603, as amended. 2018)
Section 9. Procedure for Children Not Exempted SEARCH AND SEIZURE

from Criminal Liability. – A child fifteen (15) years
and one (1) day old or above but below eighteen (18) RULE 126
years of age at the time of the commission of the Section 1. Search warrant defined. — A search warrant
offense shall, at the sound discretion of the court is an order in writing issued in the name of the
and subject to its supervision, be released on People of the Philippines, signed by a judge and
recognizance to the care of the willing and directed to a peace officer, commanding him to
responsible mother or father, or appropriate search for personal property described therein and
guardian or custodian, or, in their absence, the bring it before the court.
nearest relative. However, if the prosecution
determines that the child acted with discernment, Section 2. Court where application for search
the child shall be proceeded against in accordance warrant shall be filed. — An application for search
with Sections 24 to 27 or, in case of diversion, warrant shall be filed with the following:
Sections 29 to 37 of this Rule. a) Any court within whose territorial jurisdiction a
crime was committed.
Section 24. Release of Children on Recognizance to b) For compelling reasons stated in the
the Parents, Guardian, Custodian or Nearest application, any court within the judicial region
Relative. – The release of a child from custody where the crime was committed if the place of the
during the pendency of the case involving an offense commission of the crime is known, or any court
not punishable by death, reclusion perpetua or life within the judicial region where the warrant shall be
imprisonment may be ordered by the court only enforced.
after a hearing for that purpose, and upon favorable
recommendation of the social worker assigned to However, if the criminal action has already been
the child with due notice to the public prosecutor, filed, the application shall only be made in the court
the Sanggunian where the accused resides, and the where the criminal action is pending.
private complainant. The child shall be released to
the custody of a willing and responsible mother or Section 3. Personal property to be seized. — A
father, or appropriate guardian or custodian, or in search warrant may be issued for the search and
their absence, the nearest relative, who shall be seizure of personal property:
responsible for the child's good behavior and a) Subject of the offense;
appearance in court whenever required. b) Stolen or embezzled and other proceeds, or fruits
of the offense; or
No child shall be ordered detained in jail pending c) Used or intended to be used as the means of
trial or hearing of the child's case. (Incorporated committing an offense.
from A.M. No. 02-1-18 Re: Rule on Juveniles in
Conflict with the Law issued on June 26, 2018) Section 4. Requisites for issuing search warrant. —
A search warrant shall not issue except upon
Section 25. Commitment and transfer to a Bahay probable cause in connection with one specific
Pag-asa. – A child charged with an offense, unless offense to be determined personally by the judge
released on bail or recognizance, may be transferred after examination under oath or affirmation of the
to a "Bahay Pag-asa" or rehabilitation center or other complainant and the witnesses he may produce, and
appropriate facility operated or accredited by the particularly describing the place to be searched and
Department of Social Welfare and Development
63

the things to be seized which may be anywhere in there is an evidence or there is cause to prosecute a
the Philippines. certain person for a criminal offense.
Section 5. Examination of complainant; record. — Rationale

The judge must, before issuing the warrant, Much like in warrants of arrest, the general rule is that
personally examine in the form of searching no search and seizure can be made without a valid
questions and answers, in writing and under oath, warrant issued by a competent judicial authority.
the complainant and the witnesses he may produce
on facts personally known to them and attach to the
record their sworn statements, together with the Arrest Search and seizure
affidavits submitted. The rules on arrest are A search is concerned
concerned with the with the seizure of
Section 6. Issuance and form of search warrant. — seizure of person so he personal properties
If the judge is satisfied of the existence of facts upon may be made to answer subject of the offense,
which the application is based or that there is for the commission of an stolen, or embezzled
probable cause to believe that they exist, he shall offense. It involves the property, fruits of the
issue the warrant, which must be substantially in the taking of a person into offense or those
form prescribed by these Rules. custody intended to be used to
commit an offense.
Art III, 1987 Constitution A probable cause to the Probable cause to search
arrests does not requires facts to show
SECTION 2. The right of the people to be secure in
necessarily involve a that particular things
their persons, houses, papers, and effects against
probable cause to search, connected with a crime
unreasonable searches and seizures of whatever
and vice versa. Probable are found in a specific
nature and for any purpose shall be inviolable, and
cause to arrest involves a location
no search warrant or warrant of arrest shall issue
different determination
except upon probable cause to be determined
from probable cause to
personally by the judge after examination under oath
search.
or affirmation of the complainant and the witnesses
he may produce, and particularly describing the
In order to determine
place to be searched and the persons or things to be
the probable cause to
seized
arrest, the judge not the
prosecutor must have
Section 1. Search warrant defined. — A search warrant sufficient facts in his
is an order in writing issued in the name of the hands, that would tend
People of the Philippines, signed by a judge and to show that a crime has
directed to a peace officer, commanding him to been committed and that
search for personal property described therein and a particular person
bring it before the court. committed it.
An arrest with a warrant A search warrant is
Nature of application for search warrant may be on any day and at generally served in the
It is a special criminal process and is heard ex parte. A any time of day or night. daytime unless there is a
search warrant is not criminal action nor does it direction in the warrant,
represent a commencement of a criminal prosecution that it may be served at
even if it is entitled like a criminal action. It is not a any time at the day or
proceeding against a person but it is solely for the night.
discovery and to get possession of personal The issuance of a A search warrant does
property. warrant of arrest not require the existence
presupposes the of a criminal case. It may
It is a special and peculiar remedy, drastic in nature, and existence of a pending be issued prior to the
criminal case that give filing of the case.
made necessary because of public necessity. It
rise to the warrant.
resembles, in some respect, with what is commonly
known as John Doe proceedings.
Section 2. Court where application for search warrant shall
be filed. — An application for search warrant shall be
John Doe proceedings - an independent investigatory filed with the following:
tool to ascertain whether a crime has been committed, a) Any court within whose territorial
and if so, by whom. One aspect of a John Doe jurisdiction a crime was committed.
proceeding is to allow law enforcement officers, b) For compelling reasons stated in the
through a court order by a judge, to examine a witness application, any court within the judicial
and to collect other sources of evidence to determine region where the crime was committed if the
whether there is criminal conduct which should be place of the commission of the crime is
prosecuted. It is similar because you can actually file known, or any court within the judicial
for a search warrant even before a criminal case is filed region where the warrant shall be enforced.
in court. What it seeks to find out is whether or not
64

However, if the criminal action has already been

filed, the application shall only be made in the court GR: Must be particularly described
where the criminal action is pending. XPN:
1) particular thing is found to be a contraband or
GR: application for search warrant shall be filed with articles, the possession of which without, more
any court within whose territorial jurisdiction a crime constitutes a crime, they will not be ordered
was committed (no need to state the compelling returned but shall be confiscated in favor of the
reasons) state or destroyed as the case may be.
XPN:
1) For compelling reasons stated in the How long does the court has to have custody
application, any court within the judicial Art. 125. Delay in the delivery of detained persons to the
region where the crime was committed if proper judicial authorities. – The penalties provided in
the place of the commission of the crime is the next preceding article shall be imposed upon the
known public officer or employee who shall detain any
2) For compelling reasons stated in the person for some legal ground and shall fail to deliver
application, any court within the judicial such person to the proper judicial authorities within
region where the warrant shall be enforced. the period of: twelve (12) hours, for crimes or
3) If the criminal action has already been filed, the offenses punishable by light penalties, or their
application shall only be made in the court equivalent; eighteen (18) hours, for crimes or
offenses punishable by correctional penalties, or
where the criminal action is pending.
their equivalent; and thirty-six (36) hours, for crimes
or offenses punishable by afflictive or capital
Inherent power to quash search warrant of the penalties, or their equivalent.
courts
The issuance of a search warrant is part of a court’s Section 4. Requisites for issuing search warrant. — A
exercise of its ancillary jurisdiction and not of its search warrant shall not issue except upon probable
criminal jurisdiction. Because it has the power to issue cause in connection with one specific offense to be
search warrants it also has the inherent power to quash determined personally by the judge after
warrants already issued examination under oath or affirmation of the
complainant and the witnesses he may produce, and
Administrative Matter No. 99-20-09-SC particularly describing the place to be searched and
1) ALL APPLICATIONS OF SEARCH the things to be seized which may be anywhere in
WARRANT involving heinous crimes, the Philippines.
illegal gambling, dangerous drugs and
illegal possession of firearms. Requirements
2) For these specific crimes, heinous crimes, 1) The warrant must be issued upon probable
illegal gambling, dangerous drugs and illegal cause.
possession of firearms,
 the executive judge and vice executive Probable cause - is defined as such facts and
judges of the regional trial courts of circumstances which would lead a reasonably discreet
Manila and Quezon City, filed by and prudent man to believe that an offense has been
Philippine National Police, the committed and that the object sought in the
National Bureau of Investigation, the connection with the offense are in the place sought to
Presidential Anti-Organized Crime be searched.
Task Force (PAOC-TF) and the
Reaction Against Crime Task Force 2) The probable cause must be determined by the
(REACT-TF) with the Regional Trial judge himself and not by the applicant or any
Courts of Manila and Quezon City other person.
 The required procedure for the
Sec. 3. Personal property to be seized. – A search determination of the judge is that the
warrant may be issued for the search and seizure of examination must be personally
personal property: conducted by the judge.
a) Subject of the offense;  The examination must be in the form
b) Stolen or embezzled and other proceeds, or of searching questions and answers.
fruits of the offense; or  The complainant and the witnesses
c) Used or intended to be used as the means of shall be examined on those facts
committing an offense. personally known to them
 The statements must be in writing and
The seizure of items not specified in the warrants under oath, and the sworn statements
cannot be justified by the directive to seize and take of the complainant and the witnesses,
possession of other properties relative to such together with the affidavit submitted
violation which, in no way, can be characterized as a shall be attached to the record.
particular description of the things to be seized
65

3) In the determination of probable cause, the The Supreme Court said that the description of the
judge must examine, under oath or affirmation, place to be searched is sufficient if the officer
the complainant and such witnesses as the with the warrant can, with reasonable effort,
latter may produce. ascertain and identify the place intended and
distinguish it from other places in the
Warrant of arrest Search warrant community. Any designation or description known
the judge will personally the judge will require a to the locality that points out to the place to the
look at the documents, personal examination of exclusion of all others and on inquiry leads the
information, and the complainant or the officers unerringly to it satisfies the constitutional
supporting evidence, etc. one that applied for a requirement. (Uy v. BIR)
search warrant, and the
witnesses which he may Things must be particularly described
provide. A search warrant may be said to particularly describe
the things to be seized when:
4) The warrant issued must particularly 1) the description therein is a specific as the
describe the place to be searched and persons circumstances will ordinarily allow;
or things to be seized. 2) the description expresses a conclusion of fact
not of law, by which the warrant officer may be
The long-standing rule is that a description of the place guided in making the search and seizure;
to be searched is sufficient if the officer with the 3) the things described are limited to those who
warrant can with reasonable effort ascertain and bear a direct relation to the offense for which
identify the place intended and distinguish it from the warrant is being issued.
other places in the community. Any designation or
description that points out the place, to the The law does not require that the things to be seized,
exclusion of all others, and on inquiry leads the must be described in precise and minute detail as to
officers unerringly to it satisfies the constitutional leave no room for doubt on the part of the searching
requirement. authorities.
5) The applicant and the witnesses must testify on A search warrant is not sweeping authority
the facts, data or information personally empowering a raiding party to undertake a fishing
known to them. expedition to seize and confiscate any and all kinds of
evidence or articles relating to a crime.
Nullification of search warrant
1) The absence of any of these requisites will Contraband
cause the downright nullification of the search When it pertains to contrabands or those things which
warrant. are illegal per se, there is less stringent requirements on
2) The issuance of a search warrant for more the jurisprudence as to the particular description.
than one offense would violate Section 4 of
Rule 126, and is not allowed. When partly valid and partly void
3) Absent the element of personal knowledge As to the part where it is too general or it admits of
by the applicant or his witnesses, of the facts even those things which may not be in connection with
upon which the issuance of a search warrant the crime or which may be connected with a valid
may be justified, the warrant is not deemed business therefore, the public officers or the officers
based on probable cause and is a nullity. Its enforcing the search warrant actually had to apply
issuance being in legal contemplation, arbitrary. discretion. But as to the part where the things to be
seized or actually seized is actually particularly
Place must be particularly described described, the seizure of those things are valid.
The caption of the search warrant provides or
indicates the address of petitioner as “Hernan Ownership
Cortez Street, Cebu City," while the body of the Ownership is of no consequence. It is sufficient that
search warrant states that that the address is the person against whom the warrant is directed has
“Hernan Cortez Street, Mandaue City”. control and possession of the properties sought to be
seized.
The Supreme Court did not consider the
discrepancy as sufficient to consider the warrant as Section 5. Examination of complainant; record. — The
constitutionally infirm. It was not shown that judge must, before issuing the warrant, personally
there was a street with the same name in Cebu examine in the form of searching questions and
City, nor was it established that the officers answers, in writing and under oath, the complainant
enforcing the warrant had difficulty locating the and the witnesses he may produce on facts
premises of the petitioner which was actually in personally known to them and attach to the record
Hernan Cortez Street, Mandaue City. their sworn statements, together with the affidavits
submitted.
66

after said notice and demand such officers are refused

Section 6. Issuance and form of search warrant. — If the entry to the place of directed search. This is known as
judge is satisfied of the existence of facts upon which the knock and announced principle which is embodied
the application is based or that there is probable in Anglo American law. The method of entry of an
cause to believe that they exist, he shall issue the officer into a dwelling in the presence or absence of
warrant, which must be substantially in the form such notice are as important considerations in
prescribed by these Rules. assessing whether subsequent entry to the search
and/or arrest is constitutionally reasonable.
Form of search warrant
1) It must be in the name of the People of the In case in which the occupants of the house being
Philippines; searched refused to open the door despite the fact
2) It must be signed by the judge after finding that the searching party knocked on the door several
probable cause; times and the agent saw the suspicious movements
3) The finding of probable cause must be through of the people inside the house, such circumstances
the examination under oath or affirmation of will justify the searching party's forcible entry to the
the complainant and the witnesses that he may house founded as it is on the apprehension that the
present, and must be personally made by the execution of their mission will be frustrated unless
judge through probing searching questions they do so. (People v. Salangit)
4) Must particularly described the place to be
searched, or the person to be searched, and the Requisites
thing or things to be seized. 1) that the officer gives notice of his purpose
5) It must command a peace officer or a law and authority;
enforcement officer to search for personal 2) he is refused admittance to the place of
property described therein and bring it before directed search despite notice; and
the court. 3) the purpose of breaking is to execute the
warrant or to liberate himself or any person
Waiver lawfully aiding him when unlawfully detain
failure to object during the trial of the case to the therein
legality of the search warrant and to the admissibility of
the evidence obtained thereby. Section 8. Search of house room or premises to be made in
presence of two witnesses. – No search of house, room or
Search warrant Warrant of arrest any other premises shall be made except in the
Objection must be Objection must be presence of the lawful occupant thereof or any
during trial before plea member of his family, or, in the absence of the
latter, two witnesses of sufficient age and
discretion, residing in the same locality.
It has been consistently ruled that an accused is
estopped from assailing any irregularity of his arrest if
The purpose of the presence of these people is to see
he fails to raise this issue or to move for the quashal of
to it that there is no planting of evidence that the search
the information against him on this ground before
is validly conducted to see to it that the lawful occupant
arraignment. Any objection involving a warrant of
or the family member, or the two witnesses, how the
arrest or the procedure by which the court acquired
search is being conducted.
jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the
Section 9. Time of making search. — The warrant must
objection is deemed waived. (Rebellion v. People)
direct that it be served in the day time, unless the
affidavit asserts that the property is on the person or
It bears stressing that the legality of the arrest affects in the place ordered to be searched, in which case a
only the jurisdiction of the court over their persons. direction may be inserted that it be served at any
Their warrantless arrests cannot, by themselves, be the time of the day or night.
bases of their acquittal. (People v. Yau)
Execution
Section 7. Right to break door or window to effect search. GR: It be executed in the daytime
— The officer, if refused admittance to the place of XPN:
directed search after giving notice of his purpose 1) If the property to be seized is in the person of
and authority, may break open any outer or inner the accused, then the search warrant may direct
door or window of a house or any part of a house or that it may be executed it at any time of the day
anything therein to execute the warrant or liberate or night when the person to execute it sees or
himself or any person lawfully aiding him when
has the opportunity to search the person
unlawfully detained therein.
described in the search warrant
Principle of knock and announce 2) the place searched is ordered it can only be
They may only break open any outer or inner door or accessed at a certain time during the night.
window of a house to execute the search warrant if
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XPN of XPN: if not indicated in the search warrant, book on search warrants who shall enter
we must go back to the provision of the rules that it be therein the date of the return, the result, and
served at the day time. If it is allowed that it be served other actions of the judge.
during the nighttime then it must be specifically
indicated or the direction that it be served at any time A violation of this section shall constitute contempt
in the day or night must be indicated in the search of court.
warrant.
Delivery, inventory and return proceedings
Section 10. Validity of search warrant. — A search 1) The officer must forthwith deliver the property
warrant shall be valid for ten (10) days from its date. seized to the judge who issued the warrant,
Thereafter it shall be void. together with a true inventory thereof duly
verified under oath.
Search warrant Warrant of arrest 2) The judge shall ascertain if the return has been
Valid for 10 days, cannot Valid as long as it is not made, he shall do so 10 days after the issuance
be used every day for 10 recalled of the search warrant.
days for different 3) If no return has been made, the judge shall
purposes each day summon the person to whom the warrant
Can actually be was issued, and require him to explain why no
extended, so long as the return has been made.
search conducted is not 4) If the return has been made, the judge shall
another search but ascertain whether Section 11 of Rule 126 (the
merely a continuation giving of the receipt of the property seized) was
of the search that has complied with, and shall require that the
been begun during the
property seized be delivered to him.
effectivity of the search
warrant. 5) When the evidence shows that the judge who
issued the search warrant did not require the
Section 11. Receipt for the property seized. — The officer officers executing the warrant to make an
seizing property under the warrant must give a accurate and complete inventory of the things
detailed receipt for the same to the lawful occupant seized and submit the same to him, he is guilty
of the premises in whose presence the search and of gross ignorance of the law.
seizure were made, or in the absence of such
occupant, must, in the presence of at least two Section 13. Search incident to lawful arrest. — A person
witnesses of sufficient age and discretion residing in lawfully arrested may be searched for dangerous
the same locality, leave a receipt in the place in weapons or anything which may have been used or
which he found the seized property. constitute proof in the commission of an offense
without a search warrant.
After the search there will always be a receipt given to
the lawful occupant, or to the member of his family, or GR: A valid search may only be effected by obtaining
to the 2 witnesses. Therefore, the searching team a valid search warrant
cannot use the same search warrant to search the XPN:
premises again. They have to secure another search 1) Warrantless search incidental to a valid or
warrant. lawful arrest;
2) Consented warrantless search; searches with
Section 12. Delivery of property and inventory thereof to the Express waiver of the person being search
court; return and proceedings thereon. — 3) Custom search;
a) The officer must forthwith deliver the  It may be of vessels or aircrafts or
property seized to the judge who issued public utilities like buses, jeepneys, etc
the warrant, together with a true inventory in relation to immigration law, fishery
thereof duly verified under oath. law, laws on airports, seaport security,
b) Ten (10) days after issuance of the search jail safety
warrant, the issuing judge shall ascertain if
4) Plain view doctrine
the return has been made, and if none, shall
summon the person to whom the warrant 5) Stop and frisk (Terry Search)
was issued and require him to explain why 6) Search of a moving vehicle
no return was made. If the return has been 7) Exigent and emergency circumstances
made, the judge shall ascertain whether 8) Inspection of buildings and other premises to
section 11 of this Rule has been complied enforce building laws, fire laws, safety
with and shall require that the property standards laws.
seized be delivered to him. The judge shall 9) Canine dog sniff test and thermal imaging.
see to it that subsection (a) hereof has been
complied with. In relation to sec. 2 of Art. III of the Constitution, if
c) The return on the search warrant shall be the elements or requirements that are provided for
filed and kept by the custodian of the log under the Constitution or the law or jurisprudence is
68

met, then the search even without a warrant will not be It could be in a wharf, in a port, i.e. airport or seaport.
considered unreasonable. It could be in vessels or aircrafts so long as it is
pursuant to the tariff and customs codes.
Section 13. Search incident to lawful arrest. — A person
lawfully arrested may be searched for dangerous What is common in the implementation of these laws
weapons or anything which may have been used or is that the police or enforcement officer has the initial
constitute proof in the commission of an offense right to ask any person who may be carrying things,
without a search warrant. which they reasonably believe would be under or
covered by these respective laws to ask for the
Search incident to lawful arrest authority to transport it or the authority to have it in
The purpose of the rule is to protect the arresting their possession.
officer against physical harm from the person being
arrested, who might be armed with a concealed In the absence of any papers, then they will have
weapon, and also to prevent the person arrested from already reasonable justification and or probable cause
destroying the evidence within his reach. to conduct a further search or inspection
Requisites Routine checks

1) There must be a by valid arrest; and 1) Routine checks in airports
2) The search must be limited to space and time. 2) Routine checks in seaports
 It is limited as to time when it is made 3) Public transport terminals
at the earliest possible opportunity 4) Jail safety
after the arrest and there must be no
considerable lapse of time. In these public areas, there is a diminished expectation
 It is also limited as to space it is made of privacy; because inspections are conducted in these
on the person arrested or the public areas for the safety of the general public. The
immediate vicinity where he has Supreme Court has continuously upheld that the
effective control, 1) to cart away limited intrusion into the person and the things that
evidence or they may bring into these public spaces is a valid
2)to get weapon warrantless search.
Effect of noncompliance Related laws

1. If there is no valid arrest, then whatever is 1) Airports - Republic Act 6235
searched incident to that arrest would be 2) Seaport - Executive Order Number 513
fruits of the poisonous tree.
2. If there is a violation to the requirement that Plain view doctrine
the search must be limited to space and The doctrine states that the objects within the sight of
time, all things searched which may violate the an officer who has a right to be in a position to have
limitation as to time or space will be the view, are subject to seizure and may be presented
considered as fruits of the poisonous tree. as evidence.
Consented search Elements

It is when the right against warrantless searches has 1) A prior valid intrusion based on the valid
been voluntarily waived. It occurs when a person gives warrantless arrest in which the police are legally
a law enforcement agent permission to search in areas present in the pursuit of their official duties
where such person has reasonable expectation of 2) The evidence was inadvertently discovered
privacy. by the police who have the right to be where
 Jurisprudence requires that in instances of they are.
consented searches, it is fundamental that, to 3) The evidence must be immediately apparent
constitute a waiver: the right to waive exists. 4) Plain view justified where seizure of evidence
 The person involved has knowledge of the without further search
existence of such right.
 The said person had an actual intention to Stop and frisk/ Terry search
relinquish such right Two purposes
1. The general interests of effective crime
The implied agreement to a search, if there was any, prevention and detection; and
could not have been more than mere passive 2. The safety of the police officer to take steps
conformity given under intimidating or coercive to assure himself that the person with whom
circumstances, and is thus considered no consent he deals is not armed with a deadly weapon that
at all within the purview of the constitutional could be used against him.
guarantee.
Two parts
Customs search
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1) Stop - a valid stop by an officer requires that he Exigent and emergency circumstances
has a reasonable and articulable belief that a This exception applies during extraordinary times
criminal activity has happened or is about to wherein warrantless searches are allowed, such as coup
happen. This is based on the experience of the d’état and rebellions, where the courts are not open.
law enforcement officer This could also apply during times of unrest or when
2) Frisk - the frisk must be merely a pat down there is general political instability. Where because of
outside the person's outer garment, and not the exigencies of what is happening in the country, a
unreasonably intrusive. valid warrantless search may be conducted to aid in the
administration of justice.
Extensive search
If upon you frisking on the outside garment, there is Inspection of buildings and other premises to enforce
reasonable belief that there is a concealed weapon, then building laws, fire laws, safety standards laws
that will allow or authorize the law enforcement officer In the Building Code of the Philippines, building
to do a more extensive search of the body of the officials has authority to inspect compliance with the
person. Building Code as to the structure, the materials that
were used, compliance with a minimum requirement as
Search of moving vehicle to height, etc. For the purpose of this inspection, there
To do a valid stop of the moving vehicle, there must is no need to secure a prior judicial search warrant.
be an initial determination of probable cause which in
this instance means or signifies a reasonable ground of In the inspection of the Bureau of Fire officials for
suspicion, supported by circumstances, which are compliance with the Fire Code - whether there is
sufficiently strong in themselves to warrant a cautious enough fire exits, enough fire extinguishers, or other
man's belief that an offense has been committed, and safety protocols that are required under the Fire Code
that the items articles or objects sought in connection - no need for prior search warrant for the inspection.
with said offense are subject to seizure and destruction
by law is in the place to be searched. This also applies to our Sanitation Code of the
Philippines - to ensure that there is compliance with
Normally permissible searches of moving vehicle this, the officers in charge with implementing the
1) where the officer merely draws aside the Sanitation Code does not need any prior search warrant
curtain of a vacant vehicle which is parked on for the conduct of inspection to see to it that there is
the public fairgrounds; compliance with the Code.
2) simply looks into a vehicle - flashes a light
therein without opening the cars door; Canine/dog sniff test and thermal imaging
3) where the occupants are not subjected to a Canine dog sniff
physical or body search; 1) When the canine or dog sniff test is conducted
4) where the inspection of the vehicle is limited to in an airport or a seaport or in a public area,
a visual search or visual inspection; and then it may be considered as valid using the
5) where the routine check is conducted in a fixed same justification as when we enter into an
area. airport or a seaport. There is diminish
expectation of privacy.
Extensive search 2) When the canine or sniff test is used in a house
If after conducting the visual search, there is cause to or a private property, where there is no
do a more extensive search, then that would be expectation of diminished privacy, the
allowed. requirement would be, before that test is
conducted, is authority for test to be
Requirements for a valid checkpoint conducted. Otherwise, it will be considered as
1) the location of checkpoints must be fixed; an unreasonable search.
2) the location of checkpoints must be
determined by responsible officers; Thermal imaging
3) checkpoints must be manned by at least one 1. If the situation of the use of the thermal
officer for command responsibility purposes; imaging device is in places like airports,
4) the search in the checkpoint must be limited seaports, or in public spaces, since there is
to visual search; and already a diminished expectation of
5) one must not be detained longer than what privacy, it is then a valid intrusion into
is necessary for a visual search. privacy.
2. When thermal imaging devices are used to
Aerial target zoning conduct surveillance or to investigate a private
Search of a particular area. If there is no priorly household, then again that would be a totally
obtained search warrant, then that would be invalid - different matter and authority to conduct such
that would be an unreasonable search. investigation or a search warrant must be
obtained first - specifically authorizing the use
70

of thermal imaging. Otherwise, it will be 1) The provision of Section 2, Article III of the
considered as an unreasonable search. Constitution is leveled against the State or law
enforcement officers of the State and it is not
Doctrine of the fruit of the poisonous tree against private persons.
Section 3(2), Article III of the 1987 Constitution An 2) Where there is no participation of the
exclusionary rule which instructs that the evidence government cannot be considered as
obtained and confiscated on the occasion of such unreasonable searches and seizure in relation to
unreasonable searches and seizures are deemed Section 2, Article 3 of the Constitution (a
tainted and should be excluded for being the private person can validly arrest a person
proverbial fruit of a poisonous tree. committing a crime, or has just committed a
crime, or is attempting to commit a crime (in
Any evidence obtained in violation of such flagrante delicto arrest) under Section 5 of Rule
constitutional provision shall be inadmissible for any 113 of the Revised Rules on Criminal
purpose in any proceeding. The evidence obtained Procedure)
through an unlawful search would be inadmissible as
evidence against the accused, and this applies to both Section 14. Motion to quash a search warrant or to
instances of illegally obtained search warrant or invalid suppress evidence; where to file. — A motion to quash a
warrantless search. search warrant and/or to suppress evidence
obtained thereby may be filed in and acted upon
Effect of waiver of the illegal warrantless arrest only by the court where the action has been
The inadmissibility of the fruit of the poisonous tree is instituted. If no criminal action has been
not waived, even if objecting to the validity of the instituted, the motion may be filed in and
warrant of arrest or search warrant is already resolved by the court that issued the search
deemed waived, because it was not a questioned warrant. However, if such court failed to resolve the
before the entry of the plea. motion and a criminal case is subsequent filed in
another court, the motion shall be resolved by the
Civil damages and criminal liability latter court.
Rule 126 of the Rules on Criminal Procedure No
counter – claim, cross – claim or third – party 1) If there is still no criminal complaint or
complaint may be filed by the accused in the criminal information filed in court and then you filed an
case, but any cause of action which could have been application for a search warrant and then a
the subject thereof maybe litigated in a separate civil search warrant is subsequently issued, the
action. motion may be filed in and resolved by the
court that issued the search warrant.
1) The proceedings under Rule 126 of the Rules 2) A motion to quash a search warrant and/or to
on the Revised Rules on Criminal Procedure suppress evidence obtained thereby may be
do not provide for the filing of the counter filed in and acted upon only by the court
claims for damages against those who may where the action has been instituted
have improperly sought the issuance of the 3) If such court failed to resolve the motion and
search warrant. a criminal case is subsequent filed in another
2) the aggrieved party have the right to seek court, the motion shall be resolved by the
damages if the circumstances warrants by filing latter court
a separate civil action for the wrongs inflicted
on them by an improperly obtained or Who may assail the issuance of a search warrant?
enforced search warrant. There is civil liability Well settled is the rule that the legality of seizure can
on the basis of the concept of an independent be contested only by the party whose right has been
civil action for violation of a person’s right to impaired thereby and the objection to an unlawful
be secure in his person, house, papers, and search and seizure is purely personal and cannot be
effects against unreasonable searches and availed of by any third party.
seizures under Article 32 (9) of the New Civil
Code. If the proper party in interest, the person who is
3) This liability shall be separate and distinct from actually prejudiced by the illegal search, wants to file
any criminal liability that may arise from the for a motion to quash, or motion to suppress evidence,
Revised Penal Code, such as violation of there is no need for the public prosecutor’s conformity
domicile under Article 128 of the RPC, search with that motion.
warrant maliciously obtained, and abuse in the
service of those legally obtained under Article The question of whether there was abuse in the
129 of the RPC, or possibly searching domicile enforcement of the challenged search warrant is not
without witnesses under Article 130 of the within the scope of the motion to quash or the motion
RPC. to suppress evidence. Otherwise stated, the manner of
serving the warrant and effecting the search are
Relating to the Constitutional right not an issue to be resolved in a motion to quash.
71

The remedies against such abuse are penal, civil, or conditions herein after specified. Bail may be given
administrative. in the form of corporate surety property, bond, cash
deposit, or recognizance.
Remedies
1) The motion to quash the search warrant; - Characteristics
whether or not there is a case filed in court 1) Bail is a security - the purpose of the giving of
2) The motion to suppress evidence obtained by bail is to guarantee the appearance of the
virtue of the invalid warrant; - when there is no accused at the trial.
case filed in court, before the accused enter his 2) Bail is furnished by the person to be released
plea or bondsman
3) Objection to the admissibility of the evidence 3) The security is given to guarantee the
obtained by virtue of an invalid warrant when appearance of the person released before any
such evidence is offered in evidence - when the court as required under the conditions
trial is already ongoing when the party has specified under Rule 114.
already presented the things seized under an
illegal search warrant Elements
1) The right is a constitutional right
A search warrant as an incident of a criminal case filed
Where the criminal case of which the search warrant is Constitution lays down the following fundamental
an incident has already been filed before the trial court tenets on bail;
for the purpose of determining the proper remedy  All persons charged before their conviction for
from a grant or denial of a motion to quash a search a criminal offense shall be entitled to bail. This
warrant, where the search warrant is issued as an is the general rule.
incident in a pending criminal case, the quashal of a  The suspension of the privilege of the writ of
search warrant is merely interlocutory. There is still habeas corpus does not impair the right to bail.
something more to be done in the said criminal case  Excessive bail is not required.
and the determination of the guilt of the accused
therein is yet to be determined. Purpose of bail
1) To relieve an accused from imprisonment until
Since you have no other remedy but to wait for the his conviction and yet assure appearance at the
entire case to be finished before you can question trial and at the same time enable him to prepare
whether the grant or the denial of the search warrant is his defense without being subject to
valid or not, then you can raise it up to a higher court, punishment prior to conviction.
to the Court of Appeals via petition for certiorari 2) To prevent the release of an accused who
under Rule 65 on the grounds of grave abuse of might otherwise be dangerous to society or
discretion. whom judges might not want to be released.
3) It acts as reconciling mechanism to
A search warrant in anticipation of a criminal case accommodate both the accused’s interest in
The denial or the grant of the search warrant actually liberty before trial and society's interest in
disposes of the case. assuring accused presence at the trial.
4) The right to bail is granted because in all
RIGHT TO BAIL criminal prosecutions the accused is presumed
Article III, 1987 Constitution innocent, that without bail bond the accused
SECTION 13. All persons, except those charged under detention cannot be released.
with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, General rules on bail
be bailable by sufficient sureties, or be released on 1. All persons charged before their conviction
recognizance as may be provided by law. The right for a criminal offense shall be entitled to bail.
to bail shall not be impaired even when the privilege 2. The suspension of the privilege of the writ
of the writ of habeas corpus is suspended. Excessive of habeas corpus does not impair the right
bail shall not be required.
to bail.
3. Excessive bail is not required.
Bail
4. The right can be invoked or is available the
A security given for the release of a person in
moment there is an arrest, with or without a
custody of the law, furnished by him or a bondsman,
warrant
to guarantee his appearance before any court as
5. The person to be released must be in custody
required under the conditions hereinafter specified.
of the law.
(Sec 1, Rule 114)
6. Before or after information is filed
Section 1. Bail defined. — Bail is a security given for
7. The hearing must be necessary and summary
the release of the person in custody of the law,
furnished by him or a bondsman to guarantee his
appearance before any court as required under the Narciso v. Sta Romana Cruz
72

The following are the duties of the trial judge in a security for the amount of the bail. Within
petition for bail in the offenses as mentioned: ten (10) days after the approval of the bond,
a) Notify the prosecutor of the hearing of the the accused shall cause the annotation of
application for bail or require him to submit his the lien on the certificate of title on file with
recommendation (Section 18, Rule 114 of the Rules of the Register of Deeds if the land is
Court as amended; registered, or if unregistered, in the
b) Conduct a hearing of the application for bail Registration Book on the space provided
therefor, in the Registry of Deeds for the
regardless of whether or not the prosecution refuses to
province or city where the land lies, and on
present evidence to show that the guilt of the accused the corresponding tax declaration in the
is strong for the purpose of enabling the court to office of the provincial, city and municipal
exercise its sound discretion (Sections 7 and 8, supra); assessor concerned.
c) Decide whether the evidence of guilt of the
accused is strong based on the summary of evidence Within the same period, the accused shall
of the prosecution (Baylon v. Sison, supra); submit to the court his compliance and his
d) If the guilt of the accused is not strong, discharge failure to do so shall be sufficient cause
the accused upon the approval of the bail bond. for the cancellation of the property bond
(Section 19, supra). Otherwise, petition should be and his re-arrest and detention. (11a)
denied.
Section 12. Qualifications of sureties in property
bond. — The qualification of sureties in a
Forms of bail (Sec 1, Rule 114)
property bond shall be as follows:
The form of bail is the choice of the accused
1) Corporate surety – Bonding company (a) Each must be a resident owner of real
guarantees the appearance in court of the estate within the Philippines;
accused. The accused only has to pay a (b) Where there is only one surety, his real
premium and the bond is renewed annually. estate must be worth at least the amount
of the undertaking;
General requirements (c) If there are two or more sureties, each
 The accused or someone acting on his may justify in an amount less than that
behalf can obtain this surety from any expressed in the undertaking but the
domestic or foreign corporation which aggregate of the justified sums must be
is licensed in the Philippines to provide equivalent to the whole amount of bail
a surety. demanded.
 Bail bond must also be subscribed by In all cases, every surety must be worth the
the accused and an officer of the amount specified in his own undertaking
corporate surety (solidarily liable) over and above all just debts, obligations and
 There are 3 parties in a corporate properties exempt from execution. (12a)
surety
1) state, Section 13. Justification of sureties. — Every
2) accused surety shall justify by affidavit taken before
3) corporate surety the judge that he possesses the
qualifications prescribed in the preceding
Section 10. Corporate surety. — Any section. He shall describe the property given
domestic or foreign corporation, licensed as security, stating the nature of his title, its
as a surety in accordance with law and encumbrances, the number and amount of
currently authorized to act as such, may other bails entered into by him and still
provide bail by a bond subscribed jointly by undischarged, and his other liabilities. The
the accused and an officer of the corporation court may examine the sureties upon oath
duly authorized by its board of directors. concerning their sufficiency in such manner
(10a) as it may deem proper. No bail shall be
approved unless the surety is qualified. (13a)
2) Property bond - If the accused has no cash
and no surety, title of a real property is Art. 316. Other forms of swindling. — The
penalty of arresto mayor in its minimum and
deposited in court; and it does not need to be
medium period and a fine of not less than
in the name of the accused.
the value of the damage caused and not
 There are 3 parties in a property surety more than three times such value, shall be
1) state, imposed upon:
2) accused
3) owner of the property xxx 6. Any person who, while being a surety
in a bond given in a criminal or civil action,
Section 11. Property bond, how posted. — A without express authority from the court or
property bond is an undertaking constituted before the cancellation of his bond or before
as lien on the real property given as being relieved from the obligation
73

contracted by him, shall sell, mortgage, or, in Under Section 2: The (bail) shall be effective upon
any other manner, encumber the real approval, and remain in force at all stages of the case,
property or properties with which he unless sooner cancelled until promulgation of the
guaranteed the fulfillment of such judgment of the Regional Trial Court, irrespective of
obligation. whether the case was originally filed in or appealed to
it
4) Cash deposit - The two parties to the
transaction are the State and the accused. 1) The case was originally filed with the first level
Unlike other bail bonds, the money may then court – Municipal Trial Court, Municipal
be used in the payment of that in which the Circuit Trial Court, Metropolitan Trial Court,
State is concerned, such as fines and costs, such etc. but brought on appeal to the Regional Trial
that when the accused violates the conditions Court. In which case, the bill remains effective
of the bail bond it may be forfeited in favor of even during the pendency of the appeal with
the State. the latter court until the promulgation of its
judgment.
Section 14. Deposit of cash as bail. — The 2) The case is originally filed with the Regional
accused or any person acting in his behalf Trial Court, in which case the bill remains
may deposit in cash with the nearest effective until the promulgation of judgment in
collector or internal revenue or
the RTC.
provincial, city, or municipal treasurer
the amount of bail fixed by the court, or
recommended by the prosecutor who Sec 2b
investigated or filed the case. Upon What are the instances under the rules wherein the
submission of a proper certificate of presence of the accused is required?
deposit and a written undertaking 1) At the arraignment and plea, whether of
showing compliance with the innocence or of guilt;
requirements of section 2 of this Rule, the 2) During trial whenever necessary for
accused shall be discharged from custody. identification of the accused; and
The money deposited shall be considered XPN: days of trial not for the identification of
as bail and applied to the payment of fine the accused
and costs while the excess, if any, shall be 3) Promulgation of the sentence
returned to the accused or to whoever
XPN: unless it is for a light offense, in which
made the deposit. (14a)
case the accused may appear by counsel or
representative.
Section 2. Conditions of the bail; requirements. — All
kinds of bail are subject to the following conditions:
a) The undertaking shall be effective upon Sec 2c
approval, and unless cancelled, shall GR: the purpose of that particular trial or hearing is for
remain in force at all stages of the case until the identification of the accused, he must be present
promulgation of the judgment of the XPN: unless the defense already stipulated as to the
Regional Trial Court, irrespective of whether identity of the accused
the case was originally filed in or appealed to
it; Sec 2d
b) The accused shall appear before the In relation to the duty of the bondsman to make sure
proper court whenever required by the that the accused is present when the court directs the
court or these Rules; accused to be present, in the situation that his sentence
c) The failure of the accused to appear at
will be promulgated because, again, that is one instance
the trial without justification and despite
that the presence of the accused is required, the
due notice shall be deemed a waiver of
his right to be present thereat. In such a bondsman is also empowered and duty bound to
case, the trial may proceed in absentia; surrender the accused to the court for the execution for
and the promulgation and then the execution of the final
d) The bondsman shall surrender the judgment.
accused to the court for execution of the
final judgment. Sec 2 par 2
Form of the application for bails
The original papers shall state the full name and 1) The original papers shall state the full name and
address of the accused, the amount of the address of the accused,
undertaking and the conditions herein required. 2) the amount of the undertaking and the
Photographs (passport size) taken within the last six conditions herein required.
(6) months showing the face, left and right profiles
3) Photographs (passport size) taken within the
of the accused must be attached to the bail
last six (6) months showing the face, left and
right profiles of the accused must be attached
Sec 2a
to the bail.
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The mere application for bail constitutes a waiver of

Section 23. Arrest of accused out on bail. — For the the defense of lack of jurisdiction over the person
purpose of surrendering the accused, the bondsmen of the accused. This is because upon application for
may arrest him or, upon written authority endorsed bail, affirmative relief is sought, thus, one is
on a certified copy of the undertaking, cause him to considered to have voluntarily appeared before the
be arrested by a police officer or any other person of court
suitable age and discretion.
Constructive custody
An accused released on bail may be re-arrested
One important concept that we reiterate when we talk
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of about custody of the law is- if the person of the accused
the court where the case is pending. is in the hospital, but only instances where there is
impossibility for the person in the hospital to come to
Constitutional restrictions the court to ask for or apply for bail, but he submits to
Right to travel the jurisdiction of the court - that is considered
The constitutional right to travel of a person accused constructive custody under the law. Therefore, the
of a crime and is undergoing criminal prosecution is accused can already apply for bail.
limited by the bail that he is on.
Application of bail
If the accused wants to travel abroad, he must ask leave The Revised Rules of Criminal Procedure on Bail
of court or permission from the court for that travel. pertains to criminal actions because it is under the
There must be a justification for the necessity of the Rules of Court. The Constitution, as interpreted in
travel abroad. many cases, does not only pertain to criminal
prosecutions. All persons except those charged with
Right to liberty of abode offenses punishable by Reclusion Perpetua when
When the accused chooses to transfer his residency, he evidence of guilt is strong shall be, for conviction, be
is duty bound to inform the court of the same. In that bailable by sufficient sureties or be released on
sense, the right of the accused to liberty of abode is also recognizance as may be provided for by law. The right
limited. to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended and excessive
Person to be released must be in custody of the law bail shall not be required.
Custody of the law may be attained when:
a) An accused is validly arrested; The Constitution is silent as to whether or not it only
b) He submits to the jurisdiction of the court applies to criminal prosecution. The interpretation of
upon his appearance before the court; the Supreme Court, however, is that it may apply to
c) There is constructive custody when there are other situations when there is a deprivation of liberty
reasons that he cannot appear before the court or when a person is under the custody of the law but
to apply for bail, but he still accedes to the not necessarily in the context of criminal proceedings.
court’s jurisdiction and that his custody is
already considered custody in law. EXCEPTIONS TO RIGHT TO BAIL
The right to bail in relation to military men who
The right to bail then may only be availed of by a are charged for offenses and the right to bail in
person in the custody of the law or otherwise deprived relation to extradition cases
of his liberty. Since bail is obtained for the provisional As to the military, the right to bail has traditionally not
liberty of the accused, the same cannot be authorized been recognized and is not available as an exception to
or posted before custody of the accused has been the provision of the Constitution on the right to bail.
acquired by judicial authority either by his arrest, with The right to a speedy trial is given more emphasis in a
or without warrant, or his voluntary surrender. military setting but the right to bail does not exist. The
unique structure of the military should be enough
The concept of custody under the law does not merely reason to exempt military men from the constitutional
signify restraint over the person or custody over the coverage of the right to bail.
body of the accused. It is not limited to detention. It
may also be present when the accused knows that his The argument that denial for the military of the right
liberty is already limited and that he submits to the to bail would violate the equal protection clause is not
limitation on his liberty. acceptable because military personnel are a class of
their own, they are not the same as civilians.
The rationale for this rule is to discourage the practice
where the accused could just send another on his They are governed by a different code of conduct,
behalf to post his bail without recognizing the organization and set of rules and when they are
jurisdiction of the court. prosecuted, based on the articles of war and based on
the rules under the military, the right to bail is not
A waiver of defense of lack of jurisdiction available to them because usually the violations are
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considered violations against the commander in

chief and violations of this nature go very much into xxx First, we note that the exercise of the State’s
the stability of the military hierarchy. power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings.
GR: the right to bail in the military is only not given Respondents in administrative proceedings,
for military offenses in Military Court Martials such as deportation and quarantine, have
XPN: when the military is involved in a criminal likewise been detained. Second, to limit bail to
criminal proceedings would be to close our eyes
action, which is filed in the prosecutor's office and then
to our jurisprudential history.
filed in the regular courts, then in that instance, they
are allowed to avail of their constitutional right to bail.
Government of Hong Kong Special
Administrative Region v. Olalia Jr.
Extradition proceedings In a subsequent ruling in the case of Government of
This is when a person, whether or not he is a citizen of Hong Kong Special Administrative Region vs. Olalia Jr.
the Philippines, has a criminal case or a case in a somehow abandoned the ruling in the case of
jurisdiction that is not the Philippines and where the Purganan. The Supreme Court ruled that following
Philippines and that particular foreign nation have an the trends in international law;
extradition treaty and because of the treaty, the 1) The growing importance of the
Philippines as a party to the treaty is mandated to take individual person in public international
custody of the person to be extradited. law, who, in the 20th century has gradually
attained global recognition.
The Government of the United States of 2) The higher value now being given to
America v. Purganan human rights in the international sphere.
Extradition proceedings 3) The corresponding duty of the countries to
The Supreme Court held that the constitutional observe this universal human rights in
provision on bail does not apply to extradition fulfilling their treaty obligation. And;
proceedings. It is available only in criminal 4) The duty of the Supreme Court to balance
proceedings. the rights of the individual under our
fundamental law on one hand, in the law
In extradition proceedings, prospective extraditees on extradition on the other.
are generally not entitled to notice and hearing
before warrants for their arrest can be issued. Extradition proceeding being sui generis
Neither are they entitled to the right to bail and The standard of proof required in granting or
provisional liberty while the extradition denying bail can neither be the proof beyond
proceedings are pending. reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence
The policy is that a prospective extraditee is arrested in civil cases. While administrative in character, the
and detained, to avoid his flight from justice. On the standard of substantial evidence used in
extraditee lies the burden of showing that he will not administrative cases cannot likewise apply given
flee once bail is granted. the object of extradition law which is to prevent the
prospective extraditee from fleeing our jurisdiction.
The extradition court is that called upon to ascertain In his Separate Opinion in Purganan, then Associate
the guilt or the innocence of the person sought to be Justice, now Chief Justice Reynato S. Puno,
extradited. The ultimate purpose of extradition proposed that a new standard which he termed
proceedings in court is only to determine whether "clear and convincing evidence" should be used
the extradition request complies with the in granting bail in extradition cases. According to
extradition treaty applicable, and whether the him, this standard should be lower than proof
person sought is extraditable. beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee
Exception must prove by "clear and convincing evidence"
Accordingly and to best serve the ends of justice, we that he is not a flight risk and will abide with all
believe and so hold that, after a potential extraditee the orders and processes of the extradition
has been arrested or placed under the custody of the court.
law, bail may be applied for and granted as an
exception, only upon a clear and convincing Bail hearings are mandatory
evidence showing Bail hearing is necessary even if the prosecution does
1) that, once granted bail, the applicant will not interpose any objection or leaves the application
not be a flight risk or a danger to the for bail to the sound discretion of the court. A
community; and hearing is required in order for the court to ascertain
2) that there exist special, humanitarian the adequacy of the amount of bail under the
and compelling circumstances guidelines set forth in section 9 rule 114 of the rules
including, as a matter of reciprocity, of criminal procedure.
those cited by the highest court in the
requesting state when it grants provisional Further, failure to conduct a hearing when
liberty in extradition cases therein. required before fixing bail will violate due process
and disregard of the established rule of law by
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depriving the prosecution of the opportunity to A person may be released on recognizance in the
prove that the evidence of guilt against the following cases:
accused is strong and will constitute gross 1) When the offense charge is for violation of
ignorance of the law or incompetence which will an ordinance, a light felony or a criminal
subject the judge to disciplinary action. offense that imposes a penalty, which does
Ignorance of this type, cannot be excused by a claim not exceed six months imprisonment and or
of good faith or excusable negligence. Thus, it is still a P2000 fine.
mandatory for the court to conduct a hearing and
2) When a person has been in custody for a
ask searching and clarificatory questions for the
purpose of determining the existence of strong period equal to or more than the minimum
evidence against the accused although the of the imposable principal penalty without
prosecution interposed no objection to the grant of application of the indeterminate sentence
bail or refuse to adduce evidence that the guilt of the law, or any modifying circumstances, in
accused was strong. which case the court in its discretion may allow
his release on his own recognizance. (Sec 16)
In reexamining Purganan the Court made the following 3) When the accused has applied for probation
observation: pending the resolution of the case, but no
1) The exercise of the state's power to deprive an bail was filed, or the accused is incapable of
individual of his liberty is not necessarily filing one.
limited to criminal proceedings,
respondents in administrative proceedings, Probation is a disposition under which a defendant,
such as deportation and quarantine have after conviction and sentence, is released subject to a
likewise been detained. condition imposed by the court and under the
2) To limit bail to criminal proceedings would supervision of a probation officer.
be to close our eyes to jurisprudential
history. The Philippine jurisprudence has not 4) In case of a youthful offender, held for
limited the exercise of the right to bail to physical and mental examination, trial, or
criminal proceedings only. This court has appeal, he is unable to furnish bail and under
admitted to bail persons who are not involved circumstances envisaged by PD 603, as
in criminal proceedings. In fact, bail has been amended
allowed in jurisdictions to persons in
detention during the pendency of Where each child is detained, the court shall order the
administrative proceedings, taking into release of the minor on recognizance to his or her
cognizance the obligation of the Philippines on parents and other suitable persons under Section 35 of
their international convention to uphold RA 9344.
human rights.
RA 9344
Section 3. No release or transfer except on court Section 24. Release of Children on Recognizance to
order or bail. – No person under detention by legal the Parents, Guardian, Custodian or Nearest
process shall be released or transferred except upon Relative — The release of a child from custody
order of the court or when he is admitted to bail. during the pendency of the case involving an offense
not punishable by death, reclusion perpetua or life
5) Recognizance (Rules of Court, Rule 114, imprisonment may be ordered by the court only
Sec 1) – an obligation of record entered into after a hearing for that purpose, and upon favorable
before some court or magistrate duly recommendation of the social worker assigned to
authorized to take it with a condition to do the child with due notice to the public prosecutor,
some particular act, the most usual condition the Sanggunian where the accused resides, and the
private complainant. The child shall be released to
in criminal cases being the appearance of the
the custody of a willing and responsible mother or
accused for trial. father, or appropriate guardian or custodian, or in
their absence, the nearest relative, who shall be
A simple personal obligation or undertaking responsible for the child's good behavior and
entered into before a court and having no appearance in court whenever required.
money penalty attached. It has the effect of
transferring the custody of the accused from No child shall be ordered detained in jail pending
the public officials who have him in their trial or hearing of the child's case.
charge to keepers of his own selection
Section 25. Commitment and transfer to a Bahay
Section 15. Recognizance. — Whenever allowed by Pag-asa. — A child charged with an offense, unless
law or these Rules, the court may release a person in released on bail or recognizance, may be transferred
custody to his own recognizance or that of a to a "Bahay Pag-asa" or rehabilitation center or other
responsible person. (15a) appropriate facility operated or accredited by the
Department of Social Welfare and Development,
which shall ensure the implementation of
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appropriate intervention programs, as well as the transmitted the original record to the appellate court.
safety and appearance of the child in court. However, if the decision of the trial court
convicting the accused changed the nature of
In the absence of a "Bahay Pag-asa" established by the offense from non-bailable to bailable, the
the local government pursuant to Section 8 of the application for bail can only be filed with and
Family Courts Act, and Republic Act No. 9344, as resolved by the appellate court.
amended, in the city or municipality where the child
resides, or a local rehabilitation center recognized by Should the court grant the application, the accused
the government in the province, city or municipality may be allowed to continue on provisional liberty
within the jurisdiction of the court, or the during the pendency of the appeal under the same
Department of Social Welfare and Development, or bail subject to the consent of the bondsman.
other appropriate local rehabilitation center,
detention pending trial may be replaced by If the penalty imposed by the trial court is
alternative measures such as close supervision, imprisonment exceeding six (6) years, the
intensive care or replacement with a family or in an accused shall be denied bail, or his bail shall be
educational setting or home. Institutionalization or cancelled upon a showing by the prosecution,
detention of a child pending trial should be used only with notice to the accused, of the following or
as a last resort and for the shortest possible time. other similar circumstances:
Section 26. Bail as a Matter of right. — For purposes (a) That he is a recidivist, quasi-recidivist, or
of bail, the privileged mitigating circumstance of habitual delinquent, or has committed the crime
minority shall be considered. aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal

In all cases the giving or posting of a bail bond by confinement, evaded sentence, or violated the
the accused is tantamount to the submission of his conditions of his bail without valid justification;
person to the jurisdiction of the Court.
(c) That he committed the offense while under
probation, parole, or conditional pardon;
Who may invoke?
1) Arrested (d) That the circumstances of his case indicate the
2) Detained probability of flight if released on bail; or
3) Deprived of their liberty whether or not an
information or a criminal complaint has been (e) That there is undue risk that he may commit
filed another crime during the pendency of the appeal.
GR: All those who are already in custody of law may The appellate court may, motu proprio or on
avail of the right to bail as a matter of right motion of any party, review the resolution of the
XPN: Those charged with offenses punishable with Regional Trial Court after notice to the adverse party
reclusion perpetua, when evidence of guilt is strong in either case. (5a)
Bail may either be: When is bail a matter of right?

1) A matter of right 1) Before or after conviction by the Metropolitan
2) A matter of discretion Trial Court, or first level courts, or while on
appeal.
A MATTER OF RIGHT OR DISCRETION 2) Before conviction by a Regional Trial Court
Section 4. Bail, a matter of right; exception. — All except if the offense charged is punishable by
persons in custody shall be admitted to bail as a reclusion perpetua, life imprisonment or death,
matter of right, with sufficient sureties, or released where the evidence of guilt is strong.
on recognize as prescribed by law or this Rule (a) 3) Before conviction by a Regional trial court for
before or after conviction by the Metropolitan death, life imprisonment or reclusion perpetua,
Trial Court, Municipal Trial Court, Municipal when the evidence of guilt is not strong.
Trial Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the Regional Remedy
Trial Court of an offense not punishable by
1) The remedy is a petition for certiorari under
death, reclusion perpetua, or life imprisonment.
(4a) Rule 65 because the court committed grave
abuse of discretion amounting to excess or lack
Section 5. Bail, when discretionary. — Upon of jurisdiction for issuing the denial of the bail
conviction by the Regional Trial Court of an when bail is a matter of right.
offense not punishable by death, reclusion 2) Mandamus may also at the same time be
perpetua, or life imprisonment, admission to bail availed to compel know the grant of bail, which
is discretionary. The application for bail may be is a matter of right When bail is a matter of
filed and acted upon by the trial court despite the right, the court is left with no discretion but to
filing of a notice of appeal, provided it has not grant the same.
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2007 petitioner went past security detail for some

Hearing is always required whether it's a matter of reason and proceeded from the courtroom to a posh
right or a matter of discretion. hotel to issue certain statements.
When is bail a matter of discretion? Moreover, circumstances indicating probability of

1) After conviction by the RTC, if the penalty flight find relevance as a factor in ascertaining the
imposed is 6 years or lower reasonable amount of bail and in canceling a
2) After conviction for an offense which is discretionary grant of bail.
punishable with six (6) years and one (1) day
to twenty (20) years, if the following Evidence of guilt
circumstances are not present: In cases involving non-bailable offenses, what is
a) The accused is a recidivist, quasi- controlling is the determination of whether the
recidivist or a habitual delinquent or has evidence of guilt is strong. Once it is established
committed the crime aggravated by the that it is so, bail shall be denied as it is neither a
circumstance of reiteracion. matter of right nor of discretion.
b) The accused is found to have previously
escaped from legal confinement, evaded Qui v. People
sentence or has violated the conditions of Under the present rule, the grant of bail is a matter
his bail without valid justification. of discretion upon conviction by the RTC of an
c) The accused committed the offense while offense not punishable by death, reclusion
on probation, parole or under conditional perpetua or life imprisonment, as here. The Court
pardon. held:
d) The circumstance of the accused or his case
indicate the probability of flight, if released Indeed, pursuant to the "tough on bail pending
on bail. appeal" policy, the presence of bail-negating
e) There is an undue risk that during the conditions mandates the denial or revocation of
pendency of the appeal, the accused may bail pending appeal such that those circumstances
commit another crime. are deemed to be as grave as conviction by the trial
court for an offense punishable by death, reclusion
Where to appeal bail? (Sec 5) perpetua or life imprisonment where bail is
1) When there is already a notice of appeal but the prohibited.
entire record of the case has not yet been
transmitted to the appellate court – RTC In the exercise of that discretion, the proper courts are
2) When there is already a notice of appeal and to be guided by the fundamental principle that the
the entire record has already been transmitted allowance of bail pending appeal should be exercised
to appellate court – CA not with laxity but with grave caution and only for
3) From non-bailable to bailable offense by virtue strong reasons, considering that the accused has
of judgment or conviction - CA been in fact convicted by the trial court.
People v. Sandiganbayan When is bail not allowed?

Even if the capital offense charged is bailable owing to 1) After final judgment by any court if the period
the weakness of the evidence of guilt, the right to bail to appeal the conviction has already lapsed,
may justifiably still be denied if the probability of (within 15 days from the final judgment of
escape is great. the court, and the accused did not appeal)
2) Before conviction by RTC for offenses
Valero v. CA punishable by reclusion perpetua, death or life
The trial court disregarded the glaring fact that the imprisonment when evidence of guilt is
evidence against her was strong because the killer strong.
himself has confessed to the crime and implicated 3) After conviction for offenses punishable by
Milagros as the mastermind. reclusion perpetua, death or life imprisonment
(capital offenses)
Enrile v. Pimentel Section 6. Capital offense defined. — A capital
Flight risk offense is an offense which, under the law
Petitioner goes on to allege that unlike Jalosjos who existing at the time of its commission and of
attempted to evade trial, he is not a flight risk since he the application for admission to bail, may be
voluntarily surrendered to the proper authorities and punished with death. (6a)
such can be proven by the numerous times he was
allowed to travel outside his place of detention. Section 7. Capital offense of an offense punishable
by reclusion perpetua or life imprisonment, not
Subsequent events reveal the contrary, however. The bailable. — No person charged with a capital
assailed Orders augured well when on November 29, offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be
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admitted to bail when evidence of guilt is c) Decide whether the evidence of guilt of the
strong, regardless of the stage of the criminal accused is strong based on the summary of
prosecution. (7a) evidence of the prosecution.
d) If the guilt of the accused is not strong,
4) After conviction for an offense punishable discharge the accused upon the approval of
with 6 years and 1 day to 20 years if the the bail bond, otherwise the petition should
circumstances that mentioned earlier is be denied.
present.
 He is a recidivist, quasi-recidivist or People v. De Gracia
habitual delinquent or has Bail may be granted if the evidence of guilt is not strong
committed a crime aggravated by A person, even if he is charged with a crime punishable
reiteracion. by reclusion perpetua, may still be granted bail as a
 He has escaped from confinement, matter of right when the evidence of guilt is not
evaded sentence or violated the strong.
conditions of his bail without valid
justification Necessarily, in all other instances, bail must be granted
 He committed the offense while under before the conviction of the accused. The right to bail
probation, parole or conditional flows from the presumption of innocence in favor
pardon of every accused who should not be subjected to
 The circumstances of the case indicate the loss of freedom as thereafter, he would be
the probability of flight if released on entitled to acquittal unless his guilt is proved
bail beyond reasonable doubt.
 There is undue risk that he may
Evident proof of guilt
commit another crime during the
Proof evident or evident proof, in this connection, has
pendency of appeal.
been held to make clear strong evidence which
leads a well-guarded dispassionate judge to the
5) Bail shall not be allowed after the accused has
conclusion that the offense has been committed as
commenced to serve the sentence.
charge that the accused is the guilty agent and that
he will probably be punished capitally if the law is
Test of great presumption of guilt
administered.
The court is ministerially bound to decide which
circumstances and factors are present, which would
show evidence of guilt or presumption of guilt. It does Enrile v. People
Issue: Whether or not the denial of Enrile’s motion to
not mean that proof of guilt is beyond reasonable
fix bail is tainted with grave abuse of discretion
doubt.
Ruling:
Leviste v. CA
Presumption of innocence and right to bail
The discretionary nature of the grant of bail pending
appeal does not mean that the bail should be The presumption of innocence is rooted in the
automatically granted absent of any of the guarantee of due process and is safeguarded by the
circumstances mentioned in the third constitutional right to be released on bail and further
paragraph of Section 5. Thus, a finding that none binds the court to wait until after the trial to impose
of the said circumstances is present will not any punishment on the accused.
automatically result in the grant of bail. Such a
finding absent of any of the circumstances will Discretion of trial court
simply authorize the court to use a less stringent The general rule is any person, before being convicted
sound discretion approach. of any criminal offense, shall be bailable unless he is
charged with a capital offense or with an offense
Narciso v. Sta Romana-Cruz punishable with reclusion perpetua or life imprisonment
The court enumerated the following duties of the and evidence of guilt is strong. Once it is established
trial judge in a petition for bail in the offenses as that the evidence of guilt is strong, no right to bail shall
mentioned: be recognized. The determination of whether or not
a) Notify the prosecutor of the hearing or the
evidence of guilt is strong in criminal cases
application for bail or require him to submit
involving capital offenses or offenses punishable
their recommendation;
b) Conduct a hearing of the application for bail with reclusion perpetua or life imprisonment lies
regardless of whether or not the prosecution with the discretion of the trial court.
refuses to present evidence to show that the
guilt of the accused is strong for the purpose Bail hearing
of enabling the court to exercise its sound The hearing is mandatory before bail can be granted to
discretion an accused who is charged with a capital offense.
Further, certain guidelines in the fixing of a bail bond
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call for the presentation of evidence and reasonable But the Supreme Court said that since we have not yet
opportunity for the prosecution to refute it. Among gone into the trial on the merits of the case, we should
them are the nature and circumstances of the crime, not yet venture into the imposable penalty of the
character and reputation of the accused, the weight of particular complex crime. Since the prescribed
the evidence against him, the probability of the accused penalty here is a minimum of reclusion temporal
appearing at the trial whether or not the accused is a in its maximum period to reclusion perpetua, this
fugitive from justice and whether or not the accused is is not the case which is punishable by reclusion
under bond and in any other cases. To determine the perpetua only.
evidence there must be a hearing conducted by the
court which may either be a summary hearing, or Therefore, since the interpretation that is more
it may be a full-blown hearing in the discretion of favorable to the accused is this one is a case where bail
the court. is a matter of right, then the Supreme Court, for the
purposes of bail application, an accused charge with
Bail applications are tried in the RTC
the complex crime of malversation of public
In resolving bail applications of the accused who is
documents through falsification of official or public
charged with the capital offence or an offence
documents that involve that amount in excess of
punishable by reclusion perpetua or life imprisonment, the
22,000 is entitled to file bail as a matter of right. A
trial judge is expected to comply with the following
summary hearing on bail application is therefore
guidelines:
unnecessary since bail should be granted as a
matter of right.
1) In all cases, whether bail is a matter of right or
of discretion, notify the prosecutor of the
People v. Piad
hearing of the application for bail or require
The Supreme Court held that an accused which
him to submit his recommendation.
jumps bail cannot be granted bail after conviction
2) Where bail is a matter of discretion, conduct a
even if he appeals the conviction because under
hearing of the application for bail regardless
Section 5(b) of Rule 114 on the matter of bail, bail
of whether or not the prosecution refuses to
cannot be granted to a person who has previously
present evidence to show that the guilt of the
escaped from legal confinement, evaded sentence
accused is strong for the purpose of enabling
or violated the conditions of his bail without valid
the court to exercise it sound discretion.
justification.
3) Decide whether the guilt of the accused is
strong based on the summary of evidence
People v. Escobar
of the prosecution.
The Supreme Court said that the concept of or
4) The guilt of the accused is not strong, discharge
principle or doctrine of res judicata or matter or
accused upon the approval of the bail bond
judge is not applicable to bail proceedings. Res
otherwise, petition should be denied.
judicata is a civil law concept and is not applicable to
criminal cases. Res judicata settles with finality the
The Court cited Enrile’s poor health and the presence
dispute between the parties or their successors-in-
of the averment by Enrile and his motion to fix a bail
interest in civil cases and this principle in civil law has
of the presence of two mitigating circumstances: 1) that
no bearing in criminal proceedings.
he is already over 70 years and 2.) that he voluntarily
surrendered.
The Supreme Court then said that in their view, the Is bail applicable to all court proceedings?
social and political standing of Enrile and his having GR: Bail is only available in criminal proceedings
immediately surrendered to the authorities upon being
charged in Court indicate that the risk of his flight or Bail is not available in the following instances
escape from his jurisdiction is highly unlikely. His 1) Deportation or extradition proceedings
personal disposition from the onset of his indictment  Extradition proceedings are not
for plunder formal or otherwise has demonstrated his criminal in nature
utter respect for the legal processes of the Philippines.  It is a public international law concept
2) When there is already waiver of the right
People v. Valdez 3) The right to bail is traditionally not recognized
In this case, the crime is complex crime of malversation and is not available in the military, as an
of public funds through falsification of official or exception to the general rule embodied in the
public documents. This case is punishable by reclusion Bill of Rights.
temporal in its maximum period to reclusion perpetua. XPN: the military is involved in a criminal
Since it is a complex crime, the Ombudsman argues action
that it is the maximum of the prescribed penalty which  The right to a speedy trial is given
is reclusion perpetua should be considered and therefore more emphasis in a military setting but
bail is not a matter of right. the right to bail does not exist.
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 Military personnel are a class on their extradited. The ultimate purpose of extradition
own, they are not the same as civilians proceedings in court is only to determine whether
the extradition request complies with the
Comendador v. De Villa extradition treaty applicable, and whether the
Right to bail of military personnel person sought is extraditable.
The right to bail shall not be granted to military
personnel charge before the military courts for Exception
violations of the articles of the military. They do not Accordingly and to best serve the ends of justice, we
enjoy the right to bail due to the nature of the charges believe and so hold that, after a potential extraditee has
against them. If they will be charged in the ordinary been arrested or placed under the custody of the law,
courts however for ordinary crimes or offenses, then, bail may be applied for and granted as an exception,
the right to bail is available to them. only upon a clear and convincing showing (1) that,
once granted bail, the applicant will not be a flight
Aswat v. Galido risk or a danger to the community; and (2) that
Right to bail of military personnel there exist special, humanitarian and compelling
When a person, which is part of the military is subject circumstances including, as a matter of
to military law under the articles of war (Article 70) reciprocity, those cited by the highest court in the
“Any person subject to military law charged with a requesting state when it grants provisional liberty in
crime or with serious offense under this article, shall be extradition cases therein.
placed in confinement or in arrest as circumstances
may require.” The confinement of military personnel xxx First, we note that the exercise of the State’s power
in cases under the general court martial, is one way of to deprive an individual of his liberty is not necessarily
ensuring the presence during the sessions of the limited to criminal proceedings. Respondents in
general court martial. The more important reason administrative proceedings, such as deportation
underlying the authority to impose confinement, is the and quarantine, have likewise been detained.
need to enable the proper military authority to Second, to limit bail to criminal proceedings would
instill discipline, with a command and thereby be to close our eyes to our jurisprudential history.
achieve command efficiency. By confining the
military personnel, the military may effectively curtail Government of Hong Kong Special
the spreading within the ranks of the military the un- Administrative Region v. Olalia Jr.
military conduct of the military personnel charged In a subsequent ruling in the case of Government of Hong
under the general court martial. The release from Kong Special Administrative Region vs. Olalia Jr. somehow
confinement of a person subject to military law facing abandoned the ruling in the case of Purganan. The
charges before a general court martial is a matter that Supreme Court ruled that following the trends in
lies largely in the discretion of the military international law;
authorities who are in a better position to 5) The growing importance of the individual
appreciate the gravity of the said charges and the person in public international law, who, in
advisability of releasing him pending trial and the 20th century has gradually attained global
disposition of the case filed against him. recognition.
6) The higher value now being given to
The Government of the United States of human rights in the international sphere.
America v. Purganan 7) The corresponding duty of the countries to
Extradition proceedings
observe this universal human rights in
The Supreme Court held that the constitutional fulfilling their treaty obligation. And;
provision on bail does not apply to extradition 8) The duty of the Supreme Court to balance the
proceedings. It is available only in criminal rights of the individual under our
proceedings. fundamental law on one hand, in the law on
extradition on the other.
In extradition proceedings, prospective extraditees are
generally not entitled to notice and hearing before Extradition proceeding being sui generis
warrants for their arrest can be issued. Neither are The standard of proof required in granting or denying
they entitled to the right to bail and provisional bail can neither be the proof beyond reasonable
liberty while the extradition proceedings are doubt in criminal cases nor the standard of proof
pending. of preponderance of evidence in civil cases. While
The policy is that a prospective extraditee is arrested administrative in character, the standard of substantial
and detained, to avoid his flight from justice. On the evidence used in administrative cases cannot
extraditee lies the burden of showing that he will not likewise apply given the object of extradition law
flee once bail is granted. which is to prevent the prospective extraditee from
fleeing our jurisdiction. In his Separate Opinion in
The extradition court is that called upon to ascertain Purganan, then Associate Justice, now Chief Justice
the guilt or the innocence of the person sought to be Reynato S. Puno, proposed that a new standard which
82

he termed "clear and convincing evidence" should latter is dead, outside the Philippines, or
be used in granting bail in extradition cases. According otherwise unable to testify. (8a)
to him, this standard should be lower than proof
beyond reasonable doubt but higher than HEARING
preponderance of evidence. The potential extraditee GR: Evidence that has been presented during bail
must prove by "clear and convincing evidence" that hearing shall be considered automatically reproduced
he is not a flight risk and will abide with all the at the trial
orders and processes of the extradition court. XPN: Possible recall of witnesses for additional
examination
Bail hearings are mandatory XPN of XPN: The witness is dead, outside the
Bail hearing is necessary even if the prosecution does Philippines or otherwise unable to testify.
not interpose any objection or leaves the application
for bail to the sound discretion of the court. A hearing Where there is no necessity to determine whether the
is required in order for the court to ascertain the guilt of the accused is strong or not, the judge is still
adequacy of the amount of bail under the guidelines set mandated to:
forth in section 9 rule 114 of the rules of criminal 1) Conduct a hearing in cases where the
procedure. prosecution chooses to just file a comment; or
2) Leave the application for bail to the discretion
Further, failure to conduct a hearing when of the court; or
required before fixing bail will violate due process 3) If the prosecution refuses to adduce evidence
and disregard of the established rule of law by in opposition to the application, to grant and
depriving the prosecution of the opportunity to fix bail; or
prove that the evidence of guilt against the 4) The prosecution has interposed no objection
accused is strong and will constitute gross to the grant of bail of the accused.
ignorance of the law or incompetence which will
subject the judge to disciplinary action. Ignorance There is no necessity to determine whether the
of this type, cannot be excused by a claim of good faith guilt of the accused is strong or not when:
or excusable negligence. Thus, it is still mandatory for 1) The prosecution chooses to just file a
the court to conduct a hearing and ask searching and comment;
clarificatory questions for the purpose of determining 2) Leave the application for bail to the discretion
the existence of strong evidence against the accused of the court;
although the prosecution interposed no objection to 3) If the prosecution refuses to adduce evidence
the grant of bail or refuse to adduce evidence that the in opposition to the application to grant and fix
guilt of the accused was strong. bail;
4) The prosecution posts no objection to the
AS A MATTER OF DISCRETION – Hearing is grant of bail to the accused.
mandatory
AS A MATTER OF RIGHT – Not mandatory, Hearing
essential only in determining the amount of bail. As a matter of right As a matter of
discretion
PROHIBITION AGAINST EXCESSIVE BAIL 1. Determine whether or To determine whether
The Constitution ordains that excessive bail shall not not there is a reduction the guilt is strong
be required, and this is a restriction on both or increase in the
1) the courts and amount of bail. 2.
2) the Congress Determine the
conditions pertinent to
What amount is a reasonable bail rest mainly upon the the grant of bail if ever
it is granted.
discretion of the judge. He has to take into account the
the prosecution does not the prosecution has the
following in deciding the matter:
have the right to present right to present evidence
evidence for the denial for the denial of bail
BURDEN OF PROOF of bail
Section 8. Burden of proof in bail application. — At the At the hearing of an application for bail filed by a
hearing of an application for bail filed by a person person who is in custody for the commission of an
who is in custody for the commission of an offense offense punishable by death, reclusion perpetua, or
punishable by death, reclusion perpetua, or life life imprisonment, the prosecution has the burden
imprisonment, the prosecution has the burden of of showing that evidence of guilt is strong.
showing that evidence of guilt is strong. The
evidence presented during the bail hearing shall be GUIDELINES FOR AMOUNT OF BAIL
considered automatically reproduced at the trial,
Section 9. Amount of bail; guidelines. — The judge
but upon motion of either party, the court may recall
who issued the warrant or granted the application
any witness for additional examination unless the
83

shall fix a reasonable amount of bail considering

primarily, but not limited to, the following factors: There is no necessity to determine whether the
guilt of the accused is strong or not when:
(a) Financial ability of the accused to give bail; 5) The prosecution chooses to just file a
(b) Nature and circumstances of the offense; comment;
(c) Penalty for the offense charged; 6) Leave the application for bail to the discretion
(d) Character and reputation of the accused; of the court;
(e) Age and health of the accused;
7) If the prosecution refuses to adduce evidence
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the in opposition to the application to grant and fix
trial; bail;
(h) Forfeiture of other bail; 8) The prosecution posts no objection to the
(i) The fact that accused was a fugitive from justice grant of bail to the accused.
when arrested; and
(j) Pendency of other cases where the accused is REQUIREMENT OF BAIL
on bail. Section 16. Bail, when not required; reduced bail or
recognizance. — No bail shall be required when the law
Excessive bail shall not be required. (9a) or these Rules so provide.
The amount fixed should be sufficient to ensure the When a person has been in custody for a period
presence of the accused at a trial yet reasonable enough equal to or more than the possible maximum
to comply with a constitutional provision that bail imprisonment prescribe for the offense charged,
should not be excessive. he shall be released immediately, without
prejudice to the continuation of the trial or the
Lardizabal v. Reyes proceedings on appeal. If the maximum penalty to
which the accused may be sentenced is destierro, he
When an accused is charged with a serious offense
shall be released after thirty (30) days of
punishable with reclusion perpetua, such as rape, bail preventive imprisonment.
may be granted only after a motion for that purpose
has been filed by the accused in a hearing thereon A person in custody for a period equal to or more
conducted by the judge to determine whether the than the minimum of the principal penalty
prosecution's evidence guilt is strong. prescribed for the offense charged, without
application of the Indeterminate Sentence Law
WAIVER or any modifying circumstance, shall be released
People v. Panes on a reduced bail or on his own recognizance, at
Such negligence, in not calling out that the court has the discretion of the court. (16a)
not yet acted upon, is already a waiver of the right
of the accused to ask for bail. Failure to bring to the Q: When is bail not required?
attention of the trial court at the earliest opportune A:
time that the court has not resolved the application for 1) GR: When a person has been in custody for a
a bail is already a waiver of their right to bail. period equal to or more than the possible
maximum imprisonment prescribe for the
BURDEN OF PROOF offense charged – RELEASED
Section 8. Burden of proof in bail application. — At the IMMEDIATELY
hearing of an application for bail filed by a person XPN:
who is in custody for the commission of an offense  If the maximum penalty to which
punishable by death, reclusion perpetua, or life the accused may be sentenced is
imprisonment, the prosecution has the burden of destierro, he shall be released
showing that evidence of guilt is strong. The AFTER 30 DAYS OF
evidence presented during the bail hearing shall be PREVENTIVE
considered automatically reproduced at the trial, IMPRISONMENT
but upon motion of either party, the court may recall  A person in custody for a period
any witness for additional examination unless the equal to or more than the
latter is dead, outside the Philippines, or otherwise
minimum of the principal penalty
unable to testify. (8a)
prescribed for the offense charged,
without application of the
HEARING
Indeterminate Sentence Law or any
 GR: Evidence that has been presented during
modifying circumstance –
bail hearing shall be considered automatically
RELEASED ON A REDUCED
reproduced at the trial
BAIL OR RECOGNIZANCE
 XPN: Possible recall of witnesses for
2) Violation of municipal or city ordinance, a
additional examination
light felony or criminal offense that
 XPN of XPN: The witness is dead, outside
prescribe penalty which is higher than six
the Philippines or otherwise unable to testify.
84

(6) months imprisonment and/or a fine of Procedure where the municipal trial judge
2000 pesos, or both, where said person has satisfied that there is no necessity for placing
established to the satisfaction of the Court or the accused under custody. In which case,
any other appropriate authority hearing his case the judge may issue summons instead of
that he is unable to post required cash or bail warrant of arrest
bond, except when:
a) When he was caught committing the RULES ON WHERE TO APPLY
offense in flagrante delicto; Section 17. Bail, where filed. — (a) Bail in the amount
b) When he confesses to the fixed may be filed with the court where the case
commission of the offense unless the is pending, or in the absence or unavailability of
confession is later repudiated by him the judge thereof, with any regional trial judge,
in a sworn statement, or in open Court metropolitan trial judge, municipal trial judge,
as having been extracted through force or municipal circuit trial judge in the province,
or intimidation; city, or municipality. If the accused is arrested in
a province, city, or municipality other than
c) When he is found to be previously
where the case is pending, bail may also be filed
escaped from legal confinement, with any regional trial court of said place, or if no
evaded sentence, or jumped bail; judge thereof is available, with any metropolitan
d) When he is found to have previously trial judge, municipal trial judge, or municipal
violated the provisions of Section 2 circuit trial judge therein.
Republic Act 6036, otherwise known
as An Act Providing that Bail shall not, (b) Where the grant of bail is a matter of discretion,
with certain exceptions, be required in or the accused seeks to be released on
cases of Violations of Municipal or recognizance, the application may only be filed in
City Ordinances, and in Criminal the court where the case is pending, whether on
Offenses when the Prescribed Penalty preliminary investigation, trial, or on appeal.
for such Offenses is not higher than
(c) Any person in custody who is not yet charged
Arresto Mayor and/or a fine of 2000
in court may apply for bail with any court in the
pesos, or both;
province, city, or municipality where he is held. (17a)
e) Habitual delinquency, recidivism,
reiteracion Rules on where to apply bail
f) When he commits the offenses while 1) When judge is present, filed with the
on parole or under conditional pardon court where the case is pending
and when the accused has previously 2) In the absence or unavailability of the
been re-pardoned by the municipal or judge thereof, with any regional trial
city mayor for violation of municipal judge, metropolitan trial judge,
or city ordinances for at least two (2) municipal trial judge, or municipal
times. circuit trial judge in the province,
3) Criminal Cases falling under the Revised Rule city, or municipality.
on Summary Procedure: 3) If bail is a matter of discretion -
 Violation of Traffic Laws, Rules, and application may only be filed in the
Regulations court where the case is pending,
 Violation of Rental Law whether on preliminary
 Violations of Municipal or City investigation, trial, or on appeal
Ordinances 4) Any person in custody who is not yet
 Violation of Batas Pambansa Bilang 22; charged in court may apply for bail
the bouncing checks law with any court where he is held
 And all other criminal cases where the 5) The application for bail may be filed
penalty prescribed by law for the and acted upon by the trial Court even
offense charged is imprisonment not if the notice of an appeal has already
exceeding six (6) months or a fine not been filed provided that the Trial Court
exceeding 1000 pesos, or both; has not yet transmitted the original
provided that in offenses involved be record of the Appellate Court under
damage to property, to criminal Section 5 of Rule 114.
negligence, this Rule shall govern 6) Corollarily, if the original record has
where the imposable fine does not already been transmitted to the
exceed 10,000 pesos. Appellate Court, then the application
XPN: When the accused failed to shall be filed with the said Appellate
appear when required, the bail bond becomes Court.
required
4) In cases not requiring preliminary investigation NOTICE OF APPLICATION TO PROSECUTOR
nor covered by the Revised Rule on Summary
85

Section 18. Notice of application to prosecutor. — In the

application for bail under section 8 of this Rule, the (b) explain why the accused did not appear
court must give reasonable notice of the hearing before the court when first required to do so.
to the prosecutor or require him to submit his
recommendation. (18a) Failing in these two requisites, a judgment shall be
rendered against the bondsmen, jointly and
For this purpose, the judge must not disregard the severally, for the amount of the bail. The court shall
mandatory (3) three – day notice under Section 4, not reduce or otherwise mitigate the liability of the
Rule 15 of the Rules of Court which requires that the bondsmen, unless the accused has been surrendered
notice of a motion must be served on all parties at least or is acquitted. (21a)
3 days in advance of the hearing.
When the accused fails to appear:
Even if there is yet to be a motion filed in Court, notice 1) The bond may be forfeited
of the application of bail to the prosecution is required  Provisional judgment subject to the
although no bail yet is filed in Court and even though bondsmen to produce the body of the
the circumstance bail is a matter of right. accused, explain satisfactorily why he
cannot produce the accused
The non – compliance to the above requirement  If the bondsman successfully produced
constitutes ignorance or incompetence which cannot the body of the accused, he is absolved
be excused by any protestation on good faith from liability
2) The judge may order a bench warrant
RELEASE
Section 19. Release on bail. — The accused must be Relief from liability of the surety
discharged upon approval of the bail by the judge 1) Act of God
with whom it was filed in accordance with section 17  Within the first category is the case of
of this Rule. a principal who dies before the day of
the performance, but the death of the
Whenever bail is filed with a court other than where principal in such an undertaking after
the case is pending, the judge who accepted the the judgment has been obtained
bail shall forward it, together with the order of thereon because of the non-appearance
release and other supporting papers, to the court of the accused does not release the
where the case is pending, which may, for good sureties from their obligation
reason, require a different one to be filed. (19a)
 If the death of the accused is explained
within the 30-day period, then the
INCREASE OR DECREASE
court will not be justified in forfeiting
Section 20. Increase or reduction of bail. — After the
the bail.
accused is admitted to bail, the court may, upon
good cause, either increase or reduce its 2) Act of obligee or government
amount. When increased, the accused may be 3) Act of law
committed to custody if he does not give bail in the  section 21, the forfeiture of the bond is
increased amount within a reasonable period. An not mandatory, it is discretionary upon
accused held to answer a criminal charge, who is the court
released without bail upon filing of the complaint or  The judgment rendered against a bond
information, may, at any subsequent stage of the may also be appealed by the bondsman.
proceedings and whenever a strong showing of guilt The appeal must be perfected within
appears to the court, be required to give bail in the the unextendible 15 days following
amount fixed, or in lieu thereof, committed to the date upon which the sureties
custody. (20a) receive notification of the order
directing the execution of the judgment
FORFEITURE
of the forfeiture of the bond previously
Section 21. Forfeiture of bond. — When the presence entered.
of the accused is required by the court or these
Rules, his bondsmen shall be notified to produce
him before the court on a given date and time. Effect of acquittal or dismissal
If the accused fails to appear in person as required, Where the dismissal took place long after the 30-day
his bail shall be declared forfeited and the period has elapsed, the fact that the criminal
bondsmen given thirty (30) days within which to prosecution is finally dismissed on the motion of a
produce their principal and to show cause why no fiscal does not relieved the bondsman of an accused
judgment should be rendered against them for the from the effects of a previous forfeiture of the bond
amount of their bail. Within the said period, the consequent upon non-appearance of the accused at
bondsmen must: that time originally set for hearing.
(a) produce the body of their principal or give the But where the order of acquittal was promulgated five
reason for his non-production; and days before the expiration of the 30-day period, the
86

bondsmen was relieved of its duty to produce the body order the segregation of sexes and of minors from
of the accused and to show cause why no judgment adults, ensure the observance of the right of
should be rendered against it for the amount of the detainees to confer privately with counsel, and strive
bond. to eliminate conditions inimical to the detainees.
CANCELLATION In cities and municipalities to be specified by the

Supreme Court, the municipal trial judges or
Section 22. Cancellation of bail. — Upon application
municipal circuit trial judges shall conduct monthly
of the bondsmen, with due notice to the
personal inspections of the municipal jails in their
prosecutor, the bail may be cancelled upon
respective municipalities and submit a report to the
surrender of the accused or proof of his death.
executive judge of the Regional Trial Court having
jurisdiction therein.
The bail shall be deemed automatically cancelled
upon acquittal of the accused, dismissal of the
A monthly report of such visitation shall be
case, or execution of the judgment of
submitted by the executive judges to the Court
conviction.
Administrator which shall state the total number of
detainees, the names of those held for more than
In all instances, the cancellation shall be without
thirty (30) days, the duration of detention, the crime
prejudice to any liability on the bond. (22a)
charged, the status of the case, the cause for
 Incumbent on the bondsmen to petition the
detention, and other pertinent information. (25a)
court for the cancellation
 If deemed automatically cancelled, no BAIL NOT A BAR
petition is required (in cases of acquittal, Section 26. Bail not a bar to objections on illegal arrest,
dismissal, execution of judgment) lack of or irregular preliminary investigation. — An
 Property bond if there is failure to cause the application for or admission to bail shall not bar the
annotation of the lien accused from challenging the validity of his arrest
or the legality of the warrant issued therefor, or
RE-ARREST from assailing the regularity or questioning the
Section 23. Arrest of accused out on bail. — For the absence of a preliminary investigation of the
purpose of surrendering the accused, the charge against him, provided that he raises them
bondsmen may arrest him or, upon written before entering his plea. The court shall resolve the
authority endorsed on a certified copy of the matter as early as practicable but not later than the
undertaking, cause him to be arrested by a start of the trial of the case. (n)
police officer or any other person of suitable age  These must be raised before he enters
and discretion. his pleas
 Not deemed a waiver
An accused released on bail may be re-arrested  The mere application for bail
without the necessity of a warrant if he attempts to constitutes a waiver of the defense of
depart from the Philippines without permission of lack of jurisdiction over the person
the court where the case is pending. (23a)
of the accused. This is because upon
application for bail, affirmative relief
NO BAIL AFTER FINAL JUDGMENT
is sought, thus, one is considered to
Section 24. No bail after final judgment; exception. — No
have voluntarily appeared before
bail shall be allowed after the judgment of conviction
has become final. If before such finality, the accused the court
has applies for probation, he may be allowed
temporary liberty under his bail. When no bail Section 26 abandons the previous rulings of the
was filed or the accused is incapable of filing Supreme Court, that the filing of a bail is deemed a
one, the court may allow his release on waiver of this instances on the irregularity of the
recognizance to the custody of a responsible issuance of the warrant of arrest, or challenging the lack
member of the community. In no case shall bail of preliminary investigation.
be allowed after the accused has commenced to
serve sentence. (24a) 1) the invalidity of the arrest,
2) the illegality of the issuance of the warrant of
COURT SUPERVISION OF DETAINEES arrest or
Section 25. Court supervision of detainees. — The court 3) the irregularity or absence of a preliminary
shall exercise supervision over all persons in custody investigation
for the purpose of eliminating unnecessary
detention. The executive judges of the Regional Trial
Court cannot require arraignment before the grant of
Courts shall conduct monthly personal inspections
bail
of provincial, city, and municipal jails and their
prisoners within their respective jurisdictions. They It was held that the grant of bail should not be
shall ascertain the number of detainees, inquire on conditioned upon the prior arraignment of the
their proper accommodation and health and accused. In cases where bail is authorized, bail
examine the condition of the jail facilities. They shall should be granted before arraignment otherwise the
87

accused would be precluded from filing a motion to not require prior custody of the law. The witness may
quash, which is to be done before arraignment. If the be ordered to post bail even if he is not under
information is quashed and the case is dismissed, detention. It is only when he refuses to post bail, shall
there would be no need for the arraignment of the he be committed to prison.
accused.
In case where the court requires bail for the presence
The court explained the condition the grant of bail of witnesses, there is no need that they be under the
on his arraignment would be to place him in a
custody of the law first. However, if they fail to post
position where he has to choose between:
bail, they can be ordered arrested.
1) filing of a motion to quash and thus, delay
his release until his motion can be resolved RULE 110, Section 14. Amendment or substitution.
because prior to its resolution, he cannot be — A complaint or information may be amended, in
arraigned; or form or in substance, without leave of court, at any
2) foregoing the filing of a motion to quash so time before the accused enters his plea. After the
that he can be arraigned at once and plea and during the trial, a formal amendment may
thereafter be released on bail. only be made with leave of court and when it can be
done without causing prejudice to the rights of the
These scenarios undermine the accused’s accused.
constitutional right not to be put on trial except
upon a valid complaint or information sufficient to However, any amendment before plea, which
charge him with a crime and his right to bail. downgrades the nature of the offense charged in or
(Levides v. CA) excludes any accused from the complaint or
information, can be made only upon motion by the
Concept of a bench warrant prosecutor, with notice to the offended party and
A bench warrant is defined as a writ issued directly with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall
by a judge to a law enforcement officer for the
be furnished all parties, especially the offended party.
arrest of a person who has been held in contempt, has (n)
1) disobeyed a subpoena or
2) who has to appear at the hearing or trial. If it appears at any time before judgment that a
mistake has been made in charging the proper
The provisions on bench warrant is found under offense, the court shall dismiss the original
Section 9 of Rule 71 of the Rules of Court. complaint or information upon the filing of a new
one charging the proper offense in accordance with
RULE 71, Section 9. Proceeding when party released section 19, Rule 119, provided the accused shall not
on bail fails to answer. — When a respondent be placed in double jeopardy. The court may require
released on bail fails to appear on the day fixed for the witnesses to give bail for their appearance at the
the hearing, the court may issue another order of trial.
arrest or may order the bond for his appearance to
be forfeited and confiscated, or both; and, if the RULE 115
bond be proceeded against, the measure of damages RIGHTS OF ACCUSED
shall be the extent of the loss or injury sustained by
the aggrieved party by reason of the misconduct for Section 1. Rights of accused at the trial. — In all criminal
which the contempt charge was prosecuted, with the prosecutions, the accused shall be entitled to the
costs of the proceedings, and such recovery shall be following rights:
for the benefit of the party injured. If there is no a) To be presumed innocent until the
aggrieved party, the bond shall be liable and contrary is proved beyond
disposed of as in criminal cases. reasonable doubt.
b) To be informed of the nature and
RULE 119, Section 14. Bail to secure appearance of cause of the accusation against him.
material witness. — When the court is satisfied, upon c) To be present and defend in person
proof or oath, that a material witness will not testify and by counsel at every stage of the
when required, it may, upon motion of either party, proceedings, from arraignment to
order the witness to post bail in such sum as may be promulgation of the judgment. The
deemed proper. Upon refusal to post bail, the court accused may, however, waive his
shall commit him to prison until he complies or is presence at the trial pursuant to the
legally discharged after his testimony has been taken. stipulations set forth in his bail,
unless his presence is specifically
So, under Section 14 of Rule 119, bail does not only ordered by the court for purposes of
apply to a person who has transgressed the law or is identification. The absence of the
perceived to have done so, it may likewise apply to a accused without justifiable cause at
material witness. Also, while the rule is that bail does the trial of which he had notice shall
be considered a waiver of his right
not apply to a person who is not in custody of the law,
to be present thereat. When an
bail to secure the appearance of a material witness does
accused under custody escapes, he
88

shall be deemed to have waived his XPN: reverse trial order

right to be present on all subsequent
trial dates until custody over him is The presumption of innocence of the accused is a very
regained. Upon motion, the accused high presumption. For example, it cannot be overcome
may be allowed to defend himself in by just simply stating that the duty of the law
person when it sufficiently appears enforcement officers have been regularly performed.
to the court that he can properly the burden of proof of the prosecution is to prove that
protect his right without the
the crime was committed by the accused, and that his
assistance of counsel.
d) To testify as a witness in his own guilt is beyond reasonable doubt.
behalf but subject to cross-
examination on matters covered by The one prosecuting the crime, as the plaintiff to prove
direct examination. His silence shall beyond reasonable doubt, not only each element of the
not in any manner prejudice him. crime, and also the circumstances if it is mentioned in
e) To be exempt from being the information, also the identity of the accused as the
compelled to be a witness against criminal.
himself.
f) To confront and cross-examine the Proof beyond reasonable doubt - does not mean such
witnesses against him at the trial. a degree of proof, as excluding the possibility of error,
Either party may utilize as part of its produces absolute certainty. Moral certainty only is
evidence the testimony of a witness
what is required or that degree of proof which
who is deceased, out of or cannot
produces conviction in an unprejudiced mind. It is not
with due diligence be found in the
Philippines, unavailable or absolute certainty, only moral certainty that
otherwise unable to testify, given in produces conviction in an unprejudiced mind.
another case or proceeding, judicial
or administrative, involving the Equipoise rule
same parties and subject matter, the Where the evidence in a criminal case is evenly
adverse party having the balanced, the Constitutional presumption of innocence
opportunity to cross-examine him. tilts the scales in favor of the accused (People v.
g) To have compulsory process issued Erguiza)
to secure the attendance of
witnesses and production of other The application of the rule is triggered by a situation
evidence in his behalf. (h) To have where the court is faced with conflicting versions of
speedy, impartial and public trial. (i)
the prosecution and the defense and where the
To appeal in all cases allowed and in
the manner prescribed by law. evidence, facts and circumstances are capable of two
or more explanation.
Article III, 1987 Constitution 1) One of which is consistent with the innocence
Section 14. of the accused and
1) No person shall be held to answer for a 2) the other consistent with the guilt.
criminal offense without due process of law
2) In all criminal prosecutions, the accused The situation cannot fulfill the test of moral certainty,
shall be presumed innocent until the and is not sufficient to support a conviction.
contrary is proved, and shall enjoy the right
to be heard by himself and counsel, to be Right to be informed of the nature and cause of
informed of the nature and cause of the accusation
accusation against him, to have a speedy, 1) arrested
impartial, and public trial, to meet the 2) detained
witnesses face to face, and to have 3) under custodial investigation
compulsory process to secure the attendance 4) preliminary investigation
of witnesses and the production of evidence
in his behalf. However, after arraignment,
trial may proceed notwithstanding the in the information or the complaint, it must be in an
absence of the accused provided that he has ordinary and concise language, not necessarily the
been duly notified and his failure to appear language use in the statute, but in terms sufficient to
is unjustifiable. enable a person of common understanding to know
what offense is being charged, and the attending
Right to presumption of innocence qualifying and aggravating circumstance present so that
The presumption of innocence is also applicable to the accused can properly defend himself and the court
persons arrested, detained, or under custodial can pronounce judgment.
investigation.
Purpose of the right:
It is the prosecution that is required to present its
evidence ahead of the defense.
89

1) To furnish the accused with such description RULE 114, Section 2(c). Conditions of the bail;
of the charges against him as will enable him to requirements. – The failure of the accused to appear
make his defense; at the trial without justification and despite due
2) To avail himself of his conviction or acquittal notice shall be deemed a waiver of his right to be
for the protection against a further prosecution present thereat. In such a case, the trial may proceed
for the same cause, to know know whether the in absentia
double jeopardy has already set in;
3) To inform the court of the facts alleged so that Another situation in Section 1(c) of Rule 115 is when
it may decide whether they are sufficient in law the accused under custody escapes, he shall be deemed
to support a conviction, if one should be had to have waived his right to be present on all subsequent
trial dates until custody over him is regained.
Effect of failure to state the elements of the crime
charged Upon motion, the accused may be allowed to defend
May file a motion to quash the information, without himself in person when it sufficiently appears to the
prejudice to refiling court that he can properly protect his rights without
the assistance of counsel.
Effect when aggravating, qualifying circumstances are
not alleged in the complaint or information. One This is one instance where the accused, one who is not
cannot convict or find an accused guilty of a crime, an attorney, is allowed by the court to defend himself
which is higher than what is only alleged in the in person, but it should sufficient sufficiently appear to
complaint or information. the court that he can properly protect his rights without
the assistance of counsel.
An accused cannot be convicted of a higher offense
than that with which he was charged in the complaint SUMMARY
or information and on which he was tried (Canceran 1) The accused has the right to be present in all
v. People) the dates of his hearing and his trial. There
are specific instances such as arraignment and
The Supreme Court explained that the only plea during trial whenever necessary for his
difference between ephedrine and identification and the promulgation of his
methamphetamine is the presence of a single atom sentence
of oxygen in the former. The removal of the oxygen 2) When the court directs him to be present such
in the ephedrine will produce methamphetamine. if he does not appear, he waives his right to be
With ephedrine containing 50% of present during that time; but the court has the
methamphetamine hydrochloride, if the oxygen right to go on with the proceedings in absentia. Now,
content in the former is removed then nearly half of he only waives his right to be present at that
the amount that was seized in the seized ephedrine hearing.
contains 340 methamphetamine hydrochloride. In
3) where the accused escaped from custody of
other words, his right to be informed of the
law. The effect is that he loses his right to be
charges against him has not been violated
because when an accused is charged with a present in all the subsequent trials until the
specific crime, he is duly informed not only of custody over him is regained by the court
such specific crime, but also of lesser crimes or
offenses included therein. (People v. Noque) RULE 116
ARRAIGNMENT AND PLEA
Right to be present and defend in person and by
counsel at every stage of the proceedings from Section 1. Arraignment and plea; how made. —
arraignment to promulgation of the judgment. xxx
(e) When the accused is under preventive
1) Arrested detention, his case shall be raffled and its records
transmitted to the judge to whom the case was
2) Detained
raffled within three (3) days from the filing of the
3) Custodial investigation
information or complaint. The accused shall be
4) Arraignment arraigned within ten (10) days from the date of the
5) Promulgation of the judgment raffle. The pre-trial conference of his case shall be
held within ten (10) days after arraignment. (n)
If the court directs that the presence of the accused is
imperative or that the accused must be present during (g) Unless a shorter period is provided by special law
a hearing date and then he is duly notified of the date or Supreme Court circular, the arraignment shall be
and the time of the hearing, but without justifiable held within thirty (30) days from the date the court
cause he does not appear. So long as this is already after acquires jurisdiction over the person of the accused.
the arraignment his absence after due notice shall be The time of the pendency of a motion to quash
considered a waiver of his right to be present thereat. or for a bill of particulars or other causes
justifying suspension of the arraignment shall
90

be excluded in computing the period. (sec. 2, cir. Rule 116 AM No 15-06-10 SC

38-98) Separate arraignment Merged arraignment and
and pre-trial for a pre-trial for a detained
Rules of Procedure detained accused accused
10 days 10 calendar days
(including the weekends)
Within 30 days (plea and pre-trial are on same day)
REVISED GUIDELINES ON CONTINUOS
TRIAL OF CRIMINAL CASES MOTIONS
III. Procedure Motions allowed
Arraignment and Pre-trial
a) Schedule of Arraignment and Pre-trial. - REVISED GUIDELINES ON CONTINUOS
Once the court has acquired jurisdiction TRIAL OF CRIMINAL CASES
over the person of the accused, the III. Procedure
arraignment of the accused and the pre- 2) Motions
trial shall be set within ten (10) calendar (a) Motion for Inhibition – Motions for inhibition
days from date of the court's receipt of the based on grounds provided for under Rule 137 shall
case for a detained accused, and within be resolved immediately or within two (2) calendar
thirty (30) calendar days from the date the days from date of their filing.
court acquires jurisdiction (either by arrest or
voluntary surrender) over a non-detained
Motions prohibited
accused, unless a shorter period is provided
by special law or Supreme Court circular.
REVISED GUIDELINES ON CONTINUOS
The court must set the arraignment of the accused TRIAL OF CRIMINAL CASES
in the commitment order, in the case of detained (b) Prohibited Motions - Prohibited motions shall be
accused, or in the order of approval of bail, in any denied outright before the scheduled arraignment
other case. For this purpose, where the Executive without need of comment and/ or opposition.
Judge and Pairing Judges act on bail applications in
cases assigned to other courts, they shall coordinate The following motions are prohibited:
with the courts to which the cases are actually i. Motion for judicial determination of probable
assigned for scheduling purposes. cause.
ii. Motion for preliminary investigation filed beyond
Revised guidelines the five (5)-day reglementary period in inquest
proceedings under Sec. 6, Rule 112, or when
preliminary investigation is required under Sec. 8,
Rule 112, or allowed in inquest proceedings and the
accused failed to participate in the preliminary
Detained Non-detained investigation despite due notice.
Revised rules The accused within thirty iii. Motion for reinvestigation of the prosecutor
shall be (30) calendar recommending the filing of information once the
arraigned days from the information has been filed before the court
within ten (10) date the court (1) if the motion is filed without prior leave of court;
days from the acquires (2) when preliminary investigation is not required
date of the jurisdiction under Sec. 8, Rule 112; and
raffle. The pre- (3) when the regular preliminary investigation is
trial conference required and has been actually conducted, and the
of his case shall grounds relied upon in the motion are not
be held within meritorious, such as issues of credibility,
ten (10) days admissibility of evidence, innocence of the accused,
after or lack of due process when the accused was actually
arraignment. notified, among others.
Revised arraignment of iv. Motion to quash information when the ground is
guidelines the accused and not one of those stated in Sec. 3, Rule 117.
the pre-trial v. Motion for bill of particulars that does not
shall be set conform to Sec. 9, Rule 116.
within ten (10) vi. Motion to suspend the arraignment based on
calendar days grounds not stated under Sec. 11, Rule 116.
from date of vii. Petition to suspend the criminal action on the
the court's ground of prejudicial question, when no civil case
receipt of the has been filed, pursuant to Sec. 7, Rule 111.
case for a
detained EFFECT: it can be dismissed outright by the
accused
Court handling the case, period must be complied
with
Revised Rules Revised guidelines
91

 Court has to independently assess if there is

v. Motion for bill of particulars that does not reason to continue despite the resolution of
conform to Sec. 9, Rule 116. DOJ and OP
Section 9. Bill of particulars. — The accused may,
before arraignment, move for a bill of particulars to vii. Petition to suspend the criminal action on the
enable him properly to plead and to prepare for trial. ground of prejudicial question, when no civil case
The motion shall specify the alleged defects of the has been filed, pursuant to Sec. 7, Rule 111.
complaint or information and the details desired.  In case there is no civil action filed, there can
(10a) be no prejudicial question
Bill of particulars - Pleading which provides for a Meritorious motions

more definite statement of the allegations of complaint (c) Meritorious Motions. - Motions that allege plausible
or information found to be vague and ambiguous to grounds supported by relevant documents and/ or
enable the accused to properly plead and prepare for competent evidence, except those that are already
trial. covered by the Revised Guidelines, are meritorious
motions, such as:
 Must be those material information or element i. Motion to withdraw information, or to downgrade
of the crime being charged the charge in the original information, or to exclude
 The question being resolved in a bill of an accused originally charged therein, filed by the
particulars are whether or not the complaint or prosecution as a result of a reinvestigation,
information are averred with sufficient reconsideration, and review;
ii. Motion to quash warrant of arrest;
particularity to enable the party to give a
iii. Motion to suspend arraignment on the ground of
responsive pleading or prepare for trial. an unsound mental condition under Sec. 11(a), Rule
 The allowance for the motion of bill of 116;
particulars is discretionary on the part of the iv. Motion to suspend proceedings on the ground of
court a prejudicial question where a civil case was filed
 Either by filing an amended complaint or prior to the criminal case under Sec. ll(b), Rule 116;
information or filing a responsive pleading v. Motion to quash information on the grounds that
which the accused sought to be clarified the facts charged do not constitute an offense, lack
 May be a prohibited pleading if it does not of jurisdiction, extinction of criminal action or
conform with sec 9 liability, or double jeopardy under Sec. 3, par. (a), (b),
(g), and (i), Rule 117;
vi. Motion to discharge accused as a state witness
vi. Motion to suspend the arraignment based on
under Sec. 17, Rule 119;
grounds not stated under Sec. 11, Rule 116. vii. Motion to quash search warrant under Sec. 14,
Section 11. Suspension of arraignment. — Upon motion Rule 126 or motion to suppress evidence; and
by the proper party, the arraignment shall be viii. Motion to discuss on the ground that the
suspended in the following cases: criminal case is a Strategic Lawsuit Against Public
Participation (SLAPP) under Rule 6 of the Rules of
(a) The accused appears to be suffering from an Procedure for Environmental Cases.
unsound mental condition which effective
renders him unable to fully understand the charge (d) Motion for postponement. -A motion for
against him and to plead intelligently thereto. In such postponement is prohibited, except if it is based
case, the court shall order his mental examination on acts of God, force majeure or physical
and, if necessary, his confinement for such purpose; inability of the witness to appear and testify. If
 Until the cessation of the condition and the motion is granted based on such exceptions, the
recovers his full mental faculty moving party shall be warned that the presentation
 Test for competency to stand trial of its evidence must still be finished on the dates
1) Whether the defendant is sufficiently previously agreed upon. A motion for
coherent in providing the counsel with postponement, whether written or oral, shall at all
information to construct a defense times be accompanied by the original official receipt
2) whether he is able to comprehend the from the Office of the Clerk of Court evidencing
significance of the trial payment of the postponement fee under Sec. 21 (b),
(b) There exists a prejudicial question; and Rule 141, to be submitted either at the time of the
 Until termination or suspension of civil filing of said 1notion or not later than the next
action hearing date. The Clerk of Court shall not accept the
(c) A petition for review of the resolution of the motion unless accompanied by the original receipt.
prosecutor is pending at either the Department of
Justice, or the Office of the President; provided, that EFFECT: suspend the arraignment and pre-trial
the period of suspension shall not exceed sixty (60) because the Court has to resolve; will toll the
days counted from the filing of the petition with the
running of the period
reviewing office. (12a)
 Shall not exceed 60 days
Section 1. Arraignment and plea; how made. —
92

Characteristics
(a) The accused must be arraigned before the court  a precondition for the court’s acquisition of
where the complaint or information was filed or jurisdiction over the person of the accused to
assigned for trial. The arraignment shall be made in try and to decide his case.
open court by the judge or clerk by furnishing the  partakes the nature of an answer as in a civil
accused with a copy of the complaint or information, case through which the issues of the case are
reading the same in the language or dialect known to
joined and the court acquires jurisdiction to
him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses decide over the issues
other than those named in the complaint or  prior arraignment of the accused is
information. indispensable in a trial in absentia
(b) The accused must be present at the arraignment  if there is no arraignment or was improperly
and must personally enter his plea. Both arraignment conducted, the proceedings that happen
and plea shall be made of record, but failure to do so thereafter will be null and void
shall not affect the validity of the proceedings.
(c) When the accused refuses to plead or makes a Q: What is the basis of arraignment?
conditional plea, a plea of not guilty shall be entered A: Arraignment is the formal mode and manner of
for him. (1a) implementing the constitutional right of an accused to
(d) When the accused pleads guilty but presents be informed of the nature and cause of the accusation
exculpatory evidence, his plea shall be deemed
against him.
withdrawn and a plea of not guilty shall be entered
for him. (n)
(e) When the accused is under preventive detention, Q: What is the purpose of arraignment?
his case shall be raffled and its records transmitted A: The purpose of arraignment is to apprise the
to the judge to whom the case was raffled within accused of the possible loss of freedom, even of his
three (3) days from the filing of the information or life, depending on the nature of the crime imputed to
complaint. The accused shall be arraigned within ten him.
(10) days from the date of the raffle. The pre-trial
conference of his case shall be held within ten (10) Q: What is the nature of arraignment?
days after arraignment. (n) A: As an indispensable requirement of due process,
(f) The private offended party shall be required to arraignment cannot be regarded lightly or brushed
appear at the arraignment for purposes of plea aside peremptorily.
bargaining, determination of civil liability, and other
matters requiring his presence. In case of failure of
Remedies before arraignment
the offended party to appear despite due notice, the
court may allow the accused to enter a plea of guilty 1) Motion to conduct preliminary investigation
to a lesser offense which is necessarily included in 2) Motion to withdraw complaint or information
the offense charged with the conformity of the trial 3) Arrest with warrant, motion to quash warrant
prosecutor alone. (cir. 1-89) of arrest
(g) Unless a shorter period is provided by special law 4) Bail/ Petition for bail/Motion for reduction of
or Supreme Court circular, the arraignment shall be bail/recognizance
held within thirty (30) days from the date the court 5) Motion for bill of particulars
acquires jurisdiction over the person of the accused. 6) Motion to suspend arraignment
The time of the pendency of a motion to quash or 7) Motion to dismiss in case of strategic lawsuit
for a bill of particulars or other causes justifying against public participation
suspension of the arraignment shall be excluded in 8) Dismissal of the case before arraignment under
computing the period. (sec. 2, cir. 38-98)
the Rules on Summary Procedure
9) Diversion in case of Children in Conflict with
Arraignment – a procedure whereby the accused is
the law
brought before the court to plead to the criminal
charge in the indictment or information. The charge is
Duty of court to inform accused of his right to
read to him and he asked to plead “guilty” or “not
counsel
guilty” or where permitted, “nolo contendere”.
Section 6. Duty of court to inform accused of his right to
(Black’s Law Dictionary)
counsel. — Before arraignment, the court shall inform
the accused of his right to counsel and ask him if he
Arraignment is the formal mode and manner of desires to have one. Unless the accused is allowed to
implementing the constitutional right of an accused to defend himself in person or has employed a counsel
be informed of the nature and cause of the accusation of his choice, the court must assign a counsel de
against him. Its purpose is to apprise the accused why oficio to defend him. (6a)
he is being prosecuted by the State. As such, it is an
indispensable require of due process and thus, cannot Four-fold pre-arraignment duties of the judge
be regarded lightly or brushed aside peremptorily 1) To inform the accused that he has the right
(Taglay v. Daray) to have his own counsel before being
arraigned;
93

2) After giving such information, to ask accused up a new and additional fact which if proven will
whether he desires the aid of counsel; exempt him or relieve him in whole or in part of the
3) If he so desires to procure the services of criminal responsibility that would attach of proof guilt.
counsel, the court must grant him
reasonable time to do so; and Instances where a plea of NOT guilty is entered
4) If he so desires to have counsel but is unable to 1) When he pleads not guilty to the offense
employ one, the court must assign a counsel charged
de oficio to defend him. (People v. 2) When the accused refuses to plead; or
Agbayani, 1998, En Banc). 3) When the accused makes a conditional plea.
4) When he admits some or all of the acts in the
Section 7. Appointment of counsel de oficio. — The information but interposes additional facts
court, considering the gravity of the offense and the where if duly proven would exempt him in
difficulty of the questions that may arise, shall whole or in part of criminal responsibility
appoint as counsel de oficio only such members of 5) When after a plea of guilt he presents
the bar in good standing who, by reason of their evidence of self defense and other
experience and ability, can competently defend the exculpatory evidence
accused. But in localities where such members of the 6) When the plea made by the accused is
bar are not available, the court may appoint any
indefinite, vague, ambiguous
person, resident of the province and of good repute
for probity and ability, to defend the accused. (7a)
What objections are deemed waived if not raised
GR: The court, considering the gravity of the offense prior to the accused arraignment and plea?
and the difficulty of the questions that may arise, shall 1) That the Information does not conform
appoint as counsel de oficio only such members of the substantially to the prescribed form, and all
bar in good standing who, by reason of their experience possible objections to the sufficiency of the
and ability, can competently defend the accused. Information against him;
XPN: In localities where such members of the bar are 2) Duplicity/multiplicity of charges in the
not available, the court may appoint any person, Information in violation of Section 13, Rule
resident of the province and of good repute for probity 110;
and ability, to defend the accused (not necessarily a 3) Defects in the manner of the accused’s
lawyer) arrest;’
4) The illegality of the accused’s arrest; and
Section 8. Time for counsel de oficio to prepare for 5) Violation of the rights to Preliminary
arraignment. — Whenever a counsel de oficio is Investigation.
appointed by the court to defend the accused at the
arraignment, he shall be given a reasonable time to Remedies before enter of plea
consult with the accused as to his plea before 1) Amendment of the complaint or information
proceeding with the arraignment. (8) 2) Motion to quash complaint or information
3) Posting of bail/petition for bail
Plea – is the formal answer of the defendant in
common law pleading. The answer of “guilty” or “not Rearraignment of the accused is proper
guilty” in an arraignment for a criminal charge. 1) Accused is deaf-mute, retard whose mental
age is only 7 years old and nine months with
It is the response made by the accused in open court a low IQ with only 8
upon arraignment upon which the information is read 2) Trial court failed to explain fully to the
to him in a language or dialect known to him and such accused of the consequence of his plea of
accused is asked whether he pleads guilty or not to the guilt and the probable imposable penalty
offense charged. upon him
3) Where the information was amended and the
1) Plea of guilty accused plead on the original information
2) Plea of not guilty the action of the trial court was held proper
Plea of guilty Amended information

It is where the accused admits his guilt voluntarily and GR: When the complaint or information has been
admits the consequences of his act and with a clear amended, the accused shall be arraigned on the
understanding of the precise nature of the crime amended information.
charged in the complaint or information. It is absolute XPN: But in cases where the amendment was only as
and unconditional. to matters in form, he need not be rearraigned once he
has already pleaded in the original information.
Plea of not guilty
Where the accused denies his guilt or admits some of Form – no rearraignment
the allegations of the complaint or information but sets Substantial – rearraignment
94

Not allowed as a matter of bargaining or

Substituted information compromise, but may be availableonly if
Must plead on the new information 1) The prosecutor has no sufficient evidence
2) The court will approve or disapprove
May an arraignment be made after the case has 3) Not demandable as a matter of right
been submitted for decision?
YES. When and whose consent are necessary
1) At arraignment – offended party and
His arrest and not his arraignment conferred prosecutor
jurisdiction. The procedural defect was cured when 2) Failed to appear in arraignment despite
his counsel participated in the trial without facing due notice – trial prosecutor alone
any objection that his client is yet to be arraigned. 3) After arraignment but before trial
The counsel’s active participation of the hearing is a 4) After prosecution already presented
clear indication that he is fully aware of the charges
evidences
against him (People v. Pangilinan)
Grounds of objection waived after pleading Effect to civil liability

The civil liability may still be awarded.
1) Sufficiency of the information;
2) Failure of the information to allege time with
sufficient definiteness; Section 3. Plea of guilty to capital offense; reception of
evidence. — When the accused pleads guilty to a
3) Multiplicity of charges – may be made during
capital offense, the court shall conduct a searching
trial; inquiry into the voluntariness and full
4) Defects of the manner of arrest comprehension of the consequences of his plea and
5) Irregularity of arrest require the prosecution to prove his guilt and the
6) Violation of preliminary investigation precise degree of culpability. The accused may
7) Violation against the constitutional right present evidence in his behalf. (3a)
against unreasonable searches and seizures.
Rationale
Plea as not a waiver in the following cases The courts must proceed with greatest caution. To
1) Filed a demurrer to evidence and objected to avoid improvident pleads of guilt on the part of the
the formal offer of evidence accused where grave crimes are involved since he
2) Plea and active participation of trial might be admitting his guilt in the court.
3) Consistent invoking of regular preliminary
investigation The court shall:
1) Conduct a searching inquiry into the
Section 2. Plea of guilty to a lesser offense. — At voluntariness and full comprehension of the
arraignment, the accused, with the consent of the consequences of his plea; and
offended party and the prosecutor, may be allowed 2) Require the prosecution to prove his guilt
by the trial court to plead guilty to a lesser offense and the precise degree of culpability
which is necessarily included in the offense charged. 3. Ask the accused if he desires to present
After arraignment but before trial, the accused evidence in his behalf.
may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No
Searching inquiry
amendment of the complaint or information is
necessary. (sec. 4, circ. 38-98) The court provided herein the guidelines:
a) Ascertain from the accused himself (a) how
he was brought into the custody of the law;
A lesser offense is necessarily included in the
(b) whether he had the assistance of a
offense charged when the essential ingredients of the competent counsel during the custodial and
later constitute or form part of those constituting the preliminary investigations; and (c) under what
latter. Thus, the crime of homicide is necessarily conditions he was detained and
included in murder or theft is necessarily included in interrogated during the investigations.
robbery. b) Ask the defense counsel a series of questions
as to whether he had conferred with, and
What facts and circumstances are necessary to be completely explained to, the accused the
included therein must be determined by reference meaning and consequences of a plea of
to the definitions and essentials of the specified guilty.
crimes. The requirement of alleging the elements of a c) Elicit information about the personality
crime in the information is to inform the accused of profile of the accused, such as his age, socio-
the nature of the accusation against him so as to enable economic status, and educational background,
which may serve as a trustworthy index of his
him to suitably prepare his defense. (Canceran v.
capacity to give a free and informed plea of
People) guilty.
95

d) Inform the accused of the exact length of guilty to be withdrawn and be substituted by a plea
imprisonment or nature of the penalty under of not guilty. (5)
the law and the certainty that he will serve such
sentence. Improvident plea - It is usually a plea that is
e) Inquire if the accused knows the crime with involuntarily made and without consent. A plea is
which he is charged and to fully explain to usually considered improvident when there was failure
him the elements of the crime which the basis to conduct searching inquiry, failure of prosecution to
of his indictment is. present evidence or no rational basis between the
f) All questions posed to the accused should be in
testimony and of the guilt.
a language known and understood by the
latter.
g) The trial judge must satisfy himself that the It is a plea without information as to all the
accused, in pleading guilty, is truly guilty. The circumstances affecting it. It is based upon a mistaken
accused must be required to narrate the assumption or misleading information or advice.
tragedy or reenact the crime or furnish its (Black Law’s Dictionary)
missing details. (People v. Tonyacao)
The accused can confess guilt at any time even after
Proof of aggravating circumstances arraignment or trial must begin but the law is clear that
Must also be explained the aggravating circumstances he shall not thereby entitled into such plea as
when he pleads guilty imputed against him. Where the considered as mitigating.
aggravating circumstances listed in the information are
not supported by the evidence adduced a plea of not Instances of improvident plea
guilty to a capital offense cannot constitute an 1) Plea of guilty compelled by violence or
admission of the aggravating circumstances set forth in intimidation
the information. 2) The accused did not fully understand the
meaning and consequences of his plea
Plea of guilty cannot constitute an admission on the 3) Insufficient information to sustain
aggravating circumstances set forth in the information. conviction of the offense charged
4) Information does not charge an offense
People vs. Apduhan, Jr. cited by some of the cases relied 5) Court has no jurisdiction
upon by the lower court, declared that —
Period to withdraw an improvident plea
While an unqualified plea of guilty is mitigating, it at The court may permit an improvident plea of guilty to
the same time constitutes an admission of all material be withdrawn, at any time before the judgment of
facts alleged in the information, including the conviction becomes final and be substituted by a plea
aggravating circumstance therein recited, x x x The of not guilty. (Sec 5, Rule 116)
prosecution does not need to prove the three
aggravating circumstances (all alleged in the second Nature of an improvident plea
amended information) since the accused, by his plea of The withdrawal of a plea of guilty at any time before
guilty, has supplied the requisite proof. judgment is not a matter of strict right to the
accused but of sound discretion to the trial court.
Section 4. Plea of guilty to non-capital offense; reception of (Sec 5, Rule 116; People v. Lambino)
evidence, discretionary. — When the accused pleads
guilty to a non-capital offense, the court may receive Section 10. Production or inspection of material evidence in
evidence from the parties to determine the penalty possession of prosecution. — Upon motion of the
to be imposed. (4) accused showing good cause and with notice to the
parties, the court, in order to prevent surprise,
Plea of Guilty to Non-Capital Offenses Effect suppression, or alteration, may order the
The court may receive evidence from the parties. prosecution to produce and permit the inspection
Reception of evidence is discretionary on the part of and copying or photographing of any written
the court in contrast with a plea of guilt to a capital statement given by the complainant and other
offense. witnesses in any investigation of the offense
conducted by the prosecution or other investigating
Plea on capital Plea on non-capital officers, as well as any designated documents,
offenses offenses papers, books, accounts, letters, photographs,
objects or tangible things not otherwise privileged,
Reception of evidence is Reception of evidence is
which constitute or contain evidence material to any
mandatory. discretionary
matter involved in the case and which are in the
Hearing is mandatory Hearing is discretionary
possession or under the control of the prosecution,
police, or other law investigating agencies. (11a)
Section 5. Withdrawal of improvident plea of guilty. — At
any time before the judgment of conviction becomes
 Mode of discovery which is available only to
final, the court may permit an improvident plea of
the accused
96

 Leave of court is required for this particular It is the process whereby the accused, the offended
mode of discovery party and the prosecution work out a mutually
 This is part of the right of accused to satisfactory disposition of the case subject to court
compulsory process in his behalf approval. It usually involves the defendant’s pleading
guilty to a lesser offense or to only one or some of the
Requisites counts of a multi-count indictment in return for a
1) The accused must file a motion showing good lighter sentence than that for the graver charge. In this
cause; jurisdiction, plea bargaining has been defined as "a
2) The documents must be in the possession of process whereby the accused and the prosecution work
the prosecution, police, or other law out a mutually satisfactory disposition of the case
investigating agencies. subject to court approval.” (Estipona Jr. v. Lobrigo)
3) The documents must constitute evidence
Effect of void plea bargaining
material to the case
Void ab initio
RULE 118 (b) stipulation of facts;
PRE -TRIAL
 Sanctioned by law; in further pursuit of
expediting trial
Section 1. Pre-trial; mandatory in criminal cases. — In all
criminal cases cognizable by the Sandiganbayan,  Effect: considered as judicial admissions
Regional Trial Court, Metropolitan Trial Court, which will be binding upon the parties
Municipal Trial Court in Cities, Municipal Trial  it will result to a waiver of their right to
Court and Municipal Circuit Trial Court, the present evidence of the facts stipulated
court shall after arraignment and within thirty (30)  age cannot be a stipulation of fact
days from the date the court acquires  In order for the accused to be bound, it must
jurisdiction over the person of the accused, unless be signed by him
a shorter period is provided for in special laws or
circulars of the Supreme Court, order a pre-trial Stipulation of facts Stipulation of facts
conference to consider the following: during pre-trial during trial proper
Reduced in writing and Automatically reduced in
(a) plea bargaining; must be signed by the writing and is contained
(b) stipulation of facts; accused and counsel in the transcript of the
(c) marking for identification of evidence of the proceeding
parties; Consent or signature of
(d) waiver of objections to admissibility of evidence; the accused is
(e) modification of the order of trial if the accused unnecessary in view of
admits the charge but interposes a lawful defense; the fact that an attorney
and is employed to manage
(f) such other matters as will promote a fair and the party’s conduct to a
expeditious trial of the criminal and civil aspects of lawsuit
the case. (secs. 2 and 3, cir. 38-98)
(c) marking for identification of evidence of the parties;
Pre-trial - is a procedural device intended to clarify and
 what is specified are the possible evidence
limit the basic issues between the parties and to take
which may be presented during the trial
the trial of cases out of the realm of surprise and
 No evidence shall be allowed to be presented
maneuvering. It thus paves the way for a less cluttered
and offered during the trial other than those
trial and resolution of the case. (LCK Industries v. identified and marked during the pre-trial
Planters Development Bank) except when allowed by the court for good
cause shown. (I-B [2], AM No. 03-1-09-SC)
Period (d) waiver of objections to admissibility of evidence;
Within the same day of the arraignment and plea (e) modification of the order of trial if the accused
(Revised Guidelines for Continuous Trial of admits the charge but interposes a lawful defense; and
Criminal Cases)  Reverse trial order
(f) such other matters as will promote a fair and
Pre-trial conference - is used as a device to narrow expeditious trial of the criminal and civil aspects of the
down issues to be tried, to secure stipulations as to case.
matters and stipulations to be heard and to take all  If the accused has pleaded not guilty to the
other steps necessary to aid the disposition of the case. crime charged, he may state whether he
interposes a negative or affirmative defense.
Matters to be considered during pre-trial A negative defense shall require the
(a) plea bargaining; prosecution to prove the guilt of the accused
Definition beyond reasonable doubt, while an
affirmative defense may modify the order of
trial and require the accused to prove such
97

defense by clear and convincing evidence. (Sec  If the accused is on bail and does not appear at
3, RA 8493 or the Speedy Trial Act) the pre-trial as required by the court, the court
 Negative - require the prosecution to prove may cancel the bail
the guilt of the accused beyond reasonable  If under the custody of the law and the jail
doubt warden fails to present the accused the court
Affirmative - modify the order of trial and may impose a penalty on the jail warden
require the accused to prove such defense by
clear and convincing evidence Non-appearance of the private offended party
 Appearance of the private offended party is not
Section 2. Pre-trial agreement. — All agreements or required by the court
admissions made or entered during the pre-trial  Presence is required at the plea-bargaining,
conference shall be reduced in writing and signed determination of civil liability and matters
by the accused and counsel, otherwise, they requiring his presence
cannot be used against the accused. The agreements
covering the matters referred to in section 1 of this
Duties of clerk of court
Rule shall be approved by the court. (sec. 4, cir. 38-
During the preliminary conference, the branch clerk of
98)
court shall:
Pre-trial agreement 1) Assist the parties in reaching a settlement of
To safeguard the accused in unauthorized agreements the civil aspect of the case;
which his counsel may have entered into without his 2) Mark the documents to be presented as
knowledge as he may waived his presence in the pre- exhibits and copies thereof attached to the
trial conference. There is necessity to affixed the records after comparison;
signature. The rule is mandatory. 3) Ascertain from the parties the undisputed facts
and admissions on the genuineness and due
Pre-trial agreement as evidence execution of documents marked as exhibits;
1) It is reduced in writing and
2) Signed by the accused and his counsel 4) Consider such other matters as may aid in the
prompt disposition of the case. (A.M. No. 03-
Approval of court 1-09-SC)
The agreements in relation to matters referred to in
Sec. 1, Rule 118 are subject to the approval of the The proceedings during the preliminary conference
shall be recorded in the minutes of preliminary
court. (Sec 2, Rule 118) Provided, that the
conference to be signed by both parties and counsel.
agreement on the plea of the accused to a
(A.M. No. 03-1-09-SC)
lesser offense may only be revised, modified,
or annulled by the court when the same is Duty of the judge before pre-trial conference
contrary to law, public morals, or public policy. The judge before pre-trial conference must study the
(Sec 3, RA 8493 or the Speedy Trial Act) following:
1) Allegations of the information;
Effect 2) Statements in the affidavits of witnesses; and
If the accused has not signed the pre-trial 3) Other documents which form part of the
conference, the admission therein cannot be used record of the preliminary investigation. (A.M.
against him. No. 03-1-09-SC)
In this case, while it appears that the pre-trial Duty of the judge when plea bargaining is agreed
agreement was signed only by the prosecution upon
and defense counsel, the same may nevertheless During the pre-trial, the trial judge shall consider plea-
be admitted given that the defense failed to bargaining arrangements, except in cases for violations
object to its admission. (People v. Likiran) of the Comprehensive Dangerous Drugs Act
regardless of the imposable penalty. (Sec 23, RA 9165)
Section 3. Non-appearance at pre-trial conference. — If
the counsel for the accused or the prosecutor does
Duty of the judge when plea bargaining fails
not appear at the pre-trial conference and does
1) Adopt the minutes of preliminary
not offer an acceptable excuse for his lack of
cooperation, the court may impose proper conference as part of the pre-trial
sanctions or penalties. (se. 5, cir. 38-98) proceedings, confirm markings of exhibits or
substituted photocopies and admissions on the
Non-appearance of the counsel genuineness and due execution of documents
Counsel may be held in contempt (Sec 1, Rule 77) and list object and testimonial evidence;
2) Scrutinize every allegation of the
Non-appearance of the accused information and the statements in the
affidavits and other documents which form
98

part of the record of the preliminary

investigation and other documents identified Waiver
and marked as exhibits in determining further Failure to object to the introduction of evidence on an
admissions of facts, documents and in issue not contained in a pre-trial order – IMPLIED
particular as to the following: CONSENT
 The identity of the accused;
 Court’s territorial jurisdiction relative to PART III REVISED GUIDELINES ON
the offense/s charged; CONTINUOUS TRIALS FOR CRIMINAL
 Qualification of expert witness; CASES
 Amount of damages; 8(C) Waiver of Reading of the Information. - In
 Genuineness and due execution of multiple cases, the court, upon personal examination
documents; of the accused, may allow a waiver of the reading of the
 The cause of death or injury, in proper information upon the full understanding and express
cases; consent of the accused and his/her counsel, which
 Adoption of any evidence presented during consent shall be expressly stated in both the minutes/
the preliminary investigation; certificate of arraignment and the order of arraignment.
 Disclosure of defenses of alibi, insanity, The court shall explain the waiver to the accused in the
self-defense, exercise of public authority language or dialect known to him/her, and ensure the
and justifying or exempting circumstances; accused's full understanding of the consequences of
and the waiver before approving the same.
 Such other matters that would limit the
facts in issue. (d) Arraignment Proper
3) Define factual and legal issues; i. Plea Bargaining Except in Drug Cases. - If the accused
4) Ask parties to agree on the specific trial desires to enter a plea of guilty to a lesser offense,
dates and adhere to the flow chart plea bargaining shall immediately proceed,
determined by the court which shall contain provided the private offended party in private crimes,
the time frames for the different stages of the or the arresting officer in victimless crimes, is present
proceeding up to promulgation of decision and to give his/her consent with the conformity of the
use the time frame for each stage in setting the public prosecutor to the plea bargaining. Thereafter,
trial dates; judgment shall be immediately rendered in the same
5) Require the parties to submit to the Branch proceedings.
COC the names, addresses and contact ii. Plea of Guilty to the Crime Charged in the Information. - If
numbers of witnesses that need to be the accused pleads guilty to the crime charged in
summoned by subpoena; and the information, judgment shall be immediately
6) Consider modification of order of trial if the rendered, except in those cases involving capital
accused admits the charge but interposes a punishment
lawful defense. (A.M. No. 03-1- 09-SC) *non capital – hearing is discretionary
iii. Where No Plea Bargaining or Plea of Guilty Takes Place.
Section 4. Pre-trial order. — After the pre-trial - If the accused does not enter a plea of guilty,
conference, the court shall issue an order reciting the whether to a lesser offense or to the offense charged in
actions taken, the facts stipulated, and evidence the information, the court shall immediately
marked. Such order shall bind the parties, limit the proceed with the arraignment and the pretrial, in
trial to matters not disposed of, and control the accordance with the succeeding provisions on pre-
course of the action during the trial, unless modified trial. The schedule of the trial dates, for both the
by the court to prevent manifest injustice. (3) prosecution and the accused, shall be continuous and
within the periods provided in the Regular Rules/
Pre-trial order Special Rules. The trial dates may be shortened
It is an order issued by the court reciting the actions depending on the number of witnesses to be presented.
taken, the facts stipulated, and the evidence marked In this regard, a flowchart shall be prepared by the
during the pre-trial conference. (Sec 4, Rule 118) court which shall serve as the final schedule of
hearings.
Period for the trial judge to issue a pre-trial order
and its contents
It must be issued within 10 days after the termination
of the pre-trial. It shall set forth the following:
1) Actions taken during the pre-trial conference;
2) Facts stipulated;
3) Admissions made;
4) Evidence marked; and
5) Number of witnesses to be presented and the
schedule of trial. (Sec 4, Rule 118)
99

a. B.P. Blg. 22;

b. SSS Law (R.A. No. 1161, as amended by R.A No.
8282); and
c. PAG-IBIG Law (R.A. No. 9679).
ii. Crimes against property under Title 10 of the

Revised Penal Code (RPC), where the obligation
may be civil in nature, such as:
a. Theft under Art. 308, RPC, cognizable by the first
level courts;
b. Estafa under Art. 315(1), RPC, except estafa under
Art. 315 (2) and (3);
c. Other forms of swindling under Art. 316, RPC;
d. Swindling of a minor under Art. 317, RPC;
e. Other deceits under Art. 318, RPC; and
f. Malicious mischief under Art. 327, RPC.
Crimes against honor under Title 13, RPC, where

the liability may be civil in nature, such as:
a. Libel by means of writings or similar means under
Art. 355, RPC;
b. Threatening to publish and offer to present such
publication for a compensation under Art. 356, RPC;
c. Prohibited publication of acts referred to in the
course of official proceedings under Art. 357, RPC;
d. Grave Slander (Grave Oral Defamation) of serious
and insulting nature under Art. 358, par. 1, RPC;
e. Simple Slander (Oral Defamation) - not of a serious
and insulting nature under Art. 358, par. 2, RPC;
f. Grave Slander by Deed - of a serious nature under
Art. 359, par. 1, RPC;
g. Simple Slander by Deed - not of a serious nature
(e) Arraignment and Preliminary Conference of under Art. 359, par. 2, RPC;
Mediatable Cases subject to the Rule on Summary h. Incriminating innocent person under Art. 363, RPC;
Procedure L Intriguing against honor under Art. 364, RPC;
The arraignment and preliminary conference shall i. Libel under R.A. 10175 (Cybercrime Prevention Act
be simultaneously held, and the court shall take up of 2012) where the liability may be civil in nature;
all the matters required under Sec. 14, Rule on j. Criminal negligence under Title 14, RPC, where the
Summary Procedure during the preliminary liability may be civil in nature; and
conference. k. Intellectual property rights cases where the liability
i. If the accused pleads guilty to the crime charged may be civil in nature.
in the information, subheading III, item no. 8,
subparagraph ( d) ii. (Plea of Guilty to the Crime (b) The referral of the case for mediation to the
Charged In the Information) shall be followed. Philippine Mediation Center (PMC) Unit shall be
ii. If the accused pleads guilty to a lesser offense, made only after the conduct of the arraignment
subheading III, item no. 8, subparagraph (d) 1 (Plea and the pre-frial/ preliminary conference. The
Bargaining except in Drug Cases) shall be followed. court shall serve the Order of Referral to the PMC
iii. If the accused does not enter a plea of guilty, Unit immediately after the arraignment and the
whether to a lesser offense or to the offense pre-trial / preliminary conference.
charged in the information, the court shall
immediately proceed with the arraignment and the The mediation shall be terminated within a non-
preliminary conference, and thereafter refer the case extendible period of thirty (30) calendar days from
to mediation. the date of referral by the court to the PMC Unit.
After the lapse of the mediation period or if mediation
9 Mediation (only civil aspect is discussed) fails, trial shall proceed. Except those cases mentioned
(a) The fallowing cases shall be referred to mediation above, criminal cases subject to the Rule on Summary
on the civil liability unless a settlement is reached earlier Procedure shall not be referred to mediation.
in the pre-trial/ preliminary conference:
i. Crimes where payment may prevent criminal
RULE 117
prosecution or ani extinguish criminal liability, MOTION TO QUASH
such as violations of:
100

Section 1. Time to move to quash. — At any time (h) That it contains averments which, if true, would
before entering his plea, the accused may move to constitute a legal excuse or justification; and
quash the complaint or information. (1) (i) That the accused has been previously
convicted or acquitted of the offense charged, or
Definition the case against him was dismissed or otherwise
A motion to quash is defined as a motion requesting terminated without his express consent. (3a)
that a criminal complaint or information be dismissed
on grounds specified by law or rule. It is an omnibus Effects of the accused’s failure to file a motion to
motion. quash the complaint or information
Omnibus motion rule
Purpose 1) The ground for quashing the information is
The designated purpose of a motion to quash is to waived
assail the validity of the criminal information for Once you already entered your plea, the
defects or defenses apparent on the face of the ground of lack of jurisdiction of the court
information. (Galzole y Soriaga v. Briones and over your person shall be deemed waived.
People)
2) The right to object to evidence is waived.
Section 9. Failure to move to quash or to allege any ground The action belongs to the accused
therefor. — The failure of the accused to assert any GR: The court or judge cannot, on its own or
ground of a motion to quash before he pleads to the motu proprio, initiate a motion to quash if no
complaint or information, either because he did not motion to quash is filed by the accused. A
file a motion to quash or failed to allege the motion contemplates an initial action
same in said motion, shall be deemed a waiver of originating from the accused. It is the accused
any objections except those based on the grounds who is in the best position to know on what
provided for in paragraphs (a), (b), (g), and (i) of ground or grounds he will base his
section 3 of this Rule. (8) objection to the information.
XPN: In the other instances which are not
Period to file motion to quash an information or waived (4 instances in Section 9, also in certain
complaint circumstances 3d), the court, if on the face of
GR: At any time before entering his plea, the accused the information or complaint sees that it is
may move to quash the complaint or information. (Sec. present, may dismiss the criminal action.
1, Rule 117)
XPNs: These grounds may be invoked at any stage of Section 2. Form and contents. — The motion to quash
the proceedings shall be in writing, signed by the accused or his
 The facts charged do not constitute an counsel and shall distinctly specify its factual and
offense; legal grounds. The court shall consider no ground
 Lack of jurisdiction over the offense other than those stated in the motion, except lack
charged; of jurisdiction over the offense charged. (2a)
 The criminal action or liability has been
extinguished; and Application
 Double Jeopardy. (Sec. 9, Rule 117) Section two clearly implies the requirement of filing a
NOTE: These grounds may be invoked at any stage motion by the accused, even if the ground asserted
of the proceedings. is premise on lack of jurisdiction over the offense
charge. Lack of jurisdiction should be evident
Section 3. Grounds. — The accused may move to from the face of the information or complaint to
quash the complaint or information on any of the warrant a dismissal thereof the motion must be signed
following grounds: by the accused or his counsel, and shall distinctly
specify its factual and legal grounds.
(a) That the facts charged do not constitute an
offense; Grounds
(b) That the court trying the case has no a) the facts charged do not constitute an
jurisdiction over the offense charged; offense
(c) That the court trying the case has no jurisdiction  Whether or not all the elements necessary to
over the person of the accused; constitute an offense is present or is found in
(d) That the officer who filed the information had
the face of the complaint or information.
no authority to do so;
(e) That it does not conform substantially to the  Whether or not the facts alleged or asservated,
prescribed form; if hypothetically admitted would establish the
(f) That more than one offense is charged except essential elements of the crime defined in the
when a single punishment for various offenses is law.
prescribed by law; If you file a motion to quash based on this
(g) That the criminal action or liability has been ground, it is assumed or presumed that you
extinguished; already hypothetically admit all the allegation or
101

statement in the complaint or information, but  any complaint directly filed to the court
that such statement or allegations in the by the offended party or peace officer
complaint or information is not compete to where the accused is arrested without
charge an offense. warrant and the inquest prosecutor’s
absence or unavailable.
No immediate grant of quashal
Sec 4. Who has authority to file
xxxIf it is based on the ground that the facts 1) the offended party,
charged do not constitute an offense, the 2) any peace officer or
prosecution shall be given by the court an
3) other public officers charged with the
opportunity to correct the defect by amendment.
The motion shall be granted if the prosecution enforcement of the law violated.
fails to make the amendment, or the complaint
or information still suffers from the same defect Other officers charged with the enforcement of
despite the amendment. (n) law
1) Members of the Philippine National Police for
Even after being given opportunity to correct the violation of any law ordinance for the
defect, the prosecution still fails, then the protection of lives and properties.
complaint or information which still suffers from 2) Officers or social workers of the Department
the same defect, despite the amendment shall of Social Welfare and Development or the
already be ordered quash. barangay chairman for cases of unlawful acts
committed against children as enumerated
NOTE: under Republic Act 7610. Or the special
Ground A Ground B protection of children against child abuse,
The prosecution shall The court may exploitation and discrimination.
be given by the court consider relevant facts 3) Forest officers or employees of the Bureau of
an opportunity to aliunde (external evidence) forestry for criminal offenses punish by forest
correct the defect by loss,
amendment 4) the Internal Revenue officers for violation of
national Internal Revenue Code and other
revenue loss administered by the Bureau of
b) That the court trying the case has no internal revenue,
jurisdiction over the offense charged; 5) customs authority for violation of the tariff and
 jurisdiction over the subject matter customs code and other customs,
 territorial jurisdiction 6) law building officials for violations of the
If the motion to quash is granted, again, the effect National Building Code officers
is that the prosecution can actually refile this 7) agents of the Philippine Drug Enforcement
particular criminal case, because no jeopardy will Agency for violations of the comprehensive
attach so the filing of the criminal case should be in Dangerous Drugs Act.
the court where there is proper jurisdiction. 8) The law enforcement officers of the
Department of Agriculture the Philippine
c) That the court trying the case has no
Navy, Philippine Coast Guard, Philippine
jurisdiction over the person of the accused
National Police PNP maritime command law,
 with or without warrant 9) enforcement officers of local government units
 based on voluntary submission to the and other government enforcement agencies
jurisdiction of the court for violations of Philippine fisheries code.
If other grounds are included, then it will be 10) other officers that are charged to implement
deemed as voluntary submission or asking the
certain special laws with penal provisions, for
court for relief
example, as SSS law, the revised Corporation
code, the Securities and Exchange Commission
d) That the officer who filed the information
as regards the securities regulation code, and
had no authority to do so
the like.
 complaint filed in court involving
offenses which could not be
other officers which have the authority to file an
prosecuted de officio such as
information
seduction, abduction, acts of
1) the provincial or city prosecutors and their
lasciviousness, adultery, and
assistants under sections three and four of rule
concubinage (ACASA)
112,
 complaint filed directly with the
2) the chief state prosecutor or now, what is
municipal trial court in cases where
called the Prosecutor General under section for
preliminary investigation is not
rule 112.
required
102

3) The Ombudsman's or his deputies, the national  Complex crime - a single act constitutes
and regional state prosecutors now regional two or more grave or less grave felonies or
prosecutors under Section 3 Rule 112. when an offense is a necessary means in
4) The Commission on election legal officers or committing the other
election officers in election cases in special  Compound crime - a single act
counsel designated by the Secretary of justice, constitutes two or more grave or less
which are designated to prosecute certain grave felonies.
offenses.  Complex crime proper - offense is a
necessary means in the commission of
In a specific and a certain instance where the lack of the other
authority of the person filing the information, also
amounts to lack of jurisdiction of the court over  Special complex crime - crimes
the subject matter of the case, the ground of lack specifically named or designated in special
of authority, will also not be deemed waived even penal offenses or under the Revised Penal
if it is not mentioned in the motion to quash or
Code all of which are punished with one
alleged in that motion.
penalty
e) That it does not conform substantially to
the prescribed form Special complex Ordinary complex
crime crimes
GR: If the information failed to alleged with
specifically named or applies specifically to
certainty the designated in special felonies defined
 time of the commission of the offense penal offenses or under the Revised
or under the Revised Penal Code and is
 the name of the accused or name of the Penal Code governed by Article
offended party, 48 of the RPC
 the place where the act was committed,
The accused can either file a  Continuous crimes – (delito continuado),
1) bill of particulars or single larceny doctrine, a series of act
2) a quashal of the information, on the ground arising from a single criminal intent.
that it does not conform substantially to the
prescribed form. g) That the criminal action or liability has
been extinguished;
XPN: If the defect in the complaint or The extinguishment of the criminal action or
information can be corrected by amendment the liability already means that the state has lost
then the court first must give an opportunity or has waived its right to prosecute an act
for the prosecution to correct the defect prohibited and punished by law.
f) That more than one offense is charged Art. 89. How criminal liability is totally extinguished. —
except when a single punishment for Criminal liability is totally extinguished:
various offenses is prescribed by law; 1. By the death of the convict, as to the personal
penalties and as to pecuniary penalties, liability
RULE 110 therefor is extinguished only when the death of the
Section 13. Duplicity of the offense. — A complaint or offender occurs before final judgment.
information must charge but one offense, except 2. By service of the sentence;
when the law prescribes a single punishment for 3. By amnesty, which completely extinguishes the
various offenses. (13a) penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
Duplicitous complaints or information
6. By prescription of the penalty;
Rule 7. By the marriage of the offended woman, as
3) Complaint filed in court – duplicitous provided in Article 344 of this Code.
complaints apply
4) Complaint filed to the prosecutor’s office - Art. 90. Prescription of crime. — Crimes punishable by
duplicitous complaints do not apply death, reclusion perpetua or reclusion temporal
shall prescribe in twenty years.
GR: The rule prohibits charging of two or more
offenses in a single information has for its aim to give Crimes punishable by other afflictive penalties
the defendant the necessary knowledge of the charge shall prescribe in fifteen years.
to enable him to prepare for his defense. The State shall
not heap upon the defendant two or more charges Those punishable by a correctional penalty shall
which might confuse him in his defense prescribe in ten years; with the exception of those
XPN: when the law prescribes a single punishment punishable by arresto mayor, which shall prescribe
in five years.
103
for various offenses such as:

 The complaint or information already

The crime of libel or other similar offenses shall contains allegations, which constitute
prescribe in one year. legal excuse or justification, and the
court will not look at any other
The crime of oral defamation and slander by paper, evidence outside the
deed shall prescribe in six months. complaint or information to decide
whether or not this ground for a
Light offenses prescribe in two months.
motion to quash is present.
When the penalty fixed by law is a compound one,  If an information is filed essentially
the highest penalty shall be made the basis of the reiterating the same violation, then that
application of the rules contained in the first, second particular accused can move for the
and third paragraphs of this article. (As amended by quashal and or dismissal of the case
RA 4661, approved June 19, 1966). based on that previous ruling of the
court case.
Act No. 3326
AN ACT TO ESTABLISH PERIODS OF Art. 11. Justifying circumstances. — The following do
PRESCRIPTION FOR VIOLATIONS not incur any criminal liability:
PENALIZED BY SPECIAL ACTS AND
MUNICIPAL ORDINANCES AND TO 1) Anyone who acts in defense of his person
PROVIDE WHEN PRESCRIPTION or rights, provided that the following
SHALL BEGIN TO RUN circumstances concur;
Section 1. Violations penalized by special acts shall,
unless otherwise provided in such acts, prescribe in First. Unlawful aggression.
accordance with the following rules: Second. Reasonable necessity of the means employed
a) after a year for offenses punished only by to prevent or repel it.
a fine or by imprisonment for not more Third. Lack of sufficient provocation on the part of
than one month, or both; (< 1 month) the person defending himself
b) after four years for those punished by
imprisonment for more than one month, 2) Any one who acts in defense of the person
but less than two years; (1 month – 2 years) or rights of his spouse, ascendants,
c) after eight years for those punished by descendants, or legitimate, natural or
imprisonment for two years or more, but adopted brothers or sisters, or his
less than six years; and (2-6 years) relatives by affinity in the same degrees
d) after twelve years for any other offense and those consanguinity within the
punished by imprisonment for six years or fourth civil degree, provided that the first
more, except the crime of treason, which and second requisites prescribed in the next
shall prescribe after twenty years. preceding circumstance are present, and the
Violations penalized by municipal further requisite, in case the revocation was
ordinances shall prescribe after two given by the person attacked, that the one
months. (6-20 years), treason – 20, making defense had no part therein.
municipal ordinances – 2 months 3) Anyone who acts in defense of the person
or rights of a stranger, provided that the
Art. 91. Computation of prescription of offenses. — The first and second requisites mentioned in
period of prescription shall commence to run from the first circumstance of this Art. are
the day on which the crime is discovered by the present and that the person defending be
offended party, the authorities, or their agents, not induced by revenge, resentment, or
and shall be interrupted by the filing of the other evil motive.
complaint or information, and shall commence to 4) Any person who, in order to avoid an evil
run again when such proceedings terminate without or injury, does an act which causes damage
the accused being convicted or acquitted, or are to another, provided that the following
unjustifiably stopped for any reason not imputable requisites are present;
to him.
First. That the evil sought to be avoided actually
The term of prescription shall not run when the exists;
offender is absent from the Philippine Archipelago. Second. That the injury feared be greater than that
done to avoid it;
Pardon in private crimes Third. That there be no other practical and less
RULE: Once the complaint or information is filed in harmful means of preventing it.
court, the control of the proceedings will be subject to
5) Any person who acts in the fulfillment of a
the discretion of the court.
duty or in the lawful exercise of a right or
office.
h) That it contains averments which, if true, 6) Any person who acts in obedience to an
would constitute a legal excuse or order issued by a superior for some lawful
justification;
104
purpose.

or acquittal under either shall constitute a bar to

Art. 12. Circumstances which exempt from criminal liability. another prosecution for the same act.
— the following are exempt from criminal liability:
1) If the accused is an imbecile or an insane Section 7. Former conviction or acquittal; double jeopardy.
person, unless the accused has acted during — When an accused has been convicted or
a lucid interval. When the imbecile or insane acquitted, or the case against him dismissed or
person has committed an act, which the law otherwise terminated without his express
defines as a felony, the court order his consent by a court of competent jurisdiction,
confinement in one of the hospitals or upon a valid complaint or information or other
asylums established for persons afflicted formal charge sufficient in form and substance
with insanity, which he shall not be to sustain a conviction and after the accused had
permitted to live without the without first pleaded to the charge, the conviction or acquittal
obtaining the permission of the court. of the accused or the dismissal of the case shall be a
2) A person who is under 15 years of age, bar to another prosecution for the offense
however, the child shall be subjected to an charged, or for any attempt to commit the same
intervention program under Republic Act or frustration thereof, or for any offense which
9344 necessarily includes or is necessarily included in
3) A person over 15 years of age and under the offense charged in the former complaint or
18, unless, if he has acted with information.
discernment, shall be exempt. In the case
of a person acting with discernment, since he However, the conviction of the accused shall not be
is not exempt from criminal liability, he shall a bar to another prosecution for an offense which
be subjected to appropriate proceedings in necessarily includes the offense charged in the
accordance with the provisions of RA 9344. former complaint or information under any of the
4) Any person who is performing a lawful act following instances:
with due care causes an injury by mere
accident without fault or intention of (a) the graver offense developed due to
causing it supervening facts arising from the same act or
5) Any person who acts under the omission constituting the former charge;
compulsion of an irresistible force or (b) the facts constituting the graver charge became
6) Any person who acts under the impulse of known or were discovered only after a plea was
an uncontrollable fear of an equal or entered in the former complaint or information; or
greater injury, and (c) the plea of guilty to the lesser offense was made
7) Any person who fails to perform an act without the consent of the prosecutor and of the
required by law when prevented by some offended party except as provided in section 1 (f)
lawful or insuperable cause. of Rule 116.
Art. 332. Persons exempt from criminal liability. — No In any of the foregoing cases, where the accused
criminal, but only civil liability, shall result from satisfies or serves in whole or in part the judgment,
the commission of the crime of theft, swindling or he shall be credited with the same in the event of
malicious mischief committed or caused mutually conviction for the graver offense. (7a)
by the following persons:
1) Spouses, ascendants and descendants, or Two-pronged requisites
relatives by affinity in the same line. 1) first jeopardy must have attached prior to the
2) The widowed spouse with respect to the second.
property which belonged to the deceased  The accused individual is charged
spouse before the same shall have passed under a complaint or information
into the possession of another; and sufficient in form in substance to
3) Brothers and sisters and brothers-in-law and
sustain his conviction
sisters-in-law, if living together.
Waiver of the objections as to
The exemption established by this article shall not
be applicable to strangers participating in the sufficiency
commission of the crime. Can sustain a conviction = valid
information, first jeopardy will attach
i) That the accused has been previously Cannot sustain a conviction = invalid
convicted or acquitted of the offense information, first jeopardy will not
charged, or the case against him was attach
dismissed or otherwise terminated without  The court has jurisdiction
his express consent  All proceedings are considered
null and void
Article III, 1987 Constitution  The accused had been arraigned and
SECTION 21. No person shall be twice put in had pleaded
jeopardy of punishment for the same offense. If an  any defect in the arraignment in
act is punished by a law and an ordinance, conviction the plea of the accused which
will render it invalid whether it
105

be the fault of the court, the included in the offense charged in the former
prosecution or even the complaint or information.
accused himself will render the
arraignment in plea as invalid Same evidence test
and therefore, the first Whether or not a prosecution for one crime constitutes
jeopardy will not attach. an obstacle to a subsequent action for another distinct
 He is convicted or acquitted, or the crime, upon the same facts, is to inquire whether the
case was dismissed or otherwise facts alleged in the second information, if proven,
terminated without his express would have been sufficient to support the former
consent. information of which the accused may have been
Instances where even with the express acquitted or convicted, or there is a dismissal without
consent of the accused, it will still be the express consent of the accused, subject to certain
considered as a dismissal or exceptions. Whether or not the same evidence
termination supports the two actions.
if the accused files for a demurrer to
evidence – considered as acquittal The test is to inquire whether the two offenses are in
in case it is the accused who filed a substance, precisely the same, or of the same nature or
motion to dismiss the case because of of the same species so that the evidence which proves
a violation of his right to a speedy trial the one, would prove the other.
or a specific speedy disposition of cases
- considered as acquittal Negative tests
1) A single act may be an offense against two
Finality of Acquittal Doctrine - A judgment of statutes. And if each statute requires proof of
acquittal, whether ordered by the trial or the an additional fact, which the other does not,
appellate court, is final, unappealable, and then it does not exempt the accused from
immediately executory upon its promulgation. prosecution or conviction under the other.
2) If the evidence required to convict under the
2) The first jeopardy must have terminated. first indictment would not be sufficient to
 No appeal or any other convict under the second indictment, but
proceedings, which will deem proof of additional fact would be necessary
the case still not final and/or to constitute the offense charge.
executory 3) unless the two offenses charged are the same
3) the second Jeopardy must be for the same in law and in fact, they are not the same
offense as the first or the second offense offense.
includes or is necessarily included in the
offense charge in the first information or is an Instances when conviction is not a bar to another
attempt to commit the same or is a frustration prosecution
thereof. 1) Supervening facts;
 If an act is punished by law, and 2) When there are newly discovered facts after a
an ordinance, conviction or plea was entered in the former complaint or
acquittal, under either shall information; or
constitute a bar to other 3) When there is an improper plea of guilty to a
prosecution for the same. lesser offense
Two recognized tests in determining the existence No double may arise

of double jeopardy 1) When the accused appeals from the sentence
1) Same offense test/identity rule  Deemed waived the
2) Same evidence test constitutional right of double
jeopardy
Same offense test 2) When the civil aspect is appealed
xxxthe conviction or acquittal of the accused or the  Double jeopardy only pertains
dismissal of the case shall be a bar to another to jeopardy of punishment for
prosecution for the offense charged, or for any the same offense. Double
attempt to commit the same or frustration thereof, jeopardy does not pertain to
or for any offense which necessarily includes or is
the civil aspect of the criminal
necessarily included in the offense charged in the
former complaint or information. case.
3) When the action is dismissed with the express
Same offense - identical offense or any attempt or consent of the accused
commit attempt or frustration to commit the same or 4) When the judgment is considered void
any offense charged, which necessarily includes or is 5) Where the prosecution is denied due process
106

 it amounts to merely a filed within the time specified in the order or within
continuation of the first such further time as the court may allow for good
Jeopardy and that does not cause, the accused, if in custody, shall be discharged
expose the accused to a second unless he is also in custody for another charge. (5a)
jeopardy.
6) The discharge of the accused to be a state Section 6. Order sustaining the motion to quash not a bar
witness to another prosecution; exception. — An order sustaining
GR: discharge of an accused to be a state the motion to quash is not a bar to another
prosecution for the same offense unless the motion
witness shall amount to an acquittal and shall
was based on the grounds specified in section 3 (g)
be a bar to a future prosecution for the same and (i) of this Rule. (6a)
offense
XPN: the accused fails or refuses to testify GR: if the motion to quash is sustained, meaning it was
against his co-accused in accordance with his granted by the court, the court may order that another
sworn statement constituting the basis for the complaint or information be filed
discharge. XPN: when it is grounded on double jeopardy or
extinction of criminal liability.
7) When the trial court commits grave abuse of
discretion in acquittal Effect when order is made
8) Where the court has no jurisdiction If the order is made, the accused, if in custody, shall be
9) When the information is defective or is not discharged unless he is admitted to bail.
valid
10) When the two offenses are different Effect when no order is made
11) When the case is dismissed on preliminary the accused, if in custody, shall be discharged unless he
investigation is also in custody for another charge.
 By reason of the abbreviated
nature of preliminary Period to make order
investigation, a dismissal of the extendable to such further time as the court may allow
charge as a result thereof is not for good cause
equivalent to a judicial
pronouncement of acquittal. Grounds which are not a bar to another prosecution
12) Administrative cases (a) That the facts charged do not constitute an offense;
13) Appeal of the accused of a judgment of (b) That the court trying the case has no jurisdiction
conviction over the offense charged;
(c) That the court trying the case has no jurisdiction
Quasi-offenses over the person of the accused;
When you charge a reckless imprudence, a quasi- (d) That the officer who filed the information had no
offense, reckless imprudence resulting to so and so, a authority to do so;
valid plea in that connection will already bar (e) That it does not conform substantially to the
prosecution of a similar offense which arose from the prescribed form;
same acts which constituted the first offense. (f) That more than one offense is charged except when
a single punishment for various offenses is prescribed
Where as a result of a vehicular accident, Ivler was by law;
charged before the MTC with two separate offenses (h) That it contains averments which, if true, would
in two information. First is reckless imprudence
constitute a legal excuse or justification; and
resulting in slight physical injuries for injury
sustained by the victim and reckless imprudence
resulting in homicide and damage property for the Section 8. Provisional dismissal. — A case shall not be
death of the victim's husband in the same vehicular provisionally dismissed except with the express
accident. consent of the accused and with notice to the
offended party.
When Ivler was convicted in the first quasi-offense,
it already barred any subsequent prosecution for the The provisional dismissal of offenses punishable by
same quasi-offense, regardless of its various imprisonment not exceeding six (6) years or a fine of
resulting acts. (Ivler v. Modesto-San Pedro) any amount, or both, shall become permanent one
(1) year after issuance of the order without the case
having been revived. With respect to offenses
Section 5. Effect of sustaining the motion to quash. — If
punishable by imprisonment of more than six (6)
the motion to quash is sustained, the court may
years, their provisional dismissal shall become
order that another complaint or information be filed
permanent two (2) years after issuance of the order
except as provided in section 6 of this rule. If the
without the case having been revived. (n)
order is made, the accused, if in custody, shall not be
discharged unless admitted to bail. If no order is
Section 9. Failure to move to quash or to allege any ground
made or if having been made, no new information is
therefor. — The failure of the accused to assert any
107

ground of a motion to quash before he pleads to the express consent of the detained accused
complaint or information, either because he did not provided that:
file a motion to quash or failed to allege the same in 1. The hearing in the case has been previously
said motion, shall be deemed a waiver of any twice postponed due to the non-appearance
objections based on the grounds provided for in of the essential witness, and both the witness
paragraphs (a), (b), (g), and (i) of section 3 of this and the offended party, if they are two different
Rule. (8) persons, have been given notice of the setting of
the case for third hearing, which note this contains
Provisional dismissal a warning that the case would be dismissed if the
That dismissal of a criminal action with the express essential witness continues to be absent.
consent of the accused and without prejudice to its 2. There is proof of service of the pertinent
revival within the period prescribed by the rules. notices of hearings or subpoenas upon the
essential witness and offended party at their last
known postal or email addresses or mobile phone
Requisites
numbers.
1) The accused must have given express consent
to the provisional dismissal; C) For the above purpose, the public or private
2) There must be notice to the offended party; prosecutors shall first present during the trial the
and essential witness or witnesses to the case before
3) The dismissal must be without prejudice to its anyone else. An essential witness is one whose
revival. testimony dwells on the presence of some or all of
the elements of the crime, and whose testimony is
When does the provisional dismissal become indispensable to the conviction of the accused.
permanent
1) offenses punishable by imprisonment not essential witness - is one whose testimony dwells on
exceeding six years, or a fine of any amount or the presence of some or all of the elements of the
both – 1 year after issuance of the order, crime, and whose testimony is indispensable to the
without the case being revived conviction of the accused.
2) offense punishable by imprisonment of more
than six years – 2 years after the issuance of GR: The provisional dismissal of a case does not
the order without the case having been revived operate as an acquittal since its dismissal was made
with the express consent of the accused. Thus, there
If the dismissal is made without notice to the is no double jeopardy. The state is presumed to have
offended party, the reglementary period does not abandoned or waived its right to revive the case and
begin to run. prosecute the accused.
XPN: if the prosecution actually has a justifiable

The time bar rule under Section 8, one year and two
reason for the delay in reviving the case, then the
years, does not reduce the periods under Article 90
court has the discretion to still revive it despite the
on the prescription of the crime. It is, however, a
lapse of the period set forth in Sec. 8 that could have
limitation on the right of the state to revive a
made the provisional dismissal permanent.
criminal case against the accused after the
information has been filed but subsequently
provisionally dismissed with the express consent of The inordinate delay in the revival or refiling of a
the accused. criminal case may impair or reduce the capacity of
the state to prove its case with the disappearance or
non-availability of its witnesses. Physical evidence
Administrative Matter 12- 11-2-SC
may have been lost, memories of witnesses may have
The Guidelines for Decongesting, Holding
grown dim or have faded. Passage of time makes
Jails by Enforcing the Rights of the Accused
proof of any fact more difficult. The accused may
Persons to Bail and to Speedy Trial
become a fugitive from justice or commit another
SECTION 10 crime. The longer the lapse of time from the
A) when the delays are due to the absence of an dismissal of the case to the revival thereof, the more
essential witness whose whereabouts are difficult it is to prove the crime.
unknown or cannot be determined, and therefore
are subject to exclusion in determining On the other side of the fulcrum, a mere provisional
compliance with the prescribed time limits which dismissal of a criminal case does not terminate a
cause the trial to exceed 180 days, the court criminal case. And the possibility that the case may
shall provisionally dismiss the action with the be revived at any time may disrupt or reduce, if not
express consent of the detained accuse derail the chances of the accused for employment,
curtail his association, and create anxiety in him and
B) When the delays are due to the absence of an his family. He is unable to lead a normal life because
essential witness whose presence cannot be of community suspicion and his own anxiety. He
obtained by due diligence, though is continues to suffer those penalties and disabilities
whereabouts are known, the court shall incompatible with the presumption of innocence.
provisionally dismiss the action with the He may also lose his witnesses or other memories
108

may fade with the passage of time. In the long run, 2) In the motion, the substance of the
it may diminish his capacity to defend himself and testimony of the proposed witness should
thus askew the fairness of the entire criminal justice be laid out.
system. (People v. Lacson) 3) There should be either one or any of these
reasons in order for the court to consider
Remedy of the accused if motion is denied whether or not to grant the application for the
GR: Not subject for petition for certiorari (the motion examination of the witness:
to quash is an interlocutory order) a) that the witness is sick or infirm;
XPN: grave abuse of discretion, which amounts to lack b) resides more than one hundred (100)
or excess of jurisdiction of the trial court kilometers from the place of trial and
has no means to attend the same, or
RULE 119 c) that other similar circumstances exist
TRIAL that would make him unavailable or
prevent him from attending the trial.
Discovery
Discovery under the procedure of the modes of Section 13. Examination of defense witness; how made. —
discovery in civil cases is the procedure by which one If the court is satisfied that the examination of a
party in an action is enabled to obtain, before trial, witness for the accused is necessary, an order will
knowledge of relevant facts and material evidence be made directing that the witness be examined at a
in the possession of the adverse party or of a specified date, time and place and that a copy of the
witness. Its rationale is to enable the parties to obtain order be served on the prosecutor at least three
the fullest possible knowledge of the issues and (3) days before the scheduled examination. The
evidence long before the trial to prevent such trial from examination shall be taken before a judge, or, if not
being carried on in the dark. practicable, a member of the Bar in good
standing so designated by the judge in the
Modes of discovery in criminal cases order, or if the order be made by a court of superior
jurisdiction, before an inferior court to be
Sections 12, 13, 15 of RULE 119 and Section 10 of
designated therein. The examination shall proceed
RULE 117
notwithstanding the absence of the prosecutor
provided he was duly notified of the hearing. A
Section 12. Application for examination of witness for written record of the testimony shall be taken. (5a)
accused before trial. — When the accused has been held
to answer for an offense, he may, upon motion with Section 14. Bail to secure appearance of material witness.
notice to the other parties, have witnesses — When the court is satisfied, upon proof or oath,
conditionally examined in his behalf. The motion that a material witness will not testify when
shall state: (a) the name and residence of the required, it may, upon motion of either party, order
witness; (b) the substance of his testimony; and (c) the witness to post bail in such sum as may be
that the witness is sick or infirm as to afford deemed proper. Upon refusal to post bail, the court
reasonable ground for believing that he will not shall commit him to prison until he complies or is
be able to attend the trial, or resides more than legally discharged after his testimony has been taken.
one hundred (100) kilometers from the place of (6a)
trial and has no means to attend the same, or that
other similar circumstances exist that would make
him unavailable or prevent him from attending the Section 15. Examination of witness for the prosecution. —
trial. The motion shall be supported by an affidavit When it satisfactorily appears that a witness for the
of the accused and such other evidence as the court prosecution is too sick or infirm to appear at the
may require. (4a) trial as directed by the order of the court, or has to
leave the Philippines with no definite date of
returning, he may forthwith be conditionally
Formal requirements
examined before the court where the case is
1) a motion; pending. Such examination, in the presence of the
2) notice to other parties of the motion. accused, or in his absence after reasonable notice to
3) there should be an affidavit of the accused, attend the examination has been served on him, shall
and such other evidence as the court may be conducted in the same manner as an
require to support the application or the examination at the trial. Failure or refusal of the
motion for examination of witness for the accused to attend the examination after notice shall
accused. be considered a waiver. The statement taken may be
admitted in behalf of or against the accused. (7a)
Substantive requirements
1) The motion shall state the name and Formal requirements
residence of the witness, in order for the court 1) for the prosecution to apply or to move for the
to properly notify the witness that he is being conditional examination of their witnesses,
called for to be examined as a witness for the (MOTION)
accused. 2) and to notify the accused. (NOTIFY)
109

Substantive requirements 2) notice to other 1) for the

1) the witness of the prosecution is too sick or parties of the prosecution to
infirm to appear, or motion. apply or to
2) he has to leave the Philippines with no definite 3) there should be move for the
date of returning. an affidavit of conditional
the accused, and examination of
such other their witnesses,
Examination of Examination of
evidence as the (MOTION)
defense witness prosecution witness
court may require 2) and to notify
Substantive Substantive
to support the the accused.
requirements requirements
application or the (NOTIFY)
4) The motion shall 1) the witness of
motion for
state the name the prosecution
examination of
and residence of is too sick or
witness for the
the witness, in infirm to
accused.
order for the appear, or
3-day notice rule No express 3-day
court to properly 2) he has to leave
notice rule; it is
notify the witness the Philippines
submitted that
that he is being with no definite
reasonable time would
called for to be date of
be around three days, so
examined as a returning.
the accused should be
witness for the
notified at least three
accused.
days before the
5) In the motion, the
examination.
substance of the
The examination shall be should be conducted in
testimony of the
taken before a judge, or, the same manner as an
proposed
if not practicable, a examination at the trial;
witness should
member of the Bar in before the judge in
be laid out.
good standing so court
6) There should be
designated by the judge
either one or any
in the order, or if the
of these reasons
order be made by a court
in order for the
of superior jurisdiction,
court to consider
before an inferior court
whether or not to
to be designated therein.
grant the
application for
the examination RULE 116
of the witness: Section 10. Production or inspection of material evidence in
d) that the possession of prosecution. — Upon motion of the
witness is sick accused showing good cause and with notice to
or infirm; the parties, the court, in order to prevent surprise,
e) resides more suppression, or alteration, may order the
than one prosecution to produce and permit the inspection
hundred and copying or photographing of any written
(100) statement given by the complainant and other
kilometers witnesses in any investigation of the offense
from the conducted by the prosecution or other investigating
place of trial officers, as well as any designated documents,
and has no papers, books, accounts, letters, photographs,
means to objects or tangible things not otherwise privileged,
attend the which constitute or contain evidence material to any
same, or matter involved in the case and which are in the
f) that other possession or under the control of the prosecution,
similar police, or other law investigating agencies. (11a)
circumstances
exist that Section 11. Suspension of arraignment. — Upon motion
would make by the proper party, the arraignment shall be
him suspended in the following cases:
unavailable or
prevent him (a) The accused appears to be suffering from an
from unsound mental condition which effective renders
attending the him unable to fully understand the charge against
trial. him and to plead intelligently thereto. In such case,
Formal requirements Formal requirements the court shall order his mental examination and, if
1) a motion; necessary, his confinement for such purpose;
110

(b) There exists a prejudicial question; and Trial - judicial examination and determination of
(c) A petition for review of the resolution of the issues between parties to action, whether they be issues
prosecutor is pending at either the Department of of law or of fact before a court that has jurisdiction.
Justice, or the Office of the President; provided, that
the period of suspension shall not exceed sixty (60) Preparation – 15 days after plea of not guilty
days counted from the filing of the petition with the Commencement – 30 days after pre-trial order
reviewing office. (12a)
Modes of discovery in civil cases

RULES 23- 28 therein
The modes of discovery under the amended Rules of

Civil Procedure may be made applicable to the civil
aspect of that criminal case being handled by the court.
Trial in absentia
After the accused has been arraigned and has entered
Rule 23 – Deposition Spending actions
his plea, there can be a trial in absentia, if the accused:
Deposition - is a testimony of a witness taken upon oral
1) has already been arraigned;
question or written interrogatories, not in open court,
2) has already been duly notified of the trial; and
but in pursuance of a commission to take testimony
3) his failure to appear is unjustifiable.
issued by a court, or under a general law or court rule
on the subject, and reduced to writing and duly
Escapee
authenticated, and intended to be used in preparation
When after he has already been arraigned, he escapes,
and upon the trial of a civil or criminal prosecution. It
he shall be deemed to have waived his right to be
is a pretrial discovery device by which one party
present on said date and all subsequent trial dates until
(through his or her attorney) asks oral questions of the
custody of him is redeemed.
other party or of a witness for the other party. The
person who is deposed is called the deponent. The
Section 2. Continuous trial until terminated;
deposition is conducted under oath outside of the
postponements. — Trial once commenced shall
court room, usually in one of the lawyer’s offices. continue from day to day as far as practicable until
terminated. It may be postponed for a reasonable
Rule 24 – Depositions before action or pending appeal period of time for good cause. (2a)
Rule 25 - details on how parties can elicit material and
relevant facts through interrogatory The court shall, after consultation with the
Rule 26 – admission by a party prosecutor and defense counsel, set the case for
Rule 27 – production or inspection of documents or continuous trial on a weekly or other short-term trial
things calendar at the earliest possible time so as to ensure
Rule 28 - physical and mental examination of persons speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the
Civil Procedure applies to all actions, whether civil first day of trial, except as otherwise authorized
or criminal and special proceedings. by the Supreme Court. (sec. 8, cir. 38-98).
While the modes of discovery under the amended The time limitations provided under this section and
Rules of Civil Procedure are applied to the civil the preceding section shall not apply where special
aspect in appropriate cases, in cases where the laws or circulars of the Supreme Court provide
modes of discovery are geared towards for a shorter period of trial. (n)
discovery of evidence and facts as to the
criminal aspect, then it's the provisions on the Postponements
modes of discovery in Revised Rules of Criminal GR: Motions for postponements are granted only
Procedure that will govern. (Vda. de Manguerra v. upon meritorious grounds, and no party has the right
Risos) to assume that his motion will be granted.
XPN:
The use of discovery procedures is directed to Good causes
the sound discretion of the trial judge, the 1) calendar of the court
deposition taking cannot be based nor can it be 2) consideration for clogging of courts
denied on flimsy reasons. (People v. Hubert
Webb) Amendments
Take note of the time limitation under section 2
Section 1. Time to prepare for trial. — After a plea of because the trial period has already been presently
not guilty is entered, the accused shall have at least limited to just 80 days under section 6 of Rule 119. For
fifteen (15) days to prepare for trial. The trial shall drug cases, it should be finished by the court not later
commence within thirty (30) days from receipt of
than 60 days from the date of the filing of the
the pre-trial order. (sec. 6, cir. 38-98)
111

information based on section 90 of Republic Act 9165

(The Comprehensive Dangerous Drugs Act of 2002). a) Any period of delay resulting from other
proceedings concerning the accused, including
Section 3. Exclusions. — The following periods of but not limited to the following:
delay shall be excluded in computing the time within (1) Delay resulting from an examination of the
which trial must commence: physical and mental condition of the accused;
(a) Any period of delay resulting from other (a) Any period of delay resulting from other
proceedings concerning the accused, including proceedings concerning the accused, including
but not limited to the following: but not limited to the following:
(1) Delay resulting from an examination of the (2) Delay resulting from proceedings with respect to
physical and mental condition of the accused; other criminal charges against the accused;
(2) Delay resulting from proceedings with respect to
other criminal charges against the accused; (a) Any period of delay resulting from other
(3) Delay resulting from extraordinary remedies proceedings concerning the accused, including
against interlocutory orders; but not limited to the following:
(4) Delay resulting from pre-trial proceedings; (3) Delay resulting from extraordinary remedies
provided, that the delay does not exceed thirty (30) against interlocutory orders;
days;
(5) Delay resulting from orders of inhibition, or Interlocutory order - is an order which does not
proceedings relating to change of venue of cases or dispose of the case on the merits and then when it is
transfer from other courts; raised to the appellate court, or to the reviewing court,
(6) Delay resulting from a finding of the existence of
the court issues a temporary restraining order or an
a prejudicial question; and
(7) Delay reasonably attributable to any period, not injunction.
exceed thirty (30) days, during which any proceeding
which any proceeding concerning the accused is The trial court will have to abide by that order of the
actually under advisement. higher court and the delay in the commencing or in
proceeding with the trial should be excluded from
(b) Any period of delay resulting from the absence the period to be counted to commence or to finish
or unavailability of an essential witness. the trial.
For purposes of this subparagraph, an essential (a) Any period of delay resulting from other
witness shall be considered absent when his proceedings concerning the accused, including
whereabouts are unknown or his whereabouts but not limited to the following:
cannot be determined by due diligence. He shall be (4) Delay resulting from pre-trial proceedings;
considered unavailable whenever his whereabouts provided, that the delay does not exceed thirty (30)
are known but his presence for trial cannot be days;
obtained by due diligence.
(a) Any period of delay resulting from other
(c) Any period of delay resulting from the mental proceedings concerning the accused, including
incompetence or physical inability of the accused to but not limited to the following:
stand trial. (5) Delay resulting from orders of inhibition, or
proceedings relating to change of venue of cases
(d) If the information is dismissed upon motion of or transfer from other courts;
the prosecution and thereafter a charge is filed
against the accused for the same offense, any period
of delay from the date the charge was dismissed to (a) Any period of delay resulting from other
the date the time limitation would commence to run proceedings concerning the accused, including
as to the subsequent charge had there been no but not limited to the following:
previous charge. (6) Delay resulting from a finding of the existence
of a prejudicial question; and
(e) A reasonable period of delay when the accused is
joined for trial with a co-accused over whom the (a) Any period of delay resulting from other
court has not acquired jurisdiction, or, as to whom proceedings concerning the accused, including
the time for trial has not run and no motion for but not limited to the following:
separate trial has been granted. (7) Delay reasonably attributable to any period, not
exceed thirty (30) days, during which any
(f) Any period of delay resulting from a continuance proceeding concerning the accused is actually
granted by any court motu proprio, or on motion of under advisement.
either the accused or his counsel, or the prosecution,
if the court granted the continuance on the basis of (b) Any period of delay resulting from the absence
its findings set forth in the order that the ends of or unavailability of an essential witness.
justice served by taking such action outweigh the
best interest of the public and the accused in a For purposes of this subparagraph, an essential
witness shall be considered absent when his
112
speedy trial. (sec. 9, cir. 38-98)

whereabouts are unknown or his whereabouts Revised Guidelines

cannot be determined by due diligence. He shall be (d) Motion for postponement – A motion for
considered unavailable whenever his whereabouts postponement is prohibited, except if it is based on
are known but his presence for trial cannot be acts of God, force majeure or physical inability of the
obtained by due diligence. witness to appear and testify. If the motion is granted
based on such exceptions, the moving party shall be
Requisites on absence of witness warned that the presentation of its evidence must still
1) The witness is really material or essential and be finished on the dates previously agreed upon.
appears to the court to be so.
2) That there be that the party who applies for REVISED GUIDELINES ON CONTINUOUS
postponement has not been guilty of TRIAL FOR CRIMINAL CASES
neglect. 11. Form of testimony
3) That the witness can be had at the time to First level courts - duly subscribed written
which the trial has been deferred statements given to law enforcers or peace officers
4) That no similar evidence could be obtained. where the affidavits or counter-affidavits are submitted
before the investigating prosecutor. If such are not
(c) Any period of delay resulting from the mental available, it shall be in the form of judicial affidavit
incompetence or physical inability of the accused to subject to additional to direct and cross-examination.
stand trial.
(d) If the information is dismissed upon motion of subscribed written statements > affidavits > judicial
the prosecution and thereafter a charge is filed affidavits
against the accused for the same offense, any period
of delay from the date the charge was dismissed to Second level courts - all criminal cases where the
the date the time limitation would commence to run demeanor of the witness is not essential in
as to the subsequent charge had there been no determining the credibility of witnesses, may be
previous charge. written
- duly subscribed written statements given to law
(e) A reasonable period of delay when the accused is enforcers or peace officers where the affidavits or
joined for trial with a co-accused over whom the counter-affidavits are submitted before the
court has not acquired jurisdiction, or, as to investigating prosecutor. If such are not available, it
whom the time for trial has not run and no motion shall be in the form of judicial affidavit subject to
for separate trial has been granted. additional to direct and cross-examination.
XPN: if the court determines that an eyewitness has to
(f) Any period of delay resulting from a
testify and the court needs to see his demeanor to
continuance granted by any court motu proprio,
or on motion of either the accused or his determine his credibility, then the direct testimony
counsel, or the prosecution, if the court granted and the cross-examination of that witness shall be
the continuance on the basis of its findings set forth in open court and in oral form.
in the order that the ends of justice served by taking
such action outweigh the best interest of the public Section 5. Time limit following an order for new trial. —
and the accused in a speedy trial. (sec. 9, cir. 38-98) If the accused is to be tried again pursuant to an
order for a new trial, the trial shall commence
Section 4. Factors for granting continuance. — The within thirty (30) days from notice of the order,
following factors, among others, shall be considered provided that if the period becomes impractical due
by a court in determining whether to grant a to unavailability of witnesses and other factors, the
continuance under section 3(f) of this Rule. court may extend it but not to exceed one hundred
eighty (180) days from notice of said order for a new
(a) Whether or not the failure to grant a continuance trial. (sec. 11, cir. 38-98)
in the proceeding would likely make a
continuation of such proceeding impossible or Grounds for new trial
result in a miscarriage of justice; and 1) Errors of law are irregularities prejudicial to the
(b) Whether or not the case taken as a whole is so substantial rights of the accused has been
novel, unusual and complex, due to the number committed during the trial.
of accused or the nature of the prosecution, or 2) New and material evidence have been
that it is unreasonable to expect adequate discovered which the accused could not, with
preparation within the periods of time reasonable diligence, have discovered and
established therein.
produced during the trial which when
In addition, no continuance under section 3(f) of this introduced would probably change the
Rule shall be granted because of congestion of the judgement.
court's calendar or lack of diligent preparation or
failure to obtain available witnesses on the part of Section 6. Extended time limit. — Notwithstanding
the prosecutor. (sec. 10, cir. 38-98) the provisions of section 1(g), Rule 116 and the
preceding section 1, for the first twelve-calendar-
113

month period following its effectivity on (2) By imposing on any appointed counsel de
September 15, 1998, the time limit with respect to oficio, public attorney, or prosecutor a fine not
the period from arraignment to trial imposed by said exceeding five thousand pesos (P5,000.00); and
provision shall be one hundred eighty (180) days. (3) By denying any defense counsel or prosecutor the
For the second twelve-month period, the limit shall right to practice before the court trying the case
be one hundred twenty (120) days, and for the third for a period not exceeding thirty (30) days. The
twelve-month period, the time limit shall be eighty punishment provided for by this section shall be
(80) days. (sec. 7, cir. 38-98) without prejudice to any appropriate criminal
action or other sanction authorized under these
Section 7. Public attorney's duties where accused is rules. (sec. 13, cir. 38-98)
imprisoned. — If the public attorney assigned to
defend a person charged with a crime knows that Section 9. Remedy where accused is not brought to trial
the latter is preventively detained, either because within the time limit. — If the accused is not brought
he is charged with a bailable crime but has no to trial within the time limit required by Section 1(g),
means to post bail, or, is charged with a non- Rule 116 and Section 1, as extended by Section 6 of
bailable crime, or, is serving a term of this rule, the information may be dismissed on
imprisonment in any penal institution, it shall be motion of the accused on the ground of denial
his duty to do the following: of his right of speedy trial. The accused shall have
the burden of proving the motion but the
(a) Shall promptly undertake to obtain the presence prosecution shall have the burden of going forward
of the prisoner for trial or cause a notice to be served with the evidence to establish the exclusion of time
on the person having custody of the prisoner under section 3 of this rule. The dismissal shall be
requiring such person to so advise the prisoner of subject to the rules on double jeopardy.
his right to demand trial.
(b) Upon receipt of that notice, the custodian of the Failure of the accused to move for dismissal prior to
prisoner shall promptly advise the prisoner of the trial shall constitute a waiver of the right to
charge and of his right to demand trial. If at anytime dismiss under this section. (sec. 14, cir. 38-98)
thereafter the prisoner informs his custodian that he
demands such trial, the latter shall cause notice to If the case is dismissed, it will be immediately final and
that effect to sent promptly to the public attorney. executory and the first jeopardy will attach that if you
(c) Upon receipt of such notice, the public attorney will file the same criminal case, double jeopardy will
shall promptly seek to obtain the presence of the arise.
prisoner for trial.
(d) When the custodian of the prisoner receives
Burden of proof
from the public attorney a properly supported
request for the availability of the prisoner for Accused - burden of proving the motion for dismissal
purposes of trial, the prisoner shall be made available Prosecution - burden of going forward with the
accordingly. (sec. 12, cir. 38-98) evidence to establish the exclusion of time under
section 3 of Rule 119
This rule just iterates the responsibility or the duty of
the public attorney, to inform and of course, to assist Effect of failure of the accused to move for
the person accused of a crime to demand for trial. dismissal
Shall constitute a waiver of the right to dismiss under
Section 8. Sanctions. — In any case in which private this Section
counsel for the accused, the public attorney, or the
prosecutor. Section 10. Law on speedy trial not a bar to provision on
speedy trial in the Constitution. — No provision of law
(a) Knowingly allows the case to be set for trial on speedy trial and no rule implementing the same
without disclosing that a necessary witness would shall be interpreted as a bar to any charge of denial
be unavailable for trial; of the right to speedy trial guaranteed by section
(b) Files a motion solely for delay which he knows 14(2), article III, of the 1987 Constitution. (sec. 15,
is totally frivolous and without merit; cir. 38-98)
(c) Makes a statement for the purpose of obtaining
continuance which he knows to be false and Speedy trial - one conducted according to law,
which is material to the granting of a criminal procedure, and rules and regulations free from
continuance; or vexatious, capricious and oppressive delays.
(d) Willfully fails to proceed to trial without
justification consistent with the provisions hereof, The invocation of the statutory right to speedy trial
the court may punish such counsel, attorney, or
shall not be interpreted as a bar charge of denial of the
prosecution, as follows:
constitutional right to speedy trial.
(1) By imposing on a counsel privately retained in
connection with the defense of an accused, a fine Effect of the violation of the right to speedy trial
not exceeding twenty thousand pesos if the accused is not brought to trial within the time
(P20,000.00); limit, the complaint or information may be dismissed
114

on motion of the accused on the grounds of denial of Section 1. Availability of provisional remedies. —
his right to speedy trial. The provisional remedies in civil actions, insofar as
they are applicable, may be availed of in connection
Unjustified postponements with the civil action deemed instituted with the
Unjustified postponements, which prolong the trial for criminal action. (1a)
an unreasonable length of time, are what offend the
right of the accused to speedy trial. The right to speedy A party is required to make his or her oral offer of
trial allows reasonable continuance so as not to deprive evidence on the same day after the presentation of his
the prosecution of its day in court. or her last witness and the opposing party is required
to immediately interpose his or her oral comment or
Balancing test – The test is done by counting the objection thereto.
delay from the time of the filing of the information
and the conduct of both the prosecution and the Written memoranda
accused is weighed and the ff factors are considered: In case the court directs them to file a written
1) The length of delay memoranda, the court will usually give the parties a
2) Reason for the delay – most important timeframe. It would either be 15 days
3) Assertion or non-assertion of the right 1) from notice, or
to speedy trial 2) from the time the last witness or last hearing
4) The prejudice that it has caused the
accused on the delay Oral argument
usually after the hearing of the oral arguments
The right to speedy trial may be raised at different
times in the criminal proceedings Reverse trial order
So long as in these different times, there are different  not mandatory
reasons.  defense will present evidence first
 court has the discretion
The Ombudsman procedures are now excluded
from the computation of the length of delay Provisional remedies
Subsequently, the Supreme Court promulgated a RULE 127
jurisprudence which states that the period of Section 2. Attachment. — When the civil action is
preliminary examination/preliminary investigation in properly instituted in the criminal action as provided
the Ombudsman cannot be taken into account in in Rule 111, the offended party may have the
determining the length of delay of a particular criminal property of the accused attached as security for
case. the satisfaction of any judgment that may be
recovered from the accused in the following cases:
Section 11. Order of trial. — The trial shall proceed
(a) When the accused is about to abscond from the
in the following order:
Philippines;
(b) When the criminal action is based on a claim
(a) The prosecution shall present evidence to
for money or property embezzled or
prove the charge and, in the proper case, the civil
fraudulently misapplied or converted to the use
liability.
of the accused who is a public officer, officer of a
(b) The accused may present evidence to prove
corporation, attorney, factor, broker, agent, or clerk,
his defense, and damages, if any, arising from the
in the course of his employment as such, or by any
issuance of a provisional remedy in the case.
other person in a fiduciary capacity, or for a willful
(c) The prosecution and the defense may, in that
violation of duty;
order, present rebuttal and sur-rebuttal evidence
(c) When the accused has concealed, removed, or
unless the court, in furtherance of justice, permits
disposed of his property, or is about to do so; and
them to present additional evidence bearing upon
(d)When the accused resides outside the
the main issue.
Philippines. (2a)
(d) Upon admission of the evidence of the parties,
the case shall be deemed submitted for decision
unless the court directs them to argue orally or * since this provisional remedies will be in relation to
to submit written memoranda. the civil aspect, if it is not deemed instituted in the
(e) When the accused admits the act or omission criminal case, then you cannot avail of the provisional
charged in the complaint or information but remedies*
interposes a lawful defense, the order of trial may
be modified. (3a) Bail hearing
Section 8. The evidence presented during the bail
In asking provisional remedies, usually the order of trial hearing shall be considered automatically
will not be followed. reproduced at the trial. But upon motion of either
party, the court may recall any witness for
RULE 127 additional examination unless the latter is dead
115

outside the Philippines or otherwise unable to Section 17. Discharge of accused to be state witness. —
testify. When two or more persons are jointly charged with
the commission of any offense, upon motion of the
Counterclaim, cross-claim or third-party prosecution before resting its case, the court may
complaint direct one or more of the accused to be discharged
No counterclaim, cross-claim or third-party with their consent so that they may be witnesses for
complaint may be filed by the accused in the criminal the state when, after requiring the prosecution to
case, but any cause of action which could have been present evidence and the sworn statement of each
the subject thereof may be litigated in a separate civil proposed state witness at a hearing in support of the
action. discharge, the court is satisfied that:
Non-inclusion of eyewitnesses (a) There is absolute necessity for the testimony

of the accused whose discharge is requested;
The non-inclusion of some of the names of the
(b) The is no other direct evidence available for
eyewitnesses in the information does not preclude the the proper prosecution of the offense committed,
prosecutor from presenting them during trial. The except the testimony of said accused;
enumeration of witnesses in the information is not (c) The testimony of said accused can be
necessarily exhaustive. It is not meant to absolutely substantially corroborated in its material points;
limit or lessen the prerogative of the prosecutor, (d) Said accused does not appear to be the most
prosecutor guilty; and
(e) Said accused has not at any time been
Participation of the judge during the trial convicted of any offense involving moral
Judges have as much interest as counsel in the orderly turpitude.
and expeditious presentation of evidence and have the
duty to ask questions that would elicit the facts and the Evidence adduced in support of the discharge shall
automatically form part of the trial. If the court
issues involved, clarify ambiguous remarks by
denies the motion for discharge of the accused as
witnesses and address the points that are overlooked
state witness, his sworn statement shall be
by counsel. inadmissible in evidence. (9a)
Our system is more of accusatory rather than Modes of becoming a state witness
inquisitorial. However, the questioning by the judge is 1) Either the discharge under Section 17,
not in any way and move to an inquisitorial form, it is 2) By the approval of the application for
merely to make sure that facts are clarified. He is admission into the witness protection program
allowed a reasonable leeway in putting questions to of the Department of Justice in accordance
witnesses as may be essential to elicit relevant facts to with Republic Act 6981.
make the record speak the truth.
* the determination of who should be under the
Section 16. Trial of several accused. — When two or witness protection program and who should be
more accused are jointly charged with any offense, discharged as witness will be the discretion of the
they shall be tried jointly unless the court, in its
prosecution.
discretion and upon motion of the prosecutor or any
*whether to discharge or not is discretionary upon the court
accused, orders separate trial for one or more
accused. (8a) *the determination of who comes under the witness
protection program solely will be with the DOJ
Rules
1) When two or more accused or jointly charged Discharge hearing, exception
in any offense, joint trial is automatic without 1) If already a witness of the state under the
need of any court order. witness protection program, then the provision
2) Court may, in its discretion and upon motion of Section 17 Rule 119 will no longer apply.
of the prosecutor or any accused, orders 2) Where after the filing of the case in court, it
separate trial for one or more accused. was determined that one is a qualified person
3) Court may grant a separate trial for those to be in the witness protection program. Aside
persons where the court has already acquired from complying with the witness protection
jurisdiction over their person. program under Republic Act 6981, Section 17
4) If it appears that several accused have different must also be complied.
defenses, which may be antagonistic to
each other, in the interest of justice, a separate Q: Is it possible that two witnesses or two accused,
trial may be granted even after the prosecution maybe discharge a state witness?
has finished presenting its evidence in chief. A: Yes, so long as the factors that are provided under
5) The grant or denial of a separate trial is Section 17 are present.
discretionary upon the court and will be based
on the circumstances of each case. Section 18. Discharge of accused operates as acquittal. —
The order indicated in the preceding section shall
116

amount to an acquittal of the discharged accused 2) On motion of accused - exclude the public
and shall be a bar to future prosecution for the from the trial, except court personnel and the
same offense, unless the accused fails or refuses counsel of the parties.
to testify against his co-accused in accordance
with his sworn statement constituting the basis
for the discharge. (10a) Section 22. Consolidation of trials of related offenses. —
Charges for offenses founded on the same facts or
Section 19. When mistake has been made in charging the forming part of a series of offenses of similar
proper offense. — When it becomes manifest at any character may be tried jointly at the discretion of
time before judgment that a mistake has been the court. (14a)
made in charging the proper offense and the
accused cannot be convicted of the offense Consolidation - the act or process of uniting several
charged or any other offense necessarily actions into one trial or judgment by order of the
included therein, the accused shall not be
Court where all actions are between the same parties
discharged if there appears good cause to detain
him. In such case, the court shall commit the pending in the same court and involving substantially
accused to answer for the proper offense and the same issues and defenses or the court may order
dismiss the original case upon the filing of the that one of the actions be tried and the other be
proper information. (11a) decided without trial according to the judgment in the
one selected. The purpose of consolidation is to avoid
Application multiplicity of suits, guards against oppression or
This applies when the offense proved is different from abuse, prevent delay, clear congested docket and
the offense charged. And such offense proved is not simplify the work of the trial court and save
necessarily included in the offense charged. unnecessary cost or expense. In short, the attainment
of justice with the least expense and vexation to the
Section 20. Appointment of acting prosecutor. — When parties and litigants.
a prosecutor, his assistant or deputy is disqualified to
act due to any of the grounds stated in section 1 of When there is duty to consolidate
Rule 137 or for any other reasons, the judge or the When two crimes charged in the information filed
prosecutor shall communicate with the Secretary of before two different courts where irrefutably linked
Justice in order that the latter may appoint an acting with or related to one another as they arose from the
prosecutor. (12a) same incident and were founded on the same factual
milieu and would be proven by the same testimony of
RULE 137 the same witnesses, it was held that those cases should
Section 1. Disqualification of judges. — No judge or have been consolidated and jointly tried in one
judicial officer shall sit in any case in which he, or his branch of the court.
wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to
either party within the sixth degree of consanguinity Section 23. Demurrer to evidence. — After the
or affinity, or to counsel within the fourth degree, prosecution rests its case, the court may dismiss
computed according to the rules of the civil law, or the action on the ground of insufficiency of
in which he has been executor, administrator, evidence
guardian, trustee or counsel, or in which he has been (1) on its own initiative after giving the prosecution
presided in any inferior court when his ruling or the opportunity to be heard or
decision is the subject of review, without the written (2) upon demurrer to evidence filed by the
consent of all parties in interest, signed by them and accused with or without leave of court.
entered upon the record.
If the court denies the demurrer to evidence filed
A judge may, in the exercise of his sound discretion, with leave of court, the accused may adduce
disqualify himself from sitting in a case, for just or evidence in his defense. When the demurrer to
valid reasons other than those mentioned above. evidence is filed without leave of court, the
accused waives the right to present evidence and
submits the case for judgment on the basis of the
Section 21. Exclusion of the public. — The judge may, evidence for the prosecution. (15a)
motu proprio, exclude the public from the courtroom
if the evidence to be produced during the trial is The motion for leave of court to file demurrer to
offensive to decency or public morals. He may also, evidence shall specifically state its grounds and
on motion of the accused, exclude the public from shall be filed within a non-extendible period of five
the trial, except court personnel and the counsel (5) days after the prosecution rests its case. The
of the parties. (13a) prosecution may oppose the motion within a non-
extendible period of five (5) days from its
1) Court, motu proprio - exclude the public receipt.
from the courtroom if the evidence to be
produced during the trial is offensive to If leave of court is granted, the accused shall file
decency or public morals. the demurrer to evidence within a non-extendible
117

period of ten (10) days from notice. The which were not formally offered in evidence cannot in
prosecution may oppose the demurrer to evidence any manner be treated as evidence.
within a similar period from its receipt.
When rule of offer of evidence is relaxed
The order denying the motion for leave of court to 1) the evidence was duly identified by the
file demurrer to evidence or the demurrer itself shall testimony duly recorded.
not be reviewable by appeal or by certiorari 2) the evidence was incorporated in the records of
before judgment. (n)
the case
Demurrer to evidence
Based on evidence of the prosecution
An objection by one of the parties in an action to the
Although a demurrer to evidence must be resolved
effect that the evidence, which his adversary produce
based on the evidence of the prosecution. There is
is insufficient in point of law, whether true or not to
nothing in the rules which would bar the court from
make out a case or sustained the issue. The party the
taking cognizance of any other matters taken up during
emerging challenges the sufficiency of the whole
the trial or which has become part of the records of the
evidence to sustain a verdict.
case.
A demurrer to evidence is actually a motion to dismiss
Q: What this is a remedy against a denial of a
that is filed by the accused after the prosecution has
demurrer?
rested its case. Thus, demurrer to evidence file before
A: The appropriate recourse from an order denying a
the prosecution rested its case is premature.
demurrer to evidence is for the court to
1) proceed with the trial,
When considered sufficient
2) after which the accused may file an appeal from
Evidence must prove
the judgment of the lower court rendered after
1) the commission of the crime and
such trial.
2) the precise degree of participation there in
by the accused.
When such an adverse interrogatory order is rendered,
the remedy is in absence of grave abuse of
Leave of court
discretion or excess of jurisdiction, or an
A legal term used to describe asking the court
oppressive exercise of judicial authority, not to
permission to do something that the court doesn’t
resort to certiorari or prohibition but to continue with
normally allow according to its rules and procedures.
the case in due course, and when an unfair
Either party can file this motion, which is often called
favorable verdict is handed down to take an appeal
a motion for leave.
in the manner authorized by law.
Effect of leave of court
1) With leave of court - present his evidence and
1) demurrer with leave of court - If the court
thereafter take an appeal from the judgment of
denies the demurrer to evidence filed with
conviction
leave of court, the accused may adduce
2) Without leave of court - may interpose an
evidence in his defense.
appeal from the judgment of conviction
2) demurrer without leave of court - When the
rendered by the trial court after the denial of
demurrer to evidence is filed without leave of
his demurrer.
court, the accused waives the right to present
evidence and submits the case for judgment on
The rule generally prevailing is that certiorari does not
the basis of the evidence for the prosecution.
lie to review a trial court's interlocutory order denying
a demurrer to evidence.
Period
1) Motion for leave of court - non-extendible
Q: What if the demurrer to evidence is filed by one
period of five (5) days after the prosecution
of several accused?
rests its case. The prosecution may oppose
A: When one of several accused files a demurrer to
the motion within a non-extendible period
evidence with leave of court. It is sound practice for
of five (5) days from its receipt.
the trial court to resolve the demurrer to evidence
2) Demurrer to evidence - non-extendible
before proceeding with a trial for the other accused.
period of ten (10) days from notice. The
The rationale for this is that the accused filing of the
prosecution may oppose the demurrer to
demurrer does not waive his right to present this
evidence within a similar period from its
evidence in the event of the denial of his demurrer.
receipt.
Section 24. Reopening. — At any time before finality
Q: What is the effect of a lack of formal offer of
of the judgment of conviction, the judge may,
evidence during trial?
motu proprio or upon motion, with hearing in
A: documents, which may have been identified and either case, reopen the proceedings to avoid a
118
marked as exhibits during the pre-trial or trial, but

miscarriage of justice. The proceedings shall be 2) personally and directly prepared by the judge
terminated within thirty (30) days from the order and signed by him - To be valid, the judgment
grating it. (n) must be signed and promulgated during the
incumbency of the judge who signed the same.
Reopening of a case - one to permit the introduction
of new evidence and practically to permit a new trial. The efficacy of the decision or the judgment is not
necessarily impaired by the fact that the ponente, the
Period one who pens the judgment only took over from
Any time before the judgment of conviction becomes another judge who had earlier presided over the trial,
final. This presupposes a situation where the judgment for it does not follow that a judge who was not
has been promulgated in the proceedings shall be present during the trial cannot render a valid and just
terminated within 30 days from the order granting the decision.
reopening.
3) contain clearly and distinctly a statement of the
Who may file facts and the law upon which it is based
1) May be filed by either party
2) The reopening based on the rules may also be Function
made at the instance of the court. But in any 1) to inform the parties of their case, or their
case, there must be a hearing conducted for the reasons for the decision so that if any of them
purpose of determining the propriety of such appeals, he can point out to the appellate court
reopening. the findings of facts or their rulings on points
3) A case may be open before the rendition of of law which he disagrees with.
judgment without the consent of the 2) assurance to the parties that in reaching a
accused. judgment, the judge did so through the process
of legal reasoning.
Motion for new trial Motion for reopening
may only be filed by the May be had on the Date of submission
accused or granted with motion by either party or The 1987 Constitution provides under Section 15 (1),
his consent motu proprio by the Article 8, that unless reduced by the Supreme Court, all
court. lower courts other than a collegial court must decide or
governed by Rule 121 of governed by Section 24, resolve matters within three months from the date of
the Rules Rule 119 submission.
may be applied for and controlled by no other
granted only upon rule than that of the Submission - Upon filing of last pleading
specific well-defined paramount interests of
grounds, justice, that is to avoid a When judgment was rendered beyond the three-
miscarriage of justice. month period
Those decisions or judgment are valid. However, it will
RULE 120 be the judges that failed to render the decision within
JUDGMENT
that period who will be sanctioned. The rendition of
the judgment beyond the periods provided for under
Section 1. Judgment definition and form. — Judgment is
the Constitution will not invalidate the judgment.
the adjudication by the court that the accused is
guilty or not guilty of the offense charged and the
imposition on him of the proper penalty and civil Cases under the Rule on Summary Procedure
liability, if any. It must be written in the official 30 days following the receipt of the last affidavit
language, personally and directly prepared by the and position paper or the expiration of the period for
judge and signed by him and shall contain clearly and filing the same within which to render the judgment.
distinctly a statement of the facts and the law upon
which it is based. (1a) Drug cases
The decision shall be rendered by the trial court within
Judgment - final consideration in determination of a 15 days from the date of the submission of the case
court of competent jurisdiction upon the matters for resolution.
submitted to it in an action or proceeding.
Section 2. Contents of the judgment. — If the judgment
It is the adjudication by the court that the accused is is of conviction, it shall state
guilty or not guilty of the offense charged and the (1) the legal qualification of the offense
imposition on him of the proper penalty and civil constituted by the acts committed by the accused
liability, if any. and the aggravating or mitigating circumstances
which attended its commission;
Form (2) the participation of the accused in the offense,
1) written in the official language whether as principal, accomplice, or accessory after
the fact;
119

(3) the penalty imposed upon the accused; and GR: An affidavit of desistance by itself, is not a ground for
(4) the civil liability or damages caused by his the dismissal of a criminal case, after the institution of the
wrongful act or omission to be recovered from the action.
accused by the offended party, if there is any, unless
the enforcement of the civil liability by a separate Motion/Action In CONSENT SIGN NOTICE
writing?
civil action has been reserved or waived. Motion to quash YES Accused
or
In case the judgment is of acquittal, it shall state Counsel
Pre-trial YES Accused
whether the evidence of the prosecution absolutely and
failed to prove the guilt of the accused or merely Counsel
failed to prove his guilt beyond reasonable doubt. In Provisional MUST BE Offended
dismissal EXPRESS; party
either case, the judgment shall determine if the act Accused
or omission from which the civil liability might arise Judgment YES Judge
did not exist. (2a) New trial or YES Accused
reconsideration
Dismissal of Appellant
Proof beyond reasonable doubt appeal
To be considered sufficient, evidence must prove:
1) The commission of the crime; and Motion/Action Considered as
2) The precise degree of the participation of the acquittal?
accused therein. Discharge of accused YES
Demurrer to evidence YES
GR: Conviction must be by virtue of direct evidence Violation of right to YES
XPN: Supreme Court has pronounced that conviction speedy trial
of an accused through circumstantial evidence as long Provisional dismissal NO
as the following requisites or presence may be had:
(1) That there must be more than one circumstance; Motion/Action Interlocutory?
(2) That the inference must be based on proven facts; Demurrer to evidence YES
and Motion to quash YES
(3) That the combination of all circumstances
produces a conviction beyond doubt of the guilt of
the accused
Proof of minority
The allegation of minority or age must be proved with equal
certainty and clearness as the crime itself.
Judgment of acquittal
In case the judgment is for acquittal, it shall state whether
the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove this guilt
beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil
liability might arise did not exist.
Two kinds of acquittal

1) An acquittal on the ground the accused is not the
author of the act or omission complained of.
2) An acquittal based on reasonable doubt of the guilt
of the accused.
Finality of acquittal rule

A judgment of acquittal is immediately final and executory,
and it is not appealable. It cannot be reconsidered, nor can
it be modified, except to eliminate something which is civil
or administrative in nature, or it can be modified so long as
it is favorable to the accused.
1) Judgment of conviction – 15 days to appeal

from the date of promulgation of the judgment
2) Judgment of acquittal – becomes final and
executory
Dismissal upon an affidavit of assistance

120

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FROM THE ANNOTATIONS OF DEAN TAN AND DISCUSSIONS OF ATTY DERIJE

The Revised Rules of Court CRIMINAL PROCEDURE

Sources of Rules on Criminal Procedure (Tan)

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

3 Matters of Jurisdiction Other concepts of subject matter

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Where the appearance is by motion Rules on estoppel on the question of jurisdiction

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

2) Determine whether a particular case is under engineers, and other provincial

Criminal Procedure | VENTEROSO

government or to offense committed in relation" to his office. (People

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

1) Supreme court government or bribery arising from the

Criminal Procedure | VENTEROSO

GR: All dispute must be referred to or must come Process to be followed

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Section 5. Who must prosecute criminal action. - All XPNs:

The offenses of seduction, abduction and acts of

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Bars criminal action Dismisses the criminal  offended party,

Criminal Procedure | VENTEROSO

1) shall be in writing Q: What is the requirement before the filing of a

Q: What is the effect of the failure to implead the Complaint Information

Criminal Procedure | VENTEROSO

Thus, even if the designation of the crime in the

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

the provision of law alleged to have been

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

(c) Where an offense is committed on board a vessel of First Instance of

Criminal Procedure | VENTEROSO

filed in any of the places 2) of any municipality or territory where the

Criminal Procedure | VENTEROSO

with leave of court and when it can be done without Gabionsa v CA

Criminal Procedure | VENTEROSO

SUBSTITUTION Must be with leave of

There can only be a substitution of the offense charged RULE 111

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

proceed simultaneously and independently of the  right of the prosecution to cross-

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO

mortgage was executed in relation to that loan. The

The previously instituted civil action in this case is DEFINITION OF “PRELIMINARY

Criminal Procedure | VENTEROSO

Criminal Procedure | VENTEROSO