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Manual For Prosecutors and Assignemadfa
Manual For Prosecutors and Assignemadfa
MANUAL
FOR
PROSECUTORS
TABLE OF CONTENTS
PAG
E
FOREWORD
ACKNOWLEDGEMENT
PART I.
PROSECUTION OF OFFENSES
Sec. 1. Criminal Action
Sec. 2. How and Where Commenced
Sec. 3. Complaint
Sec. 4. Offended Party, Defined
Sec. 5. Information
Sec. 6. Sufficiency of complaint or information.
Sec. 7. Other Essential Matters to be alleged in
Complaint or Information
Sec. 8. Additional Contents of a Complaint
Sec. 9. Name of Accused
Sec. 10. Designation of Offense
Sec.11. Cause of Accusation
Sec. 12. Place of the Commission of Offense
Sec. 13. Time of Commission of Offense
Sec. 14. Title of Complaint or Information
Sec. 15. Contents of Caption of an Information
Sec. 16. List of Prosecution Witnesses
Sec. 17. Number of Offenses Charged
Sec. 18. Amendment of Information or Complaint
Sec. 19. Mistake in Form and Substance
Sec. 20. How Period of Prescription Computed
and Interrupted
PART II.
INQUEST
Sec. 1. Concept
Sec. 2 Designation of Inquest Officer
Sec. 3. Commencement and Termination of Inquest
Sec. 4. Documents Required in Specific Cases
Sec. 5. Incomplete Documents
Sec 6. Presence of Detained Person
Sec. 7. Charges and Counter-charges
Sec. 8. Initial Duty of Inquest Officer
Sec. 9. Where Arrest Not Properly Effected
Sec. 10.Where Arrest Properly Effected
Sec. 11. Inquest Proper
Sec. 12. Meaning of Probable Cause
Sec. 13. Presence of Probable Cause
12
Sec. 14. Contents of Information .
13
Sec. 15. Absence of Probable Cause
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Sec. 26. Reply-Affidavits and Rejoinders
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PART IV.
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Appendix "B-i", NPS Form 2, Release Order Of Detained Person
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Appendix "B-2", NPS Form 3, Request for Preliminary Investigation and Waiver of Article 125,
Revised Penal Code
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Appendix "B-3", NPS Form 4, Certification (For Information in Inquest Cases)
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Appendix "B-S", NPS Form 6, Request for Release Of Recovered Articles
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FOREWORD
There is a need t~ ii~aintain the level of competence of our prosecutors to enable them t~
creditably perform their delicate tasks of prosecuting the guilty and protecting the innocent.
This Manual partly answers this need.
TEOFISTO 1 GUINGONA, JR
Secretary
ACKNOWLEDGEMENT
RAMON J. LIWAG
Undersecretary
Chairman, Committee created under
Department Order No.153, series of 1996
NOTE
THIS MANUAL IS DESIGNED TO BE REVISED AND UPDATED AS
THE NEED ARISES.
WHEN CHANGES OCCUR IN THE RELEVANT LAW, ISSUANCE OR
JURISPRUDENCE ,THESE CHANGES WILL BE FORWARDED TO YOU IN
THE FORM OF NEW LOOSE LEAF PAGES.
FILE THESE NEW PAGES AS SOON AS POSSIBLE TO KEEP YOUR
MANUAL CURRENT AND COMPLETE.
To discourage the filing of harassment charges, the prosecutor shall warn the
complainant that any false statement in the complaint may give rise to a finding of a prima
facie case for perjury before the same office.
SEC. 4. Offended party, defined. - The offended party is the person against whom or
against whose property the crime was committed. 3
SEC. 5. Information. - An information is the accusation in writing charging a person
with an offense, subscribed by the prosecutor, and filed with the court. The information need
not be placed under oath by the prosecutor signing the same. The prosecutor must, however,
certify under oath that a)
he has examined the complainant and his witnesses;
b)
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
c)
the accused was informed of the complaint and of the
evidence submitted against him; and
d)
the accused was given an opportunity to submit
controverting evidence.4
The sworn complaint referred to usually refers to a complaint filed in court and not in the
prosecutor's office. It is not necessary to file a sworn complaint with the prosecutor before the
latter can conduct a preliminary investigation. A mere unsworn letter suffices to start an
investigation, except if the offense charged is one which cannot be prosecuted de oficio or is
private in nature i.e., where the law requires that it be started by a complaint sworn to by the
offended party.
In a case involving a private offense, the phrase "complaint filed by the offended party" as
used in Section 5, Rule 110 should be given a liberal or loose interpretation, meaning a
"charge, allegation, grievance or accusation" rather than a strict construction for often than
not the offended party who files it is unschooled in law The purpose of the complaint in
Section 5, Rule 110, is merely to initiate or commence the prosecution of the accused. Thus,
the "Sinumpaang Salaysay" of the victim of a private offense is already deemed a complaint"
required in the aforesaid Sec. 5. (People vs. Sangil, 208 SCRA 696 [1992]).
3
4
b)
the statement of the act or omission constituting the same, and if there is no such
designation, reference shall be made to the section or subsection of the law
punishing it.6
SEC. 11. Cause of accusation. - The act or omission complained of as constituting the
offense shall be stated in an ordinary and concise language without repetition. The statement
need not use the terms of the statute defining the offense so long as a person of common
understanding is able to know what offense was intended to be charged and to enable the
court to pronounce proper judgment. 7
Sec. 8, ibid.
Sec. 9, ibid.
10
11
Sec. 2, ibid.
Sec. 13, ibid; " Penalty for complex crimes. - When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period". (An. 48, Revised Penal Code).
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15
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For cases falling within the jurisdiction of the Katarungang Pambarangay, the period
of prescription is likewise interrupted by the filing of the complaint with the punong
barangay; but shall resume to run again upon receipt by the complainant of the certificate of
repudiation or of the certification to file action issued by the lupon or pangkat secretary;
Provided, however, That such interruption shall not exceed sixty (60) days from the filing of
the complaint with the punong barangay.21
22
Prescription shall not run when the offender is absent from the country.
22
In cases where the imposable penalty is imprisonment and/or a fine, the greater penalty shall
be the basis for the computation of prescription.
17
Ibid.
18
Ibid.
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The Inquest Officer shall, as far as practicable, cause the affidavit of arrest and
statements/affidavits of the complainant and the witnesses to be subscribed and sworn to
before him by the arresting officer and the affiants.
The inquest proceedings must be terminated within the period prescribed under the
provisions of Article 125 of the Revised Penal Code, as amended. 24
SEC. 4. Documents required in specific cases. - The Inquest Officer shall, as far as
practicable, require the submission/presentation of the documents listed below, to wit:
b)
necropsy report and the certificate of post-mortem examination, if
readily available.
Frustrated or Attempted Homicide, Murder, Parricide and Physical Injuries
a)
medical certificate of the complaining witness showing the nature or
extent of the injury;
b)
certification or statement as to duration of the treatment or medical
attendance; and
c)
certificate or statement as to duration of incapacity for work.
24
12 Hours for light offenses; 18 hours for less grave offenses; and 36 hours for grave
offenses.
a)
b)
if he is confined in a hospital;
if he is detained in a place under maximum security;
if production of the detained person will involve security risks; or
if the presence of the detained person is not feasible by reason of age, health,
sex and other similar factors.
The absence of the detained person by reason of any of the foregoing factors shall be
noted by the Inquest Officer and reflected in the record of the case.
SEC. 7. Charges and counter-charges.- All charges and counter-charges arising from
the same incident shall, as far as practicable, be consolidated and inquested jointly to avoid
contradictory or inconsistent dispositions.
SEC. 8. Initial duty of Inquest Officer. - The Inquest Officer shall first determine if the
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when, in the presence of the arresting officer, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; or
when an offense has in fact just been committed, and the arresting officer has
personal knowledge of facts indicating that the person to be arrested has
committed it.
For this purpose, the Inquest Officer may summarily examine the arresting officers on
the circumstances surrounding the arrest or apprehension of the detained person.
SEC. 9. where arrest not properly effected. - Should the Inquest Officer find that the
arrest was not made in accordance with the Rules, he shall;
a)
b)
c)
d)
forward the same, together with the record of the case, to the City or Provincial
Prosecutor for appropriate action.
Where the recommendation for the release of the detained person is approved by the
City or Provincial Prosecutor but the evidence on hand warrants the conduct of a regular
preliminary investigation, the order of release shall be served on the officer having custody of
said detainee and shall direct the said officer to serve upon the detainee the subpoena or
notice of preliminary investigation, together with the copies of the charge sheet or complaint,
affidavits or sworn statements of the complainant and his witnesses and other supporting
evidence.28
SEC. 10. where arrest properly effected. - Should the inquest Officer find that the
arrest was properly effected, the detained person shall be asked if he desires to avail himself
of a preliminary investigation and, if he does, he shall be made to execute a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended 29, with the assistance of a
lawyer and, in case of non-availability of a lawyer, a responsible person of his choice. 30 The
Go vs. Court of Appeals, 206 SCRA 138 [1992]; Umil, et.al. vs. Ramos, 202 SCRA 251
[1991] and companion cases People vs. Malmstedt, 198 SCRA 401 and People vs. Aminudin,
163 SCRA 402 [1988].
27
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30
Such responsible person may be a parent, elder brother or sister, spouse, the municipal mayor, the
municipal judge, district school supervisor, or priest/minister of the gospel as chosen by him (Sec. 2 (d)
RA 7438, An Act Defining Rights of Person Arrested, Detained or under Custodial Investigation)
preliminary investigation may be conducted by the Inquest Officer himself or by any other
Assistant Prosecutor to whom the case may be assigned by the City or Provincial Prosecutor,
which investigation shall be terminated within fifteen (15) days from its inception.
9
b)
c)
d)
e)
f)
g)
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h)
the full names and addresses of the parents, custodians or guardians of the
minor complainant or accused, as the case may be.
SEC. 15. Absence of probable cause.- If the Inquest Officer finds no probable cause, he
shall:
a)
b)
c)
d)
If the recommendation of the Inquest Officer for the release of the arrested or
detained person is approved, the order of release shall be served on the officer having custody
of the said detainee.
Should the City or Provincial Prosecutor disapprove the recommendation of release,
the arrested or detained person shall remain under custody, and the corresponding
complaint/information shall be filed by the City or Provincial Prosecutor or by any Assistant
Prosecutor to whom the case may be assigned.
SEC. 16. Presence at crime scene. - Whenever a dead body is found and there is reason
to believe that the death resulted from foul play, or from the unlawful acts or omissions of
other persons and such fact has been brought to his attention, the Inquest Officer shall:
a)
forthwith proceed to the crime scene or place of discovery of the dead person;
b)
c)
d)
e)
The said articles must be properly deposited with the police evidence custodian and
not with the police investigator.
The Inquest Officer shall ensure that the items recovered are duly safeguarded and the
chain of custody is properly recorded.
SEC. 19. Release of recovered articles.- The Inquest Officer shall, with the prior
approval of the City or Provincial Prosecutor or his duly authorized representative, order the
release33 of recovered articles to their lawful owner or possessor, subject to the conditions
that:
a)
b)
c)
d)
e)
f)
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a)
b)
by the filing of a complaint by the offended party or any competent person 842
directly with the Office of the Investigating Prosecutor or Judge;
People vs. Poculan, 167 SCRA 176 [1988]; Rodis, Sr. vs.
Sandiganbayan, Second Division, 166 SCRA 618 [19881; Salonga vs.
Pano, 134 SCRA 438 [1985]; Trocio vs. Manta, 118 SCRA 241
[1982]; Sausi vs. Querubin, 62 SCRA 155 [1975]; and Hashim vs.
Boncan, 71 Phil. 216 [1941].
38
Tandoc vs. Resultan, 175 SCRA 37 [1989].
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b)
c)
d)
e)
the full and complete names and exact home, office or postal addresses of the
complainant and his witnesses;
The full and complete name and exact home, office or postal address of the
respondent;
The offense charged and the place and exact date and time of its commission;
and
Whether or not there exists a related case and, if so, the docket number of
said case and the name of the Investigating Prosecutor thereof.
SEC. 9. Supporting affidavits.- The complaint shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting proofs or documents, if any. The affidavits
shall be sworn to before a Provincial, City or State Prosecutor, or other government official authorized
to administer oaths or, in their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits.44
When the preliminary investigation is commenced by referral from or upon request of the law
enforcement agency that investigated the incident, the affidavits of the complainant and his witnesses
to be submitted by the said agency shall consist of the original or duplicate original or certified
machine copies thereof.
SEC. 10. Number of copies of affidavits. - The complaint and supporting affidavits shall be in
such number of copies as there are respondents, plus four (4) copies for the court/official file.
Where a complaint charges multiple offenses which cannot be the subject of one indictment or
information, the complainant may be required to submit such additional copies of the complaint and
supporting affidavits as there are offenses charged in the complaint.
SEC. 11. Barangay certification . - If the offense charged is punishable by imprisonment not
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exceeding one (1) year or a fine not exceeding Five Thousand Pesos (5,000.00) and the parties to the
case are all residents of the same city or municipality, the complaint shall be accompanied by the
certification required under Section 412 (a) of R.A. Act No.7160, "The Local Government Code of
1991.45
SEC. 12. Lack of harangay certification.- The absence of a barangay certification shall not be
a ground for the dismissal of the complaint. The Investigating Prosecutor shall, however, make the
corresponding referral of the complaint to the proper Lupong Tagapamayapa for appropriate action
pursuant to the provisions of Chapter 7, Book III of R.A. No.7160. In connection therewith, the
complainant may be summoned for the purpose of delivering the referral to the Chairman of the
appropriate barangay and to secure the necessary certification within thirty (30) days.
In any of the following cases. the Investigating Prosecutor shall proceed to take cognizance of
the complaint for purposes of preliminary investigation46 even if there is no Barangay Certification:
a)
b)
c)
SEC. 13. Initial/ action on the Complaint.- Within ten (10) days after the filing of the
complaint, the Investigating Prosecutor shall either dismiss the same if he finds no ground to continue
with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint
together with the affidavits of witnesses and other supporting documents. 47
9
SEC. 14. Dismissal of complaint. - The following, among others, shall constitute
sufficient basis for the outright dismissal of a complaint:
a)
b)
c)
d)
e)
45
that the offense charged in the complaint was committed outside the
territorial jurisdiction of the Office of the Investigating Officer; 48
that, at the time of the filing of the complaint, the offense charged therein had
already prescribed;
that the complainant is not authorized under the provisions of pertinent laws
to file the complaint;
that the acts and/or omissions alleged in the complaint and/or the supporting
affidavits do not sufficiently show that a criminal offense or violation of a
penal law has been committed; or
that the complaint and the supporting affidavits are unsigned and/or have not
See Appendix "0", List of Offenses cognizable by the Lupong Tagapamayapa (Crimes
Covered by the Katarungang Pambarangay).
46
47
The resolution of dismissal should include a statement that the entire record of the case is
being forwarded to the office having jurisdiction over the same.
48
been duly subscribed and sworn to as prescribed under the Rules on Criminal
Procedure.
SEC. 15. Personal service of documents by investigating prosecutor. -Whenever
circumstances warrant and to prevent the loss of documents in the course of the service of a
subpoena through ordinary modes, the Investigating Prosecutor may require the respondent or
other parties to appear before him on a designated date, time and place and then and there
personally furnish them with copies of the complaint, supporting affidavits and other
documents.
At the said or any other setting, the respondent shall have the right to examine all other
evidence submitted by the complainant.
Failure on the part of the respondent or his counsel/representative to appear before the
Investigating Prosecutor to obtain copies of the complaint, supporting affidavits and other
documents despite receipt of notice or subpoena shall be considered a waiver or forfeiture of
respondent9s right to be furnished copies of the complaint, supporting affidavits and other
documents, as well as to examine all other evidence submitted by the complainant.
For the purposes specified in the first paragraph hereof, the Investigating Prosecutor
shall not require the appearance before him of the respondent or other parties who are residing
in distant places. In such cases, the Investigating Prosecutor shall issue and send the
subpoena, together with copies of the complaint, supporting affidavit and other documents, by
registered special delivery mail with return card.
SEC. 16. Service of subpoena in preliminary investigation. - To expedite the conduct
of a preliminary investigation, the following guidelines shall be observed in the service of
subpoenasa)
b)
c)
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b)
the fact that the complaint, or one similar thereto or identical
therewith, has previously been filed with the Office and has been fully
adjudicated upon on the merits after due preliminary investigation
proceedings; or
c)
the extinction of respondentts criminal liability by reason of death,
pardon, amnesty, repeal of the law under which prosecution is sought, or
other legal causes.
SEC. 20. Consolidation.- The following cases shall, as far as practicable, be
consolidated for preliminary investigation purposes and assigned to and jointly heard by one
Investigating Officer:
a)
charges and counter-charges;
b)
cases arising from one and the same incident or transaction or series
of incident or transactions; and
c)
cases involving common parties and founded on factual and/or legal
issues of the same or similar character.
SEC. 21. Extension of time. - No motion or request for extension of time to submit
counter-affidavits shall be allowed or granted by the Investigating Prosecutor except when the
interest of justice demands that the respondent be given reasonable time or sufficient
opportunity to:
a)
b)
c)
Extensions of time to submit a counter-affidavit for any of the reasons stated above
shall not exceed ten (10) days. Additional extensions may be authorized by the
Provincial/City Prosecutor concerned.
SEC. 22. Suspension of proceedings.- Upon motion of a party, or when raised in a
counter-affidavit, the Investigating Prosecutor may suspend the preliminary investigation
proceedings if the existence of a prejudicial question is satisfactorily established. 52
The existence of a prejudicial question shall, however, not be a ground for the
dismissal of the complaint.
SEC. 23. Concept of prejudicial question.- A prejudicial question is one the resolution of
which is a logical antecedent of the issue involved in a case and the cognizance of which pertains to
52
another tribunal.53 It is based on a fact distinct and separate from the crime charged but so intimately
connected with it that it determines the guilt or innocence of the accused. To suspend the criminal
action, it must not only appear that said case involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the resolution of the issue or issues raised in the
civil case, the guilt or innocence of the accused would necessarily be determined. 54
the civil action involves an issue similar or intimately related to the issue
raised in the criminal action;
the resolution of such issue determines whether or not the criminal action
may proceed ; and
the cognizance of the said issue pertains to another tribunal. 56
55
c)
SEC. 27. Clanficatory questions. - The Investigating Prosecutor may set a hearing to
propound clarificatory questions to the parties or their witnesses if he believes that there are
matters which need to be inquired into personally by him. In said hearing, the parties shall be
afforded the opportunity to be present but without the right to examine or cross-examine. If
they so desire, they may submit written questions to the Investigating Prosecutor who may
propound such questions to the parties or witnesses concerned. 57
The Investigating Prosecutor shall make a record of the questions asked and answers
53
Ras vs. Rasul, 100 SCRA 125 [1980]; Quiambao vs. Osono, G. R. No.48157, March 16, 1988; and
Appendix P
54
Donato vs. Luna, G.R. No.53642, April 15, 1988; Prado vs. People, 133 SCRA 602 [1984]; and
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57
given during the clarificatory questioning which shall be signed by the parties concerned
and/or their respective counsel. Said notes shall form part of the official records of the case.
Parties who desire to file a petition for review of the Investigating Officer's resolution may, at
their option, cite specific portions of the oral testimony by reference to the transcript of
stenographic notes. Said notes shall only be transcribed in cases of appeal and shall be
obtained at the expense of the interested party.
28. Submission of case for resolution. - The Investigating Prosecutor shall case
submitted for resolution:
a)
b)
SEC. 29. Lack of probable cause.- If the Investigating Prosecutor does not find
sufficient basis for the prosecution of the respondent, he shall prepare the resolution
recommending the dismissal of the complaint.
SEC. 30. Finding of probable cause. - If the Investigating Prosecutor finds that probable cause
exists, he shall prepare the resolution and the corresponding information or complaint in the
appropriate cases.
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party;
b)
the motion is accompanied with the new and/or additional evidence;
and
c)
the motion sufficiently and satisfactorily shows valid and justifiable
reason for the failure of the movant to submit the new and/or additional
evidence during the preliminary investigation proceedings.
SEC. 32. Cases Transmitted by the Municipal Trial Judge. - Upon receipt of the
records of the case from the Municipal Trial Court or Municipal Circuit Trial Court which
conducted the Preliminary Investigation, the Prosecution Office shall review the case based
on the existing records, without requesting the parties to submit memorandum of authorities ,61
and may affirm, modify or reverse the finding of the Municipal Trial Court judge. However, if
the interest of justice so requires, the prosecutor may conduct a full blown reinvestigation
giving the parties the opportunity to submit additional evidence, and thereafter, resolve the
case on the basis of the totality of the evidence thus adduced.
SEC. 33. Memoranda. - The Investigating Prosecutor shall not require nor allow the
filing or submission by the parties of memoranda unless the case involves difficult or
complicated questions of law or of fact. In any event, the filing of memoranda by the parties
shall be done simultaneously and the period therefore shall not exceed ten (10) days, unless a
longer period is authorized by the Provincial/City Prosecutor concerned.
SEC. 34. Period for resolving a case. - The Investigating Prosecutor shall resolve the
case within ten (10) days from the time the case is deemed submitted for resolution, 62 unless
otherwise provided herein or a longer period is authorized by the Provincial/City Prosecutor
concerned.
SEC. 35. Form of resolution and number of copies.- The resolution shall be written in the
official language, personally and directly prepared and signed by the Investigating Prosecutor.
It shall be prepared in as many copies as there are parties, plus three (3) additional copies.
SEC. 36. Contents of the resolution. - A resolution shall contain a caption and a body.
SEC. 37. Caption of resolution. - The caption of the resolution shall indicate the:
62
All material details that should be found in the information prepared by the
Investigating Prosecutor shall be stated in the resolution.
SEC. 42. Parts of a resolution. - As a rule, the body of a resolution is made up of four
parts, namely:
a)
Part 1 shall state the nature of the case as disclosed in the evidence presented
by the complainant such as his affidavit-complaint, the affidavit of witnesses
and documentary and physical evidence. The affidavits shall be numbered in
the order of the presentation of the prosecution witnesses as disclosed in the
list of witnesses appearing in the information. As for the documentary
b)
c)
d)
SEC. 43. How recommended hail is written. - The bail recommended in the resolution
shall be written in words and figures.
SEC. 44. Recommended bail. - The bail recommended in the resolution shall be stated
in the information, written in words and figures, and initialed by the investigating prosecutor.
SEC. 45. Parties to be furnished with a copy of the resolution. - The complete names
and addresses of the complainant and the respondent shall be set out at the end of the
resolution after the signature of the investigating prosecutor and the head of the Prosecutor's
Office concerned under the phrase: "Copy furnished:".
If the parties are represented by counsel and the latter's appearance is entered formally
in the record,63 the counsel, not the party, shall be given a copy of the resolution.
SEC. 46. Signature and initials of investigating prosecutor. - The investigating
prosecutor shall sign the resolution and if the resolution consists of two or more pages, the
prosecutor shall initial all of said pages, excluding the signature page.
SEC. 47. Records of the case. - The investigating fiscal shall forward his resolution,
together with the complete records of the case, to the Provincial or City Prosecutor or Chief
State Prosecutor concerned within five (5) days from the date of his resolution. 64
SEC. 48. Action of the Provincial or City Prosecutor or Chief State Prosecutor on
resolution. - The Provincial or City Prosecutor or Chief State Prosecutor concerned shall act
on all resolutions within ten (10) days from receipt thereof by either approving or
disapproving the resolution or returning the same to the investigating prosecutor for further
appropriate action.' 'immediately after approving or disapproving the resolution, the
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64
Provincial or City Prosecutor or Chief State Prosecutor concerned shall transmit a copy of the
resolution to the parties.
SEC. 49. Reversal by the Provincial or City Prosecutor or Chief State Prosecutor of
resolution of investigating prosecutor. - If the Provincial or City Prosecutor or Chief State
Prosecutor reverses the recommendation in the resolution of the investigating prosecutor, the
former may, by himself, file the corresponding information or direct any other assistant
prosecutor or state prosecutor, as the case may be, to do so without need of conducting
another preliminary investigation.
SEC. 50. Approval of pleading by head of prosecution office. - A pleading prepared by
the trial prosecutor, including exparte motions, shall not be filed in court without the prior
written approval by the Provincial or City Prosecutor or Chief State Prosecutor, as the case
may be, of said pleading.
SEC. 51. Motion for reinvestigation, where filed. - Before the arraignment of the
accused, a motion for reinvestigation of the case may be filed with the City/Provincial
Prosecutor, Provided, That when the case has been appealed to the Regional State Prosecutor
or the Department of Justice, such motion may be filed, respectively, with the said offices.
After arraignment, said motion may only be filed with the judge hearing the case.
SEC. 52. Confidentiality of resolutions. - All resolutions prepared by an Investigating
Prosecutor after preliminary investigation, whether his recommendation be for the filing or
dismissal of the case, shall be held in strict confidence and shall not be made known to the
parties, their counsel and/or to any unauthorized person until the same shall have been finally
acted upon by the Provincial/City Prosecutor or his duly authorized assistant and approved for
promulgation and release to the parties.
Violation of the foregoing shall subject the Investigating Prosecutor or the employee
of the office concerned to severe disciplinary action.
SEC. 53. Information/Complaint.- The information/complaint shall be personally and
directly prepared by the Investigating Prosecutor or such other prosecutor designated for the
purpose and signed by him or the complainant, as the case may be. It shall state and contain,
in addition to the requirements of the Rules of Court on the sufficiency of the allegations in an
information or complaint, the following:
a)
b)
c)
d)
e)
f)
g)
h)
the full name and aliases, if any, and address of the accused;
the age and date of birth of the complainant or the accused, if eighteen (18)
years of age or below;
the full names and addresses of the parents, custodian or guardian of the
minor complainant or accused, as the case may be;
the place where the accused is actually detained;
the full names and addresses of the complainant and witnesses;
a detailed description of the recovered items, if any;
the full name and address of the evidence custodian; and
the bail recommended, if the charge is bailable.
The Investigating Prosecutor shall certify under oath that he or, as shown by the
record, an authorized officer, had personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of the evidence
submitted against him and that he was given an opportunity to submit controverting evidence;
and that he is filing the complaint or information with the prior authority and approval of the
Provincial/City Prosecutor concerned.65
SEC. 54. Documents to be attached to information/complaint. - An
information/complaint that is filed in court shall, as far as practicable, be accompanied by a
copy of the resolution of the Investigating Prosecutor, the complainant's affidavit, the sworn
statements of the prosecution's witnesses, the respondent's counter-affidavit and the sworn
statements of his witnesses and such other evidence as may have been taken into account in
arriving at a determination of the existence of probable cause. 66
SEC. 55. Promulgation of resolution.- The result of the preliminary investigation shall
be promulgated by furnishing the parties or their counsel a copy of the resolution by:
a)
b)
c)
personal service;
registered mail with return card to the complainant, and by ordinary mail to
the respondent, if the resolution is for the dismissal of the complaint; or
registered mail with return card to the respondent, and by ordinary mail to the
complainant, if the resolution is for the indictment of the respondent.
SEC. 56. Motion for reconsideration. - A motion for reconsideration may be filed
within ten (10) days from receipt of the resolution. The motion shall be verified, addressed to
the Provincial/City Prosecutor or the Chief State Prosecutor, and accompanied by proof of
service of a copy thereof on the opposing party and must state clearly and distinctly the
grounds relied upon in support of the motion.
A motion for reconsideration is still part of due process in the preliminary
investigation. The denial thereof is a reversible error as it constitutes a deprivation of the
respondent's right to a full preliminary investigation preparatory to the filing of the
information against him.67 The court therefore may not proceed with the arraignment and trial
pending resolution of the motion for reconsideration.
SEC. 57. Inhibition. - A Prosecutor shall inhibit himself from conducting a
preliminary investigation in a case wherein a)
b)
c)
he has been named counsel. party within the 6th degree of consanguinity or within
the 4th degree; or executor, administrator, guardian, trustee or
65
66
Lim V. Felix, G. R. No.94054-57, and Fernandez V. Felix, G.R. No.94266-57, 194 SCRA 292
A motion to disqualify or inhibit the Investigating Prosecutor may be filed with the
City/Provincial or Chief State Prosecutor concerned for just or valid reasons
other than those mentioned above.
SEC. 58. Period to resolve cases under preliminary investigation. - The following
periods shall be observed in the resolution of cases under preliminary investigation:
a)
b)
c)
Department Order No.223 dated June 30,1993 as amended by DO No.359 dated October
17, 1995.
69
(15) days from receipt of the questioned resolution by the party or his counsel. The period
shall be interrupted only by the filing of a motion for reconsideration within ten (10) days
from receipt of the resolution and shall continue to run from the time the resolution denying
the motion shall have been received by the movant or his counsel.
SEC. 3. Form and contents. - The petition shall be verified by the petitioner and shall
contain the following:
a)
b)
c)
d)
e)
f)
g)
date of receipt of the questioned resolution; date of filing of the mot )n for
reconsideration; if any; and date of receipt of the resolution on the motion for
reconsideration;
names and addresses of the parties;
the Investigation Slip Number or I.S. No. and/or criminal case number and
the title of the case;
the venue of the preliminary investigation;
a clear and concise statement of the facts, the assignment of errors, and the
legal basis of the petition;
in case of a finding of probable cause, that petitioner has filed in court a
motion to defer further proceedings; and
proof of service of a copy of the petition to the adverse party or his counsel and the
prosecutor either by personal delivery or registered mail evidenced by the registry
receipts and affidavit of mailing.
The petitioner shall append to his petition copies of the material and pertinent
affidavits/sworn statements (including their translations, if any, duly certified by the
city/provincial prosecutor) and evidence submitted in the preliminary investigation by both
parties and the questioned resolution.
The prosecutor concerned shall immediately inform the Department or
the Regional State Prosecutor of the action of the court on the motion to defer
further proceedings. If the accused is arraigned during the pendency of the
petition, the prosecutor concerned shall likewise immediately inform the
Department or the Regional Stat& Prosecutor of such arraignment.
SEC. 4. Cases not subject to review; exceptions.- No petition may be
allowed from a resolution of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor finding probable cause except upon
showing of manifest error or grave abuse of discretion. Either
complainant/offended party or respondent/accused may file a petition.
Notwithstanding the showing of manifest error or grave abuse of discretion no
petition shall be entertained where the accused had already been arraigned.
Once arraigned, the petition shall be dismissed motu proprio by the Secretary
of Justice.
SEC. 5. Answer.- Within a non-extendible period of fifteen (15) days
from receipt of a copy of the petition, the respondent may file a verified answer
indicating therein the date that the copy of the petition was received with proof
of service of the answer to the petitioner. If no answer is filed, the case shall be
resolved on the basis of the petition.
a)
b)
c)
d)
e)
SEC. 9. Motion for Reconsideration.- The aggrieved party may file a motion for
reconsideration within a non-extendible period of ten (10) days from receipt of the resolution
on the petition, furnishing the adverse party or his counsel and the prosecutor with copies
thereof. No second motion for reconsideration shall be entertained.
SEC. 10. Effect of filing of petition. - A petition for review, motion for
reconsideration/reinvestigation from a resolution finding probable cause shall not hold the
filing of the information in court.
Pending resolution of the Petition for review, the accused is entitled to a suspension of
the proceedings, to the holding in abeyance of the issuance of warrant of arrest, and deferment
of the arraignment.70
Like a motion for reconsideration of the resolution of the City/Provincial
Prosecutor, the right to a petition for review is a part of due process.
Notwithstanding the ruling in Crespo vs. Mogul (151 SCRA 463 [1987]), the
Court may not proceed with the criminal proceedings until after the
resolution of the Regional Prosecutor or of the Secretary of Justice shall
have become final, and the corresponding motion has been filed in Court
by the trial prosecutor to withdraw or dismiss the information or to
proceed with the trial as the case may be, per findings in the petition for
70
PART V. BAIL71
9
SECTION 1. Bail defined. - Bail is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, conditioned upon his appearance before
any court as required under the conditions hereinafter specified. Bail may be given in the
form of corporate surety, property bond, cash deposit, or recognizance.
SEC. 2. Nature of right to bad.- The right to bail is guaranteed by the Constitution. It
is the duty of the prosecutor to recommend such amount of bail to the courts of justice as, in
his opinion, would ensure the appearance of an accused person when so required by the
court.72
SEC. 3. Non-bailable offense. - No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is
strong, shall be admitted to bail regardless of the stage of the criminal prosecution.
SEC. 4 Criteria in recommending amount of bail. - In recommending the amount of
bail to be granted by the court, the prosecutor shall take into consideration the following
standards and criteria:
a)
b)
c)
d)
e)
f)
g)
h)
Sec. 6, Rule 114, supra; Department of Justice Circular No.4, series of 1996, effective 1
February 1996.
73
SEC. 6. Recognizance. - Whenever allowed pursuant to law or these Rules, the court
may release a person in custody on his own recognizance or that of a responsible person.
SEC. 7. Bail, when not required; reduced bail or recognizance. - No bail shall be
required when the law or the Rules issued by the Supreme Court so provide 74.
When a person has been in custody for a period equal to or more than the possible
maximum imprisonment of the offense charged to which he may be sentenced, he shall be
released immediately without prejudice to the continuation of the trial thereof or the
proceedings on appeal. In case the maximum penalty to which the accused may be sentenced
is destierro, he shall be released after thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the principal
penalty prescribed for the offense charged without application of the Indeterminate Sentence
Law or any modifying circumstance, shall be released on a reduced bail or on his own
recognizance, at the discretion of the court.
SEC. 8. Notice of application for hail to prosecutor. - In an application for bail, the
court shall give reasonable notice of the hearing to the prosecutor or require him to submit his
recommendation.
SEC. 9. Cancellation of hail bond. - Upon application filed with the court and after
due notice to the prosecutor, the bail bond may be canceled upon surrender of the accused or
proof of his death.
The bail bond shall be deemed automatically canceled upon acquittal of the accused
or dismissal of the case or execution of the final judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on the
bond.
SEC. 10. Arrest of accused out on hail. - For the purpose of surrendering the accused,
the bondsmen may arrest him, or on written authority endorsed on a certified copy of the
undertaking may cause him to be arrested by any police officer or any other person of suitable
age and discretion.
An accused released on bail may be re-arrested without the necessity of a warrant if
he attempts to depart from the Philippines without prior permission of the court where the
case is pending.
SEC. 11. No had after final judgment, exception. - An accused shall not be allowed
bail after the judgment has become final, unless he has applied for probation
before commencing to serve sentence, the penalty and the offense being
74
within the purview of the Probation Law. In case the accused has applied
for probation, he may be allowed temporary liberty under his bail bond,
but if no bail was filed or the accused is incapable of filing one, the court
may allow his release on recognizance under the custody of a responsible
member of the community. In no case shall bail be allowed after the
accused has commenced to serve sentence.
SEC. 12. Rules in computing the bail to be recommended. - To achieve uniformity in
the amount of bail to be recommended, the following rules shall be observed:
a)
b)
1.
ii.
iii.
iv
v.
1.
ii.
iii.
d)
I.
ii.
iii.
iv.
v.
vi.
SEC. 13. Petition for bail in a continuous trial. - In case a petition for bail is filed by
the accused and the court orders a continuous trial of the case, the public prosecutor shall be
prepared with his principal witnesses. Where there are several accused and one or two filed a
petition to bail, the trial prosecutor shall, before the presentation of his first witness, manifest
in open court that the evidence to be presented in the hearing of the petition for bail shall be
adopted as its evidence-inchief.
76
b)
Before the arraignment of the accused, the trial prosecutor shall examine the
information vis-a-vis the resolution of the investigating prosecutor in order to
make the necessary corrections or revisions and to ensure that the information
is sufficient in form and substance.
After arraignment, the trial prosecutor shall prepare his witnesses for trial.
Government witnesses, e.g. medico-legal officer, chemist, forensic experts,
examiners etc. should, as much as practicable, be presented in accordance
with the logical a~d chronological sequence of the technical aspects to be
proved.
SEC. 3. Effect of filing a petition for review. - When an aggrieved partymanifests in court that
he has a pending petition for review with the Department of Justice and moves for a deferment of the
arraignment pending resolution of his petition, the Trial Prosecutor may conform thereto once proof of
said petition has been presented by the petitioner to his satisfaction.
SEC. 4. Concept of plea. - The plea is the reply of the accused to the charge. It raises the issue
to be tried and on which the judgment/sentence of the court can be properly based.
78
case beyond a reasonable doubt and that every act or incident should be proved by the
testimony of qualified and competent witnesses.
After the pre-trial conference, the prosecutor shall ensure that any agreement or
admission made or entered therein is in writing and signed by the accused and his counsel.
SEC. 3. Subject matters ofpre-tn.al. - The pre-trial conference shall consider the
following:
a)
Plea bargaining - This is a process where the defendants usually plead guilty
to a lesser offense or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for the graver charge 79;
b)
Stipulation of facts- This is the agreement of the parties on some facts admitted,
some facts covered by judicial notice (Sec. 1, Rule 129), judicial admissions (Sec. 2
Rule 129), or on matters not otherwise disputed by them. In cases requiring the
presentation of government witnesses or evidence, the Trial Prosecutor should exert
every effort to secure a waiver by the accused of objections to the admissibility of
certain documentary evidence, e.g., medical or death cenificare, necropsy report,
forensic chemistry report, ballistics report, PhilippineOverseas and Employment
Administration (POEA) Certification, and the like, if such evidence has no relevance
whatsoever to the theory of the defense, in order to d~spense with the presentation
and testimony in court of government witnesses. Whenever appropriate or necessary,
the counter-affidavit of the accused submitted luring the preliminary investigation
may be resorted to or availed of to denions~rate or establish the defense theory;
c)
d)
e)
f)
SEC. 4. Plea of guilty to a lesser offense. - The following rules shall apply to cases
where the accused pleads guilty to a lesser offense:
a)
b)
c)
79
ibid, p.1037.
The Trial Prosecutor shall immediately move for the suspension of the
proceedings whenever the accused manifests his intention in court to
plead guilty to a lesser offense. This will enable the Trial Prosecutor
to evaluate the implications of the offer.
If the lesser offense to which the accused will plead guilty is not a
capital offense, the Trial Prosecutor may dispense with the
presentation of evidence unless the court directs otherwise.
The Trial Prosecutor, with the consent of the offended party, may
motu propno agree to the offer of the accused to plead guilty to a
lesser offense if the penalty imposable therefor is prision correcional
(maximum of six [61 years) or less or a fine not exceeding
P12,OOO.OO.
d)
e)
When the penalty imposable for the offense charged is prision mayor
(at least six [6] years and one [11 day or higher) or a fine exceeding
~12,OOO.OO, the Trial Prosecutor shall first submit his
comment/recommendation to the City or Provincial Prosecutor or to
the Chief State Prosecutor, as the case may be, for approval. If the
recommendation is approved in writing, the Trial Prosecutor, may,
with the consent of the offended party, agree to a plea of guilty to a
lesser offense. For this purpose, the Chief State Prosecutor or the
Provincial or City Prosecutor concerned shall act on the
recommendation of the Trial Prosecutor within forty-eight (48) hours
from receipt thereof. In no case shall the subject plea to a lesser
offense be allowed without the written approval of the above
respective heads of office.
In all cases, the penalty for the lesser offense to which the accused
may be allowed to plead guilty shall not be more than two (2)
degrees lower than the imposable penalty for the crime charged,
notwithstanding the presence of mitigating circumstances. The lesser
offense shall also be one that is necessarily related to the offense
charged or the offense must belong to the same classification or title
under the Revised Penal Code or therelevant special laws. 80
However, the plea of guilty to a lesser offense may not be allowed where it so
contravenes lo~ nd common sense as to be unconscionable, thereby resulting in
us, where the offense charged is homicide, a plea of guilty to a lesser offense of frustrated or
attempted homicide, may not be allowed, since the fact of death cannot be reconciled with the
plea of guilty to frustrated or attempted homicide. Homicide necessarily produces death,
while frustrated or attempted homicide does not. 81
SEC. 5. when accused pleads guilty to a capital offense. - If the accused pleads guilty
to a capital offense, the Trial Prosecutor must present evidence to prove the guilt of the
accused and the precise degree of his culpability. This is mandatory.
81
Prosecutor shall always be prepared to conduct the prosecution with his witnesses who shall
be subpoenaed well in advance of the scheduled trial dates. 4 No postponement of the trial or
other proceedings of a criminal case shall be initiated or caused by the Trial Prosecutor except
in instances where the postponement is occasioned by the absence of material witnesses or for
other causes beyond his control or not attributable to him.
SEC. 4. Order of presentation of witnesses. a)
The order in the presentation of witnesses will be left to the
discretion of the Trial Prosecutor. However, the prosecutor should take into
consideration the order of events as established by the evidence of the
prosecution.
b)
Witnesses who will testify for the first time shall be afforded the
opportunity to be advised to observe criminal proceedings in court to help
them overcome their anxiety, excitement and tension.
SEC. 5. Preparation of formal offer of exhibits. - The Trial Prosecutor shall safely
keep his documentary and other physical evidence and prepare a list thereof in the order they
have been marked as exhibits, identifying each by letter or number, describing it briefly, and
stating its specific purpose or purposes.
SEC. 6. Defense evidence. a)
Before reception of evidence for the defense starts, the Trial Prosecutor shall
ask from the adverse counsel the number of witnesses he intends to present.
b)
If the names of defense witnesses are disclosed the Trial Prosecutor shall elicit from
reliable sources the whereabouts of these witnesses, their moral character,,
background, reasons for testifying and
relationship with the accused, among other things, to enable him to have a clear view
of the defense of the accused.
SEC. 7. Discharge of accused to he state witness. - When two or more persons are jointly
charged with the commission of any offense, upon motion of the prosecution before resting its case, the
court may direct one or more of the accused to be discharged with their consent so that they may be
witnesses for the state provided the court, after hearing, is satisfied that:
c)
a)
There is absolute necessity for the testimony of the accused whose discharge
is requested.5
b)
There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused,6 as when he alone has
knowledge of the crime, and not when his testimony would simply corroborate or
otherwise strengthen the evidence in the hands of the prosecution;7
The testimony of said accused can be substantially corroborated in its material points.
This is an indispensable requirement because it is a notorious fact in human nature
that a culprit, confessing to a crime, is likely to put the blame on others rather than
himself. Thus, even though a court may get the statement of a discharged accused
that other particular persons were engaged in the crime, it is unsafe to accept without
corroborating evidence, his statements concerning the relative blame to be attached to
d)
e)
Evidence adduced in support of the discharge sha11 automatically form part of the trial. If
the court denies the motion for discharge of the accused as state witness, his sworn statement
shall be inadmissible in evidence.
c) The parties may then respectively present rebutting evidence only, unless
the court, in furtherance of justice, permits them to present additional
evidence bearing upon the main issue.
d) Upon admission of the evidence, the case shall be deemed submitted for decision
unless the court directs the parties to argue orally or to submit memoranda.
e) However, when the accused admits the act or omission charged in the complaint
or information but interposes a lawful defense, the order of trial may be modified
accordingly.
SEC. 14. Presentation of witnesses.- The order in the presentation of witnesses shall, as far as
practicable, conform to he logical sequence of events obtaining in the case on trial in order to present a
clear, organized and coherent picture to the court of the prosecution's evidence.
For example, in the case of prosecution under the Dangerous Drugs Law, the Trial Prosecutor
should present the forensic chemist who examined the dangerous drug ahead of the other
witnesses in order that the court may at once have a view of the real evidence (either the
prohibited or regulated drug subject of the case) and so that such evidence may immediately
identified by the other witnesses thus avoiding the recall of witnesses later on.
The rule of logical sequencing notwithstanding, a witness whose testimony is vital to the case
and whose life is in danger or who may be sick/injured arid may possibly die, should be made to testify
as early as practicable.
SEC. 15. Examination of witnesses for the prosecution.-Where it shall satisfactorily appear
that the witness for the prosecution is too sick or infirm to appear at the trial as directed by order of the
court, or has to leave the Philippines with no definite date of returning thereto, he may forthwith be
conditionally examined before the judge or the court where the case is pending. Such examination in
the presence of the accused, or after reasonable notice to attend the examination has been served on
him, will be conducted in the same manner as an examination at the trial. Failure or refusal on the part
of the accused to attend the examination after notice herein before provided, shall be considered a
waiver. The statement thus taken may be admitted on behalf of or against the accused.
SEC. 16. Cross-Examination of defense witnesses. The prosecutor shall endeavor to secure
well in advance all available information about a defense witness in order to prepare for an effective
cross-examination. Where the testimony of a defense witness bears no effect on the evidence of the
prosecution, a cross-examination need not be conducted.
SEC. 17. Rebuttal evidence.- The presentation and nature of rebuttal evidence will depend on
the effect which the defense evidence may have caused on the prosecution's evidence-in-chief. The
recall of a witness who already testified during the evidence-in-chief presentation merely to refute what
a defense witness may have stated during his defense testimony is not generally a rebuttal evidence.
\Where there is nothing to refute, rebuttal evidence is unnecessary.
48