PRELIMINARY CHAPTER

Resort is made to secret inquiry to discover the culprit and

violence and torture were often employed to extract a
confession.

INTRODUCTION
CRIMINAL PROCEDURE
Criminal Procedure is the method prescribed by law for the
apprehension and prosecution of persons accused of any criminal
offense, and for their punishment, in case of conviction.

The Judge was not limited to the evidence brought before

him but could proceed with his own inquiry which was not
confrontative.
2.

Criminal procedure is concerned with the procedural steps

through which a criminal case passes, commencing with the
initial investigation of a crime and concluding with the
unconditional release of the offender.
It is a generic term used to describe the network of laws and
rules which govern the procedural administration of criminal
justice, e.g., laws and court rules (e.g.. Rules of Criminal
Procedure) governing arrest, search and seizure, bail, etc.
SOURCES OF CRIMINAL PROCEDURE
1.
2.
3.
4.
5.
6.

7.
8.
9.
10.
11.
12.
13.

The Spanish Law of Criminal Procedure.

General Orders No. 58, dated April 23, 1900.
Amendatory Acts passed by the Philippine Commission.
The various quasi acts, the Philippine Bill of 1902, the Jones
Law of 1916, the Tydings-McDuffie Law and the Constitution
of the Philippines.
The Rules of Court of 1940 and the 1964, 1985 and 1988
Rules on Criminal Procedure.
Various Republic Acts, e.g., R.A. No. 240; New Rule 127,
providing for attachment; R.A. No. 296, Judiciary Act of
1948 denning criminal jurisdiction, and B.P. Big. 129 as
amended by R.A. No. 7691; R.A. No. 8249, Creating the
Sandiganbayan; R.A. No. 8349, The Speedy Trial Act of
1998.
Presidential Decrees, e.g., P.D. No. 911; R.A. No. 732, regulating the authority of Prosecuting Fiscals to Conduct
Preliminary Investigation.
Constitution Rights of an Accused under Article III.
The Civil Code. (Arts. 32, 33 and 34)
Judicial decisions applying or interpreting our laws which
form part of our legal system.
R.A. No. 8493, The Speedy Trial Act of 1998.
Circulars.
The Revised Rules on Criminal Procedure.

THREE SYSTEMS OF CRIMINAL PROCEDURE

1.

Inquisitorial. The detection and prosecution of offenders

are not left to the initiative of private parties but to the
officials and agents of the law.

3.

Accusatorial. The accusation is exercised by every

citizen or by a member of the group to which the injured
party belongs.

"Criminal due process requires that the accused must be proceeded

against under the orderly processes of law. In all criminal cases, the judge
should follow the step-by-step procedure required by the rules.
The reason for this is to assure that the State makes no mistake in taking
the life or liberty except that of the guilty."

CRIMINAL JURISDICTION OF COURTS

"CRIMINAL JURISDICTION"

As the action is a combat between the parties, the supposed

offender has the right to be confronted by his accuser.

is the authority to hear and try a particular offense and impose

the punishment for it.
The general rule is that the jurisdiction of a court is determined
by:

The battle in the form of a public trial is judged by a

magistrate who renders the verdict.

(1) the geographical limits of the territory over which it

presides, and

The Mixed System. This is a combination of the

inquisitorial and the accusatorial systems.

(2) the actions (civil and criminal), it is empowered to hear

and decide.
ELEMENTS OF JURISDICTION IN CRIMINAL CASES

Thus, the examination of defendants and other persons

before the filing of the complaint or information may be
inquisitorial.
This is particularly true in the Preliminary examination, for
the purpose of issuing a warrant of arrest.
Under the 1985 Rules on Criminal Procedure, a criminal
action may be instituted by complaint of the offended party
or by information filed by the Fiscal and once the criminal
action is filed in court, the accused has the right to confront
and cross-examine his accuser.
It has, however, been held that:
"As a general rule, a court proceeding in our judicial set-up is
accusatorial or adversary and not inquisitorial in nature. It contemplates two contending parties before the court which hears them
impartially and renders judgment only after trial."4

IMPORTANCE OF DUE PROCESS IN CRIMINAL CASES

"All trial courts, the Sandiganbayan included, are reminded that
they should take all the necessary measures guaranteeing
procedural due process from the inception of custodial
investigation up to rendition of judgment.
They are not to turn a blind eye to procedural irregularities
which transpired before the criminal case reached the court.
The validity and sufficiency of the information are important."

The elements of jurisdiction of a trial court over the subject

matter in a criminal case are:
a.

The nature of the offense and/or penalty attached thereto;

and

b.

The fact that the offense has been committed within the
territorial jurisdiction of the court.

The non-concurrence of either of these two elements may be

challenged by an accused at any stage of the proceedings in the
court below or on appeal.
Failing in one of them, a judgment of conviction is null and void.
REQUISITES FOR
JURISDICTION

VALID

EXERCISE

OF

CRIMINAL

Three important requisites must be present before a court can

validly exercise its power to hear and try a case:
a.
b.
c.

It must have jurisdiction over the subject matter;

It must have jurisdiction over the territory where the
offense was committed;
It must have jurisdiction over the person of the accused.

JURISDICTION OVER THE SUBJECT MATTER is the power to

hear and determine cases of the general class to which the

proceedings in question belong.8

JURISDICTION IS CONFERRED BY LAW
The Philippine Courts have no common law jurisdiction or power,
but only those expressly conferred by the Constitution and
statutes and those necessarily implied to make the express
powers effective.
STATUTE IN FORCE AT COMMENCEMENT OF ACTIONS
DETERMINES JURISDICTION
Jurisdiction over the subject matter is determined by the statute
in force at the time of the commencement of the action and not
at the time of its commission even if the penalty that may be
imposed at the time of its commission is less and does not fall
under the court's jurisdiction.
Jurisdiction is conferred only by the Constitution or by-law.
It cannot be fixed by the will of the parties nor can it be acquired
or diminished by any act of the parties.

JURISDICTION
COMPLAINT

The principle, however, is different, where jurisdiction is

dependent on the nature of the position of the accused at the
time of the commission of the offense.

It was held that the Sandiganbayan has no jurisdiction over an anti-graft

ALLEGATIONS

OF

Moreover, these objections may be raised or considered

motu proprio by the court at any stage of the proceedings or
on appeal.
e.

a.

The general rule is that the jurisdiction of a court is

determined by: (1) the geographical limits of the territory
over which it presides, and (2) the action (civil and criminal)
it is empowered to hear and decide.

b.

As the question of jurisdiction is always of importance, if the

prosecution fails to prove that fact, the court may always
permit it to present additional evidence to show the fact that
the crime was committed within its jurisdiction.

c.

The filing of a complaint or information in Court initiates a

criminal action.
The Court thereby acquires jurisdiction over the case, which
is the authority to hear and determine the case.
When after the filing of the complaint or information a
warrant for the arrest of the accused is issued by the trial
court and the accused either voluntarily submitted himself
to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused.

d.

Lack of jurisdiction over the subject matter of an action is

fatal and an objection based upon this ground may be
interposed at any stage of the proceedings.
Jurisdiction is conferred only by the sovereign authority
which organizes the courts.
When jurisdiction over an offense has not been conferred by
law, the accused cannot confer it by express waiver or

If under the law the court has no jurisdiction over the

subject matter, it cannot take cognizance of the case,
notwithstanding the silence or acquiescence of the accused.
The exception is when there is estoppel by laches to bar
attacks on jurisdiction.

f.

PRINCIPLES OF JURISDICTION

The crime of arbitrary detention was allegedly committed on June 25,

1992 when accused was a Commissioner of the BID. R.A. No. 7975 took
effect on May 6,1995 vesting the Sandiganbayan with exclusive
jurisdiction for crimes committed by public officers corresponding to Grade
27.

HELD: Republic Act No. 7975 (amended by R.A. No. 8249) as regards the
Sandiganbayan's jurisdiction, mode of appeal and other proce- dural
matters, was held as a procedural law and may validly be given
retroactive effect, there being no impairment of contractual or vested
rights.

BY

The jurisdiction of courts in criminal cases is determined by the

allegations of the complaint or information and not by the
findings the court may make after the trial.

In Subido v. Sandiganbayan, jurisdiction was determined by the position

of the accused at the time of the commission of the offense.

The information was filed on 28 July 1995 when accused was already a
private citizen. He claimed that under the law at the time of the
commencement of the action, the Sandiganbayan has no jurisdiction over
him for the offense charged.

DETERMINED

The averments in the complaint or information characterizes the

crime to be prosecuted and the court before which it must be
tried.
In order to determine the jurisdiction of the court in criminal
cases, the complaint must be examined for the purpose of
ascertaining whether or not the facts set out therein and the
punishment provided for by law for such facts fall within the
jurisdiction of the court where the complaint is filed.

In determining whether a case lies within or outside the

jurisdiction of a court, reference to the applicable statute on the
matter is indispensable.
It is a settled rule that jurisdiction of a court is determined by
the statute in force at the time of commencement of action.

otherwise.
Jurisdiction over criminal cases cannot be conferred by
consent.
Even if a party fails to file a motion to quash, he may still
question the jurisdiction of the court later on.

case allegedly committed by public officers who at the time of the filing of
the information falls below Grade 27.

Estoppel by Laches to Question Jurisdiction in Criminal

Cases
Generally, the doctrine of estoppel does not apply as against
the people in criminal prosecutions.
The principle, however, earlier laid down in the case of
Tijam v. Sibonghanoy2'' which bars a party from attacking
the jurisdiction of the court by reason of estoppel by laches
have been extended to criminal cases.
See, however, Fuzume v. Court of'Appeals, holding that
accused or the court may motu proprio raise lack of
jurisdiction over the subject matter in a criminal case for the
first time on Appeal.
Immunity from suit is a jurisdictional question.

g.

Principle that there is no estoppel against State

The settled rule is that the State is not estopped by the
mistakes of its officers and employees. Indeed, in Cruz, Jr.
v. Court of Appeals, the Court declared:
. . . Estoppel does not lie against the government because of the
supposedly mistaken acts or omissions of its agents.
As we declared in People v. Castaneda, "there is the long familiar
rule that erroneous application and enforcement of the law by public
officers do not block subsequent correct application of the statute
and that the government is never estopped by mistake or error on
the part of its agents."

The Court also held in Chua v. Court of Appeals:

. . . While ordinarily, certiorari is unavailing where the appeal period
has lapsed, there are exceptions. Among them are:

(a)
(b)
(c)

(d)

when public welfare and the advancement of public policy

dictates;
when the broader interest of justice so requires;
when the writs issued are null and void; or
when the questioned order amounts to an oppressive exercise
of judicial authority... .

h.

A conviction or acquittal before a court having no

jurisdiction is, like all proceedings in the case, absolutely
void, and is therefore no bar to subsequent indictment and
trial in a court which has jurisdiction of the offense.
ADHERENCE OF JURISDICTION
Once jurisdiction is vested in the court, it is retained up to the
end of the litigation.
Ordinarily, jurisdiction once acquired is not affected by
subsequent legislative enactment placing jurisdiction in another
tribunal.
It remains with the court until the case is finally terminated.
Thus, it has been held that the Sandiganbayan or the courts as
the case may be, cannot be divested of jurisdiction over cases
filed before them by reason ofR.A. No. 7975.

officers mentioned above, exclusive original jurisdiction thereof

shall be vested in the proper regional trial court, metropolitan
trial court, municipal trial court, and municipal circuit trial court,
as the case may be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Big. 129, as amended, was applied
to the pending criminal case in the Sandiganbayan.
The previous law vests jurisdiction in the RTC where none of the
principal accused are occupying positions corresponding to
Salary Grade 27.

a.

b.

Where a complaint is presented in court charging the

defendant with murder, at the close of the trial, the court
finds that the crime committed was assault and battery
only.

It is the duty of the court therefore to dispose of the same

upon the application of any person interested.
The person to whom the instrument belongs has a right to
take his proceeding to the court having jurisdiction of the
offense for the purpose of having his rights in the premises
determined.
f.

Where a court is given jurisdiction over a specific class of

crimes, that jurisdiction will continue whether that class be
enlarged or diminished or whether the penalty for a violation
be increased or diminished.

g.

Where the military authorities had jurisdiction over the

person of a military officer at the time of the alleged
offenses, the jurisdiction having been vested, it is retained
up to the end of the proceedings.

Justices of the peace have original jurisdiction over the

offense of assault and battery, the complaint, however,
gave the Court of First Instance jurisdiction over the alleged
crime.

R.A. No. 7975 by virtue of Section 7 belongs to the exception

rather than a rule.

It retains jurisdiction for the purpose of imposing the

penalty provided for by law for the crime proved to have
been committed.
c.

Where the court has jurisdiction of the subject matter and

the person of the accused, it is not necessary, in order to
maintain that jurisdiction, to decide the case correctly.
The Court has jurisdiction to decide wrongly as well as
rightly.

d.

It is not a jurisdictional defect and one which deprives the

court of its authority to try, convict and pass sentence, that

The court having jurisdiction of the offense has also

jurisdiction to determine the disposition of the instrument
used in the commission of the crime.
As an accessory penalty, the instrument used in the
commission of the offense shall be forfeited unless it
belongs to a third person who is not liable for the offense
which the instrument was used to commit.

In criminal cases, the court must examine the complaint for

the purpose of ascertaining whether or not the facts set out
and the punishment provided by law for such act, fall within
the jurisdiction of the court.
If the criminal act charged is punished by law with a penalty
which pertains to the jurisdiction of the court, it falls under
the original jurisdiction thereof, although the penalty it may
have to impose in accordance with the evidence is below
that which falls under its jurisdiction.

Where a statute changing the jurisdiction of a court has no

retroactive effect, it cannot be applied to a case that was
pending prior to the enactment of the statute.

In Lacson v. Executive Secretary, the amendment in R.A. No.

8249 that in cases where none of the accused are occupying
positions corresponding to Salary Grade "27" or higher, as
prescribed in the said Republic Act No. 6758, or military and PNP

e.

JURISDICTION OVER OFFENSE

EXCEPTION TO PRINCIPLE OF ADHERENCE

The provision is transitory in nature and expresses the

legislature's intention to apply its provisions on jurisdiction to
criminal cases in which trial has not began in the
Sandiganbayan. To this extent R.A. No. 7975 is retroactive.
In another case, the court held that although the Sandiganbayan
has jurisdiction at the time the charge was filed, it lost
jurisdiction upon the enactment of R.A. No. 7975 because he
falls below the rank of full colonel, and trial has not yet begun.

The fact constitutes a mere defect or error curable at any

stage of the action, it does not deprive the court of the
power to pronounce a valid judgment and impose a valid
sentence, and it cannot be made the basis of a writ of
habeas corpus

The term "principal" was deleted so that under the amendment,

if an accomplice belongs to Salary Grade 27, then jurisdiction is
with the Sandiganbayan even if none of the principals belong to
a lower salary grade. The amendment was applied retroactively.

They retain their jurisdiction until the end of the litigation.

Where, however, the subsequent statute expressly provides, or

is construed to the effect that it is applicable to operate as to
actions pending before its enactment.

a criminal action is brought in the name of the City of Manila

instead of the united States.

Jurisdiction once acquired is not lost upon the instance of

the parties but continues until the case is terminated.
h.

Subject matter of jurisdiction in criminal cases is determined

by the authority of the court to impose the penalty
imposable under the applicable statute given the allegation
of a criminal information.
In People v. Purisima, the Court stressed that:
"x x x. In criminal prosecutions, it is settled that the jurisdiction of
the court is not determined by what may be meted out to the
offender after trial, or even by the result of the evidence that would
be presented at the trial, but by the extent of the penalty which the
law imposes for the misdemeanor, crime or violation charged in the
complaint.

If the facts recited in the complaint and the punishment provided for
by law are sufficient to show that the court in which the complaint is
presented has jurisdiction, that court must assume jurisdiction

The same rule was set forth and amplified in People v.

Buissan in the following terms:
xxx [i]n criminal prosecutions, jurisdiction of the court is not
determined by what may be meted out to the offender after trialor
even by the result of the evidence that would be presented during
the trial but by the extent of the penalty which the law imposes,
together with other legal obligations, on the basis of the facts as
recited in the complaint or information constitutive of the offense
charged, for once jurisdiction is acquired by the court in which the
information is filed, it is retained regardless of whether or not the
evidence proves a lesser offense than that charged in the
information.

Thus, it may be that after trial, a penalty lesser than the

maximum imposable under the statute is proper under the
specific facts and circumstances proven at the trial.
In such a case, that lesser penalty may be imposed by the
trial court (provided it has subject-matter jurisdiction under
the rule above referred to) even if the reduced penalty
otherwise falls within the exclusive jurisdiction of an inferior
court.
TERRITORIAL JURISDICTION
It is a fundamental rule that for jurisdiction to be acquired by
courts in criminal cases, the offense should have been
committed or any one of its essential ingredients took place
within the territorial jurisdiction of the court.
Territorial jurisdiction in criminal cases is the territory where the
court has jurisdiction to take cognizance or to try the offense
allegedly committed by the accused.
Thus, it cannot take jurisdiction over a person charged with an
offense allegedly committed outside of that limited territory.

answer for any crime committed by him except in the jurisdiction

where it was committed.
Said rule is- based on the legal provision which prescribes the
essential requisites of a good complaint or information, one of
which is the allegation that the crime was committed within the
jurisdiction of the court where the complaint or information is
filed and that said court has authority to try it.
As was said in the case of United States v. Cunanan, the
jurisdiction of the Courts of First Instance of the Philippine
Islands, in criminal cases is limited to certain well-defined
territory, so that they can not take jurisdiction of persons
charged with an offense alleged to have been committed outside
of that limited territory.
Jurisdiction of the Courts in criminal cases rests upon a different
footing from that in civil cases.
In criminal cases, the people of the State is a party.
The interests of the public require that, to secure the best results
and effects in the punishment of crime, it is necessary to
prosecute and punish the criminal in the very place, as near as
may be, where he committed his crime.
As a result, it has been the uniform legislation, both in statutes
and in constitution, that the venue of a criminal action must be
laid in the place where the crime was committed.
While the laws here do not specifically and in terms require it, it
is the established custom and the uniform holding that criminal
prosecutions must be brought and conducted, except in cases
especially provided by law, in the province where the crime is
committed.
Judicial divisions or districts (now regions) are always fixed by
law so that any changes or alterations of the same can only be
effected by express legislation and not by mere inference or
deduction.

Furthermore, the jurisdiction of a court over the criminal case is

determined by the allegations in the complaint or information.

Proceedings in a criminal case before a judge acting without

jurisdiction are void, but this fact will not preclude the filing of a
new complaint upon the dismissal of the former proceeding.

And once it is so shown, the court may validly take cognizance of

the case.

WHEN PLACE OF CRIME NOT ALLEGED

However, if the evidence adduced during the trial show that the
offense was committed somewhere else, the court should
dismiss the action for want of jurisdiction.
In criminal proceedings, the rule is that one can not be held to

Where the place of the commission of the offense was not

specifically charged, the place may be shown by the evidence.
Thus, the insufficiency of the complaint charging adultery
without stating the place where the acts of adultery were
committed, or that the accused knew the woman was married at

the time of cohabitation, assigned as error as the conviction

thereon amounted to a conviction without informing the
defendants of the nature and character of the offense, and
besides equivalent to a conviction without due process of law.
No such question having been raised before final judgment in the
trial court, but every ingredient of the crime having been
established in the evidence, there was no error committed upon
which to base a reversal of conviction.
ACTION BY COURT WHERE IT HAS NO JURISDICTION
When the record discloses that the crime as alleged in the
complaint was not committed in the province wherein the trial
was had, and the accused was not arrested in that province and
defendant had not fled therefrom, the Court of First Instance of
that province has no jurisdiction to impose sentence.
In such cases, if the court has reasonable ground to believe that
the crime has been committed, the accused should be remanded
to the court of proper jurisdiction for trial.
It has been held that where the court has no jurisdiction at the
time of the filing of the complaint, instead of ordering the
transfer, the court should dismiss the case.
However, in Republic v. Asuncion, and Cunanan v. Arcco, the
Court sanctioned the transfer of the cases from the RTC for lack
of jurisdiction to the Sandiganbayan, while in Lacson v. The
Executive Secretary, the Court (en bane) ordered the transfer of
the cases from the Sandiganbayan for lack of jurisdiction to the
Regional Trial Court of Quezon City which has exclusive original
jurisdiction over said cases.
In Cuyco u. Sandiganbayan, the court ordered the
Sandiganbayan to dismiss the case for lack of jurisdiction, but
informed the Ombudsman that it may re-file the cases with the
court of proper jurisdiction, the RTC of Zamboanga City.
In his concurring opinion, Chief Justice Davide, Jr., asked to
REFER the case to the RTC instead of dismissing the cases.
It is believed that under its supervisory authority, the Supreme
Court and even the Court of Appeals may properly refer the case
to the court of proper jurisdiction.
Courts of the first and second level is without authority to order
the transfer.
If the said courts believe that it has no jurisdiction over the
subject matter, its jurisdiction is limited to simply dismissing the
case.

JURISDICTION OF
CRIMINAL CASES

MUNICIPAL

TRIAL

COURTS

IN

Republic Act No. 7691 which took effect on April 15, 1994
amended B.P. Big. 129, otherwise known as "The Judiciary
Reorganization Act of 1980" by Expanding the Jurisdiction of the
aforementioned courts as follows:
Exclusive Original Jurisdiction
xxx SEC. 2. Section 32 of the same law is hereby amended to
read as follows:
"SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in Criminal Cases.
Except in cases falling within the exclusive original jurisdiction of the
Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction; and
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of
fine, and regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated
thereon, irrespective of kind, nature, value or amount thereof:
Provided, however. That in offenses involving damage to property through
criminal negligence, they shall have exclusive original jurisdiction
thereof."

Interpreting the foregoing law, the Supreme Court issued

Administrative Circular 09-94 as follows:
Subject: Guidelines in the implementation of Republic Act No. 7691,
Entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, Amending
For the Purpose Batas Pambansa Big. 129, otherwise known as the
Judiciary Reorganization Act of 1980."

For the guidance of the Bench and the Bar, the following
guidelines are to be followed in the implementation of Republic
Act No. 7691, entitled "An Act Expanding the Jurisdiction of the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts, Amending for the Purpose Batas Pambansa
Big. 129, otherwise known as the 'Judiciary Reorganization Act of
1980'":
(3) The criminal jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
under Section 32(2) ofB.P. Big. 129, as amended by R.A.
No. 7691, has been increased to cover offenses punishable
with imprisonment not exceeding six (6) years irrespective

of the amount of the fine.

As a consequence, the Regional Trial Courts have no more
original jurisdiction over offenses committed by public
officers and employees in relation to their office, where the
offense is punishable by more than four (4) years and two
(2) months up to six (6) years.
(4) The provisions of Section 32(2) of B.P. Big. 129, as
amended by R.A. No. 7691, apply only to offenses
punishable by imprisonment or fine, or both, in which cases
the amount of the fine is disregarded in determining the
jurisdiction of the court.
However, in cases where the only penalty provided by law is
a fine, the amount thereof shall determine the jurisdiction of
the court in accordance with the original provisions of
Section 32(2) of B.P. Big. 129 which fixed the original
exclusive jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
over offenses punishable with a fine of not more than Four
thousand pesos.
If the amount of the fine exceeds Four thousand pesos, the
Regional Trial Courts shall have jurisdiction, including
offenses committed by public officers and employees in
relation to their office, where the amount of the fine does
not exceed Six thousand pesos.

354, R.P.C.) Article 360, however, of the same code as

amended, provides that the criminal and civil action for
damages in cases of written defamation shall be filed in
the Court of First Instance, etc."
2)

SEC. 268. Jurisdiction of courts. The regional trial court shall have the
exclusive original jurisdiction to try and decide any criminal action or
proceedings for violation of this Code, except those relating to the offense
of failure to register or failure to vote which shall be under the jurisdiction
of the metropolitan or municipal trial courts.
From the decision of the courts, appeal will lie as in other criminal cases.

3) ARTICLE X Jurisdiction Over Dangerous Drugs Cases

SEC. 39. Jurisdiction. The Court of First Instance, Circuit Criminal
Court, and Juvenile and Domestic Relations Court shall have concurrent
original jurisdiction over all cases involving offenses punishable under this
Act:
Provided, That in cities or provinces where there are .Juvenile and
Domestic Relations Courts, the said courts shall take exclusive cognizance
of cases where the offenders are under sixteen years of age.

4)

(a) Article 360 of the Revised Penal Code, as amended by

R.A. Nos. 1289 and 4363 on written defamation or libel;
(b) Decree on Intellectual Property (P.D. No. 49, as
amended), which vests upon Courts of First Instance
exclusive jurisdiction over the cases therein mentioned
regardless of the imposable penalty; and
(c) more appropriately, Section 39 of R.A. No. 6425, as
amended by P.D. No. 44, which vests on Courts of First
Instance, Circuit Criminal Courts, and the Juvenile and
Domestic Relations Courts concurrent exclusive original
jurisdiction over all cases involving violations of said
Act.

The opening Paragraph of Section 32 excepts cases falling

within the exclusive original jurisdiction of Regional Trial
Court and of the Sandiganbayan from the expanded
jurisdiction of the aforementioned courts even if the offense
is punishable with imprisonment not exceeding six (6)
years.
In other words, where jurisdiction is determined by the
nature of the offense and not by the penalty, jurisdiction
should remain in the Regional Trial Court or the
Sandiganbayan.

1)

5)

Libel is punishable by prision corrreccional in its

minimum and maximum period or fine or bail. (Article

Cases which falls under the original and exclusive

jurisdiction of the Sandiganbayan regardless of the
imposable penalty.
Thus, the aforementioned exception refers not only to
Section 20 ofB.P. Big. 129 providing for the jurisdiction of
Regional Trial Courts in criminal cases, but also to other
laws which specifically lodged in Regional Trial Courts'
exclusive jurisdiction over specific criminal cases, e.g.,

However, this rule does not apply to offenses involving

damage to property through criminal negligence which are
under the exclusive original jurisdiction of the Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts, irrespective of the amount of the imposable
fine."

For example:

Jurisdiction over Election Offenses

Cases which fall under the original and exclusive jurisdiction

of Family Courts under Republic Act No. 8369 known as the
Family Courts Act of 1997.

CIVIL LIABILITY IRRESPECTIVE OF KIND OR NATURE

Where the offense charged is within its exclusive competence by
reason of the penalty prescribed therefor, an inferior court shall
have jurisdiction to try and decide the case irrespective of the
kind and nature of the civil liability arising from the said offense.

JURISDICTION OVER COMPLEX CRIMES

REPUBLIC ACT NO. 8249

Jurisdiction over the whole complex crime must logically be

lodged with the trial court having jurisdiction to impose the
maximum and most serious penalty imposable on an offense
forming part of the complex crime.

The jurisdiction of the Sandiganbayan under Presidential Decree

No. 1606, as amended by Executive Order No. 184, has been
changed by REPUBLIC ACT NO. 8249 "AN ACT TO
STRENGTHEN
THE
FUNCTIONAL
AND
STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR
THAT PURPOSE PRESIDENTIAL DECREE NO. 1606."

But an indemnification or a reparation or a restitution is merely

an incident of the crime.

A complex crime must be prosecuted integrally, as it were, and

not split into its component offenses and the latter made the
subject of multiple informations possibly brought in different
courts.

Jurisdiction. The Sandiganbayan shall exercise exclusive

original jurisdiction in all cases involving:

The jurisdiction of the courts is not fixed by the incident but by

the nature of the crime itself.

ORIGINAL AND EXCLUSIVE JURISDICTION OF FAMILY

COURTS

Legally speaking, the nature of the crime is determined by the

punishment imposed.

Republic Act No. 8369 established Family Courts granting them

exclusive original jurisdiction over child and family cases
namely:

The jurisdiction of the court is also determined by the amount of

the fine and imprisonment.

Thus, it has been held that the jurisdiction of courts of justice of

the peace over crimes is determined exclusively by the amount
of the fine and imprisonment imposed by the law, that is by the
legal nature of the crime, and in no matter and to no extent
whatever by the civil incidents which accrue to the person
injured by the commission of said crime.
Thus, an inferior court has jurisdiction over a case of simple
seduction defined and penalized under Article 338 of the Revised
Penal Code, as amended, with arresto mayor, regardless of the
civil liability that may be imposed under Article 345 of the same
code. This supersedes U.S. v. Barredo.
Other Imposable Penalties The additional penalty for
habitual delinquency is not considered in determining which
court shall have jurisdiction over a criminal case because such
delinquency is not a crime.
SPECIAL JURISDICTION IN CERTAIN CASES
In the absence of all the Regional Trial Judges in a province or
city, any Metropolitan Trial Judge, Municipal Trial Judge,
Municipal Circuit Trial Judge may hear and decide petitions for a
writ of habeas corpus or application for bail in criminal cases in
the province or city where the absent Regional Trial Judges sit.
CRIMINAL JURISDICTION OF REGIONAL TRIAL COURTS
Regional Trial Courts shall exercise exclusive original jurisdiction
in all criminal cases not within the exclusive jurisdiction of any
court, tribunal or body, except those now falling under the
exclusive and concurrent jurisdiction of the Sandiganbayan
which shall hereafter be exclusively taken cognizance by the
latter.

a.
Criminal case where one or more of the accused is below eighteen
(18) years of age but not less than nine (9) years of age, or where one or
more of the victim is a minor at the time of the commission of the
offense;
Provided, That if the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the accused may have
incurred.
The sentence, however, shall be suspended without need of application
pursuant to Presidential Decree No. 603, otherwise known as the "Child
and Youth Welfare Code."
i.

Cases against minors cognizable under the Dangerous Drugs Acts, as

amended;

j.

Violations of Republic Act No. 7610, otherwise known as the "Special

Protection of Children Against Child Abuse, Exploitation and
Discrimination Act," as amended by Republic Act No. 7658; and

k)

Cases of domestic violence against:

1)

2)

Women which are acts of gender based violence that result,

or are likely to result in physical, sexual or psychological harm
or suffering to women; and other forms of physical abuses
battering or threats and coercion which violates a woman's
personhood, integrity and freedom of movement; and
Children which include the commission of all forms of abuse,
neglect, cruelty, exploitation, violence, and discrimination and
all other conditions prejudicial to their development.

"a. Violations of Republic Act No. 3019, as amended, otherwise

known as the Anti-Graft and Corrupt Practices Act, Republic
Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused
are officials occupying the following positions in the
government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(I) Official of the executive branch occupying the positions
of regional director and higher, otherwise classified as
Grade '27' and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
"(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other
provincial department heads;
"(b) City mayors, vice-mayors, members of the
sangguniang
panlungsod,
city
treasurers,
assessors, engineers, and other city department
heads;
"(c) Officials of the diplomatic service occupying the
position of consul and higher;
"(d) Philippine army and air force colonels,
captains, and all officers of higher rank;

naval

"(e) Officers of the Philippine National Police while

occupying the position of provincial director and
those holding the rank of senior superintendent or
higher;

If an act constitutes a criminal offense, the accused or batterer shall

be subject to criminal proceedings and the corresponding penalties.

"(f) City and provincial prosecutors and their assistants,

and official and prosecutors in the Office of the
Ombudsman and special prosecutor; and

JURISDICTION OF THE SANDIGANBAYAN CHANGED BY

"(g) Presidents, directors or trustees, or managers of

government-owned or -controlled corporations,

state universities or educational institutions or
foundations;

Provided, That the jurisdiction over these petitions shall not

be exclusive of the Supreme Court.

"(2) Members of Congress and officials thereof classified as

Grade '2' and up under the Compensation and Position
Classification Act of 1989;

"In case private individuals are charged as co-principals,

accomplices or accessories with the public officers or
employees including those employed in government-owned
or -controlled corporations, they shall be tried jointly with
said public officers and employees in the proper courts
which shall exercise exclusive jurisdiction over them."

"(3) Members of the judiciary without prejudice to the

provisions of the Constitution;
"(4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution;
and
"(5) All other national and local officials classified as Grade
'27' and higher under the Compensation and Position
Classification Act of 1989.
"b. Other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and
employees mentioned in subsection (a) of this section in
relation to their office.
"c. Civil and criminal case filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986.
In cases where none of the accused are occupying positions
corresponding to Salary Grade '27' or higher, as prescribed
in the said Republic Act No. 6758, or military and PNP
officers mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal
circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Big.
129, as amended.
"The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or orders of
regional trial courts whether in the exercise of their own
original jurisdiction or of their appellate jurisdiction as
herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction
over petitions for the issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus, injunctions, and other
ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including
quo warranto, arising or that may arise in cases filed or
which be filed under Executive Order Nos. 1, 2, 14 and 14A, issued in 1986:

CONSEQUENCE OF AMENDMENTS
As a consequence of these amendments, the Sandiganbayan
partly lost its exclusive original jurisdiction in cases involving:
a.
b.
c.

Violations of R.A. No. 3019;

R.A. No. 1379; and
Chapter II, Section 2, Title VII of the Revised Penal Code.
(Article 210, Direct Bribery; Article 211, Indirect Bribery;
andArticle 212, Corruption of Public Officials).

The Sandiganbayan retains jurisdiction only in cases where the

accused are those enumerated in subsection (a) Section 4 above
and, generally, national and local officials classified as Grade
"27" and higher under the Compensation and Position
Classification Act of 1989.
Moreover, its jurisdiction over other offenses or felonies
committed by public officials and employees in relation to their
office is no longer determined by the prescribed penalty, viz.,
that which is higher than prision correccional or imprisonment
for six years or a fine ofP6,000.00; it is enough that they are
committed by those public officials and employees enumerated
in subsection a, Section 4 above.
However, it retains its exclusive original jurisdiction over civil
and criminal cases filed pursuant to or in connection with E.O.
No. I.
JURISDICTION
OFFICERS

OF

SANDIGANBAYAN

OVER

PUBLIC

non before the Sandiganbayan can validly take cognizance of the

case.
DETERMINATION OF JURISDICTION
Republic Act No. 8249 collated the provisions on the exclusive
jurisdiction of the Sandiganbayan.
Its original jurisdiction as a trial court was made to depend not
on the penalty imposed by the law on crimes and offenses within
its jurisdiction but on the rank and salary grade of the acused
government officials and employees.
To determine the jurisdiction of the Sandiganbayan in cases
involving violations of Rep. Act No. 3019, the reckoning period is
the time of the commission if the offense.
Includes officials specifically mentioned even if below
Grade 27
The specific inclusion of the officials from (a) to (g) constitutes
an exception to the general qualification relating to officials of
the executive branch as "occupying the positions of regional
director and higher, otherwise classified as grade 27 and higher,
of the Compensation and Classification Act of 1989.
In other words, violation of Rep. Act No. 3019 committed by
officials specifically enumerated in (a) to (g) regardless of their
salary grade.
All other officials below grade 27 shall be under the jurisdiction
of the proper trial courts.
PURPOSES
OF
DETERMINING
THE
GOVERNMENT
OFFICIALS
THAT
FALL
WITHIN
THE
ORIGINAL
JURISDICTION OF THE SANDIGANBAYAN IN CASES
INVOLVING VIOLATIONS OF REP. ACT NO. 3019 AND
CHAPTER II, SECTION 2, TITLE VII OF THE REVISED
PENAL CODE BRIBERY (ART. 210), INDIRECT BRIBERY
(ART. 211) AND CORRUPTION OF PUBLIC OFFICIALS
(ART. 212)
Rep. Act No. 7975 has grouped them into five categories, to wit:

Prior to the amendment (R.A. No. 7975), jurisdiction of the

Sandiganbayan for felonies other than violation of R.A. No. 3019
as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII of the Revised Penal Code, embrace all other offenses
provided, the offense was committed in relation to public office
and the prescribed penalty is more than six years.
Under the present law, both the nature of the offense and the
positions occupied by the accused are the conditions sine qua

(1) Officials of the executive branch occupying the positions of

regional director and higher, otherwise classified as grade
27 and higher;
(2) Members of Congress and officials thereof classified as
Grade "27" and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions

of the Constitution;
(4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade "27"
and higher under the Compensation and Position
Classification Act of 1989.
The Sandiganbayan has original jurisdiction over criminal cases
involving crimes and felonies under the first classification:
"a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic
Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused
are officials occupying the following positions in the
government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense.
The exclusive jurisdiction of the Sandiganbayan over those
public officers holding positions classified as Grade 27 refers
to Violations ofR.A. No. 3019, Act No. 1379 and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code
referring to Malfeasance and Misfeasance in office
(1)
(2)
(3)
(4)

Art. 204, knowingly rendering an unjust judgment;

Art. 205, Judgment rendered thru negligence;
Art. 206, Unjust Interlocutory Order;
Art. 207, Malicious Delay in the administration of
justice;
(5) Art. 208, Prosecution of offenses; negligence and
tolerance;
(6) Art. 209, Betrayal of trust by an attorney or solicitor
Revelation of secrets;
(7) Art. 210, Direct Bribery;
(8) Art. 211, Indirect Bribery;
(9) Art. 211-A, Qualified Bribery;
(10)Art. 212, Corruption of public officials.
which does not include the crime of Rebellion or coup d'etat.
With respect to other offenses or felonies whether simple or
complexed with other crimes committed by public officials
and employees mentioned in subsection (a) in relation to
their office.
In other words, the case would fall under the
Sandiganbayan if the crime is committed "in relation to
public office except the crimes of rebellion and coup d'etat.
Sandiganbayan has jurisdiction even if Co-Accused in
Malversation below Grade 27

Two of the felonies that belong to the first classification are

malversation defined and penalized by Article 217 of the Revised
Penal Code, and the illegal use of public funds or property
defined and penalized by Article 220 of the same Code.

not sufficient.
a.

The public office of the accused Municipal Mayor Virginio E.

Villamor is a constituent element of malversation and illegal use
of public funds or property.
Accused mayor's position is classified as SG 27. Since the
Amended Informations alleged that the petitioner conspired with
her co-accused, the municipal mayor, in committing the said
felonies, the fact that her position as municipal accountant is
classified as SG 24 and as such is not an accountable officer is of
no moment; the Sandiganbayan still has exclusive original
jurisdiction over the cases lodged against her.
It must be stressed that a public officer who is not in charge of
public funds or property by virtue of her official position, or even
a private individual, may be liable for malversation or illegal use
of public funds or property if such public officer or private
individual conspires with an accountable public officer to commit
malversation or illegal use of public funds or property.
The determinative fact is that the position of her co-accused, the
municipal mayor, is classified as SG 27, and under the last
paragraph of Section 2 of Rep. Act No. 7975, if the position of
one of the principal accused is classified as SG 27, the
Sandiganbayan has original and exclusive jurisdiction over the
offense.
WHEN IS AN OFFENSE DEEMED COMMITTED IN RELATION
TO PUBLIC OFFICE
The office must be a constituent element of the crime as defined
in the statute.
The test is whether the offense cannot exist without the office.
DETERMINATION OF WHEN CRIME IS IN RELATION TO
PUBLIC OFFICE
How to Determine whether information sufficiently
alleges that the crime was committed in relation to public
office
There are two ways of determining whether or not the information charges that the offense was committed in relation to
public office.
The statement that the "committed in relation to public office" is

Where the public office of the accused is by statute a

constituent element of the crime charged, there is no need
for the Prosecutor to state in the Information specific factual
allegations of the intimacy between the office and the crime
charged, or that the accused committed the crime in the
performance of his duties.
Thus, the public office of the accused Municipal Mayor
Virginio E. Villamor is a constituent element of malversation
and illegal use of public funds or property.

b.

When specific factual allegations of crime committed in

relation to public office required
These are offenses or felonies which are intimately
connected with the public office and are perpetrated by the
public officer or employee while in the performance of his
official functions, through improper or irregular conduct.

Where the office is not a constituent element of the offense

charged there must be specific allegation of facts that it was
intimately related to the discharge of their official duties.
The Sandiganbayan likewise has original jurisdiction over
criminal cases involving crimes or felonies committed by the
public officers and employees enumerated in Section (a)(l) to (5)
under the second classification if the Information contains
specific factual allegations showing the intimate connection
between the offense charged and the public office of the
accused, and the discharge of his official duties or functions
whether improper or irregular.
The requirement is not complied with if the Information merely
alleges that the accused committed the crime charged in relation
to his office because such allegation is merely a conclusion of
law.
In the absence of any allegation that the offense was committed
in relation to the office of the accused or was necessarily
connected with the discharge of their functions, the regional
court, not the Sandiganbayan, has jurisdiction to hear and
decide the case.
Thus, for jurisdiction over crimes committed by public officers in
relation to public office to fall within jurisdiction of the
Sandiganbayan the intimate relation between the offense
charged and the discharge of official duties must be alleged in
the information.
There must be specific factual averments of this relation, except
when the office is a constituent element of the offense charged.

For instance, although public office is not an element of the

crime of murder in abstract, where the offense therein charged
in the information is intimately connected with the respective
offices of the accused and was perpetuated while they were in
the performance, though irregular or improper, of their officials
functions and had no personal motive to commit the crime and
would not have committed it had they not held their public office
and merely obeyed the instruc-don of their superior officer, the
offense may be said to have been committed in relation to their
office.
As explained by the Court
"In People v. Montejo, where the amended information alleged
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups
of police patrol and civilian commandos consisting of regular policemen
and x x x special policemen, appointed and provided by him with pistols
and high power guns and then established a camp x x x at Tipo-tipo which
is under his command x x x supervision and control where his codefendants were stationed, entertained criminal complaints and conducted
the corresponding investigations, as well as assumed the authority to
arrest and detain persons without due process of law and without bringing
them to the proper court, and that in line with this set-up established by
said Mayor of Basilan City as such, and acting upon his orders his codefendants arrested and maltreated Awalin Tebag who died in
consequence thereof.

The court held that the offense charged was committed in

relation to the office of the accused because it was perpetrated
while they were in the performance, though improper or
irregular of their official functions and would not have been
committed had they not held their office, besides, the accused
had no personal motive in committing the crime, thus, there was
an intimate connection between the offense and the office of the
accused.
In the afore-cited case of People v. Montejo, it is noteworthy
that the phrase committed in relation to public office does not
appear in the information, which only signifies that the said
phrase is not what determines the jurisdiction of the
Sandiganbayan.
What is controlling is the specific factual allegations in the
information that would indicate the close intimacy between the
discharge of the accused's official duties and the commission of
the offense charged, in order to qualify the crime as having been
committed in relation to public office.
Where however, from the allegations of the information, it does
not appear that the official positions of the accused were
connected with the offenses charged, it cannot be said that they
are charged of an offense committed in relation to their official

position.
The difference between Montilla and Montejo is that, whereas in
the former (Montilla), the murder was committed outside office
hours and for personal or political motives, the victim in the
latter case (Montejo) was killed while he was undergoing
custodial investigation in the police substation.

Thus, in the case of Bartolome, there is no showing that the

alleged falsification was committed by the accused, if at all,
as a consequence of, and while they were discharging
official functions.
The information does not allege that there was an intimate
connection between the discharge of official duties and of
the offense.

The crime in Montejo would not have been committed were it not
for the fact that the accused were actually discharging official
functions at the time.

The case did not come under the jurisdiction of the

Sandiganbayan.

Thus, the offense charged in Montejo was committed in relation

to the office of the accused because it was perpetrated while
they were in the performance, though improper or irregular of
their official functions and would not have been committed had
they not held their office; besides, the accused had no personal
motive in committing the crime; thus, there was an intimate
connection between the offense and the office of the accused.
Upon the otherhand, although the information alleged that the
principal accused committed the crime in relation to their public
office, but there is no specific allegation of facts that the
shooting of the victim by the said principal accused was
intimately related to the discharge of their official duties as
police officers, or does not indicate that the said accused
arrested and investigated the victim and then killed the latter
while in their custody, the offense charged in the subject
criminal cases is plain murder and therefore, within the exclusive
original jurisdiction of the Regional Trial Court, and not the
Sandiganbayan.

For purposes, however, of acquisition of jurisdiction by the

Sandiganbayan, the requirement imposed by R.A. No. 8249
that the offense be "committed in relation" to the offender's
office is entirely distinct from the concept of taking
advantage of one's position as provided under Articles 171
and 172 of the Revised Penal Code.
2.

The crime of rape with homicide is not an offense committed

in relation to the office of the petitioner.
In Montilla v. Hilario, this Court, described the "offense
committed in relation to the office" as follows:
"The taking of human life is either murder or homicide whether done
by a private citizen or public servant, and the penalty is the same
except when the perpetrator, being a public functionary, took
advantage of his office, as alleged in this case, in which event the
penalty is increased.
But the use or abuse of office does not adhere to the crime as an
element; and even as an aggravating circumstance, its materiality
arises, not from the allegations but on the proof; not from the fact
that the criminals are public officials but from the manner of the
cornmission of the crime.

"Thus, the informations do not indicate that the accused arrested and
investigated the victims and then killed the latter in the course of the
investigation but merely allege that the accused, for the purpose of
extracting or extorting the sum of P353,000.00 abducted, kidnapped and
detained the two victims, and failing in their common purpose, they shot
and killed the said victims.

There is no direct relation between the commission of the crime of

rape with homicide and the petitioner's office as municipal mayor
because public office is not an essential element of the crime
charged.

For the purpose of determining jurisdiction, it is these allegations that

shall control, and not the evidence presented by the prosecution at the
trial.

The offense can stand independently of the office.

Consequently, for failure to show in the amended informations

that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the
offense charged in the subject criminal cases is plain murder
and, therefore, within the exclusive original jurisdiction of the
Regional Trial Court, not the Sandiganbayan.
1.

Falsification of an official document is not within the

jurisdiction of the Sandiganbayan unless committed in
relation to the public office of the public officer.

Moreover, it is not even alleged in the information that the

commission of the crime charged was intimately connected with the
performance of the petitioner's official functions to make it fall under
the exception laid down in People v. Montejo."

3.

Acts of Lasciviousness filed against an MTC Judge committed

against Court personnel whom he is authorized to
recommend appointment under Supreme Court circular
and used his official position in committing the act
complained of, the crime was held as having been
committed in relation to his office.

While public office is not an element of the crime of

lasciviousness he could not have committed the crime
charged were it not for the fact that as Presiding Judge of
the MTCC branch, he has authority to recommend her
appointment as bookbinder.
The crime committed as alleged in the amended information
are intimately connected with his office.
A mere allegation that the crime was committed in relation
to public office is not what determines the jurisdiction of the
Sandiganbayan.
What is controlling is the specific factual allegation in the
information that would indicate the close intimacy between
the discharge of the accuser's official duties and the
commission of the of the offense charged, in order to qualify
the crime as having been committed in relation to public
office.
4.

5.

Where the killing committed by a PNP officer was committed

while in the course of trying to restore local public order
which had been breached by a fistfight between the victim
and two other individuals, the killing was committed in
relation to the accused's public office.
Where the amended information contained allegations that
the accused, petitioner took advantage of his official
functions as municipal mayor ofMeycauayan, Bulacan when
he committed the crime of grave threats as defined in
Article 282 of the Revised Penal Code against complainant
Simeon G. Legaspi, a municipal councilor; and. The Office of
the Special Prosecutor charged petitioner with aiming a gun
at and threatening to kill Legaspi during a public hearing,
after the latter had rendered a privilege speech critical of
petitioner's administration.
Clearly, based on such allegations, the crime charged is
intimately connected with the discharge of petitioner's
official functions.
If he was not the mayor, he would not have been irritated or
angered by whatever private complainant might have said
during said privilege speech."
Thus, based on the allegations in the information, the
Sandiganbayan correctly assumed jurisdiction over the case.

6.

The same principles were stressed in Soller v.

Sandiganbayan, where the Municipal Mayor and others were
charged in the Sandiganbayan with Obstruction of

Apprehension and Prosecution of Criminal Offenses as

denned and penalized under P.D. No. 1829 for tampering
with the autopsy and police reports to mislead the
investigation of the fatal shootout of the victim.

office.

But aside from noting the absence of specific factual

allegations, that the offense was committed in relation to
public office, the court found that the preparation of police
and autopsy reports and the presentation and gathering of
evidence in the investigation of criminal cases are not
among the duties and functions and the broad responsibility
to maintain peace and order cannot be basis for construing
that that the criminal acts imputed to the mayor.

Thus, in Republic v. Asuncion, the information did not disclose

that the offense of homicide charged against the accused who
was a member of the PNP was committed in relation to the office
of the accused, but the trial court, during the progress of the
trial dismissed the case without prejudice for refiling in the
Sandiganbayan.

Of tampering and falsifying the autopsy reports, were

committed in relation to his office.
7.

Where the Informations allege that petitioner, then a "public

officer," committed the crimes of murder and frustrated
murder "in relation to his office," i.e., as "Community
Environment and Natural Resources Officer" of the DENR.

This was a mistake that misled the prosecution in subsequent

cases.

The Supreme Court en bane speaking thru Justice Davide, Jr.,

surmised that the absence of an allegation that the crime was
committed "in relation to his office" was because of the
erroneous doctrine in Deloso u. Domingo which conveyed the
impression that this was not necessary.
Hence, the court a quo was directed to conduct a preliminary
hearing to determine whether the crime charged was committed
by the respondents in relation to his office.

It is apparent from this allegation that the offenses charged

are intimately connected with petitioner's office and were
perpetrated while he was in the performance of his official
functions.

If it be determined in the affirmative, then it shall order the

transfer of the case to the Sandiganbayan which shall forthwith
docket and proceed with the case as if the same were originally
filed with it.

In its Resolution dated August 25,1992, the Sandiganbayan

held that petitioner was "on duty up in order to prevent
incursions into the forest and wooded area," and that
petitioner, as a guard, was "precisely furnished with a
firearm in order to resist entry by force or intimidation."

Otherwise, the court a quo shall proceed with the case.

Indeed, if petitioner was not on duty at the DENR checkpoint

on January 14, 1990, he would not have had the bloody
encounter with Mayor Cortez and his men.
Thus, based on the allegations in the Informations, the
Sandiganbayan correctly assumed jurisdiction over the
cases.
JURISDICTION
EXPLAINED

NOT

DETERMINED

BY

ALLEGATIONS

In Republic u. Asuncion, the Court stressed that the foregoing

requisites must be alleged in the information for the
Sandiganbayan to have jurisdiction.
It was, however, held in one case that under Section 4, P.D. No.
1606, when the penalty prescribed by law is higher than Prision
Correccional, the Sandiganbayan has jurisdiction, without stating
that the offense was committed in relation to the offender's

10

In Cunanan u. Arceo, the information for murder against a PNP

contained no averment that the offense charged was in relation
to his public office, hence, the court proceeded to trial and after
ooth parties have presented their evidence declared the case
submitted for decision.
The trial court applied Republic v. Asuncion, and conducted a
hearing solely to ascertain if accused had committed the offense
charged in relation to his office, and found that he did.
The trial court accordingly dismissed the case for lack of
jurisdiction for refiling with the Sandiganbayan pursuant to the
"Asuncion Ruling."
In a further order, the trial judge modified the dismissal by
ordering instead the transfer of the case to the Sandiganbayan.
The Supreme Court speaking thru the Third Division did not
consider the absence of an allegation in the information that the
offense was committed in relation to his office.
The Court stated:

It is firmly settled that jurisdiction over the offense charged is a matter

that is conferred by law. Whenever the above two (2) requisites are
present, jurisdiction over the offense is vested in the Sandiganbayan.
This is true even though the information originally Sled before the RTC did
not aver that the accused public officer public had committed the offense
charged in relation to his office.
In other words, the absence in the old information filed before the RTC af
an allegation that petitioner Cunanan has committed the offense in
relation to his office is immaterial insofar as determination of the locus of
jurisdiction is concerned.
Indeed, it may be recalled that bhe Asuncion ruling involved a situation
where the information similarly did not contain an averment that the
accused public officer had committed the offense charged while carrying
out his official duties.

On the contrary, Asuncion stressed that the public officers or

employees committed the crime in relation to their office must,
however be alleged in the information for the Sandiganbayan to
have jurisdiction over a case under Section 4(a)(2).
This allegation is necessary because of the unbending rule that
jurisdiction is determined by the allegations of the information.
In the subsequent case of People v. Magallanes, where the
accused were charged with kidnapping for ransom with murder
wherein some of the accused were members of the PNP, the
information does not indicate that the accused arrested and
investigated the victims and then killed the latter in the course
of the investigation.

It was precisely to address the situation that the Supreme Court in

Asuncion fashioned the rule directing the conduct of a preliminary ar
separate hearing by a trial court to determine the presence or absence of
that jurisdictional element.

The informations merely alleged that the accused, for the

purpose of extracting and extorting money, abducted, kidnapped
and detained the two victims, and failing in their common
purpose, they shot and killed the said victims.

The RTC's initial assumption of jurisdiction over the offense

charged in this case did not, therefore, prevent it from
subsequently declaring itself to be without jurisdiction, lack of
jurisdiction
having
become
apparent
from
subsequent
proceedings in that case.

The Supreme Court thru the First Division speaking thru Justice
Davide, Jr., also the ponente in the Asuncion case stated: "For
the purpose of determining jurisdiction, it is these allegations
that shall control, and not the evidence presented by the
prosecution at the trial." (Italics Supplied)

JURISDICTION MUST BE DETERMINED BY ALLEGATIONS

IN THE COMPLAINT

The court held that the allegations of "taking advantage of his

position or their respective positions" incorporated in the
informations is not sufficient to bring the offenses within the
definition of "offenses commited in relation to public office."

The foregoing pronouncements is not in accord with the wellsettled rule that jurisdiction is determined by the allegations of
the complaint and not by the finding of the court after trial.
The Asuncion case did not hold that the absence of an allegation
of the offense having been committed "in relation to his office"
as immaterial, but justified the absence thereof as having been
caused by the erroneous ruling in the case of Deloso v.
Domingo.
The court did not fashion the rule directing the conduct of a
preliminary or separate hearing to determine the absence or
presence of that jurisdictional element.

This was also the ruling in Lacson v. Executive Secretary.

It should, however, be noted that under Republic Act No. 7975,
jurisdiction of the Sandiganbayan over other offenses or felonies
committed by public officials and employees in relation to their
office is no longer determined by the prescribed penalty.
It is enough that theyare committed by those public officials and
employees enumerated in subsection a, Section 4, R.A. No.
8249.
It is when the erring public official is not among the enumerated
functionaries, that jurisdiction by courts other than the
Sandiganbayan is to be determined by the penalty prescribed by
law.
EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER
a.

Under Section 2 of Executive Order No. 14, the

Sandiganbayan has exclusive and original jurisdiction over
all cases regarding the "funds, moneys, assets and
properties illegally acquired by former President Ferdinand
E. Marcos x x x civil or criminal, including incidents arising
from such cases.
The decision of the Sandiganbayan is subject to review on
certiorari exclusively by the Supreme Court."
In the exercise of its functions, the PCGG is a co-equal body
with the Regional Trial Courts and co-equal bodies have no
power to control the other.

In Montilla u. Hilario, such an allegation was merely considered

as an allegation of an aggravating circumstance and not as one
that qualifies the crime as having been committed in relation to
public office.
Also, in Bartolome u. People of the Philippines, despite the
allegations that the accused public official committed the crime
of falsification of official document by "taking advantage of their
official positions," the court held that the Sandiganbayan had no
jurisdiction over the case, because "the information (did) not
allege that there was an intimate connection between the
discharge of official duties and the commissison of the offense."

PCGG

The Regional Trial Courts and the Court of Appeals have no

jurisdiction over the PCGG in the exercise of its powers
under the applicable Executive Orders and Section 26,
Article XVIII of the 1987 Constitution and, therefore, may
not interfere with and restrain or set aside the orders and
actions of the PCGG acting for and in behalf of said
Commission.
b.

Exclusive Jurisdiction over Cases Filed by PCGG

It did so only because of the peculiar circumstance that the

omission may have been due to inadvertence in view of the
misleading pronouncement in Deloso.

Accordingly, for lack of an allegation in the informations that the

offenses were committed in relation to the office of the accused.

The exclusive jurisdiction of the Sandiganbayan over civil

and criminal cases filed by PCGG, as well as incidents arising
from, incidental or related to such cases is subject to review
on certiorari exclusively by the Supreme Court.

Asuncion has not, however, departed from the rule that

jurisdiction is to be determined by the allegations of the
complaint.

PNP officer or were intimately connected with the discharge of

the functions of the accused, the subject cases come within the
jurisdiction of the Regional Trial Court and not of the
Sandiganbayan.

The fact of sequestration alone does not, however,

automatically oust the RTC of jurisdiction to decide upon the
question of ownership (of the subject gaming and office
equipment of the Philippine Casino Operators Corporation).

11

The PCGG must be a party to the suit in order that the

Sandiganbayan's exclusive jurisdiction may be correctly
invoked.

c.

for the recovery of ill-gotten wealth.

But where the PCGG is not a party to the case, and the
complaint is solely between PAGCOR and PCOC, the RTC has
jurisdiction under Sec. 19 ofB.P. Big. 129 over PAGCOR's
action for recovery of personal property, even if said
property was under sequestration by the PCGG.

The Court ruled that sequestered assets and corporations

are legally and technically in custodia legis, under the
administration of the PCGG. Executive Order No. 2
specifically
prohibits
the
transfer,
conveyance,
encumbrance, or otherwise depletion or concealment of
such assets and properties, under pain of penalties prescribed by law.

Sandiganbayan jurisdiction includes all incidents

from, incidental to or related to principal causes of
action

Thus, an action which can result in the deterioration and

disappearance of the sequestered assets cannot be allowed,
unless there is a final adjudication and disposition of the
issue as to whether these assets are ill-gotten or not, since
it may result in damage or prejudice to the Republic of the
Philippines.

In subsequent cases jointly decided on August 10, 1988, the

Court pointed out that: "(the) exclusive jurisdiction
conferred on the Sandiganbayan would evidently extend not
only to the principal causes of action, i.e., the recovery of
alleged ill-gotten wealth, but also to 'all incidents arising
from, incidental to, or related to, such cases,' such as the
dispute over the sale of shares, the propriety of the issuance
of ancillary writs or provisional remedies relative thereto,
the sequestration thereof, which may not be made the
subject of separate actions or proceedings in another
forum."
Likewise, in the case of Republic v. Sandiganbayan, the
Court ruled that while the PCGG is ordinarily allowed a free
hand in the exercise of its administrative or executive
function, the Sandiganbayan is empowered to determine in
an appropriate case, if in the exercise of such functions, the
PCGG has gravely abused its discretion or has overstepped
the boundaries of the power conferred upon it by law.
The Court stated:

The Sandiganbayan has jurisdiction to annul a judgment of

partition by the RTC involving a sequestration related
property.
d.

Jurisdiction Does Not Include Questions of Business

Judgment
The Court, however, ruled that Sandiganbayan is without
jurisdiction where the matter does not really seek to
question the propriety of the sequestration by the PCGG or
any matter incidental to or arising out of such sequestration
but deals mainly with what is a business judgment.
The Court pointed to Holiday Inn (Phils.), Inc. u.
Sandiganbayan, where the issue related to a management
agreement terminated by the Board of Directors of a
sequestered corporation, 2/3 of the members of such board
being composed by PCGG nominees.
The action for intervention was lodged
Sandiganbayan in the main sequestration case.

with

the

A rule of thumb might be thus: if the PCGG can be properly

impleaded on a cause of action asserted before this Court as a
distinct entity, then this Court would generally exercise jurisdiction;
otherwise, it would not, because, then the 'PCGG character' of the
act or omission in question may, at best, be only incidental.
After all, the presence of PCGG representatives in sequestered
companies does not automatically tear down the corporate veil that
distinguishes the corporation from its officers, directors or
stockholders.
Corporate officers whether nominated by the PCGG or not act,
insofar as third parties are concerned, are (sic) corporate officers.
Contracts entered into by the San Miguel Corporation, for example,
in connection with its poultry operations and the cancellations
thereof, are not PCGG activities which would justify the invocation of
this Court's jurisdiction, even if the contract or suit were
unanimously approved by its board of directors where PCGG
representatives sit.

This Court added:

The subject matter of petitioner's proposed complaint-in-intervention
involves basically, an interpretation of contract, i.e., whether or not
the right of first refusal could and/or should have been observed.
The question of whether or not the sequestered property was
lawfully acquired by Roberto S. Benedicto has no bearing on the
legality of the termination of the management contract by NRHDC's
Board of Directors.
The two are independent and unrelated issues and resolution of
which may proceed independently of each other.
. . . (T)he Sandiganbayan correctly denied jurisdiction over the
proposed complaint-in-intervention.
The original and exclusive jurisdiction given to the Sandiganbayan
over PCGG cases pertains to (a) cases filed by the PCGG, pursuant to
the exercise of its power under Executive Order Nos. 1, 2 and 14, as
amended by the Office of the President, and Article XVIII, Section 26
of the Constitution, i.e., where the principal cause of action is the
recovery of ill-gotten wealth, as well as all incidents arising from,
incidental to or related to such cases and (b) cases filed by those
who wish to question or challenge the commission's acts or orders in
such cases.

The petitioners in that case averred that the Sandiganbayan

has jurisdiction over the action since the action to terminate
the management agreement bears the imprimatur of the
PCGG nominees sitting at the Board, making PCGG the real
party-in-interest.

JURISDICTION OVER FORFEITURE CASES

Settled is the rule that when a law confers jurisdiction upon a court,
it is deemed to have all the incidental powers necessary to render
the exercise of such jurisdiction effective

The Resolution of the Sandiganbayan, which was upheld by

the Supreme Court, ruled on the contrary, thus:

After reviewing the legislative history of the Sandiganbayan and

the Office of the Ombudsman, the Court declared that

In PCGG v. Sandiganbayan, the Court stated that there is a

need to vigorously guard sequestered assets and preserve
them pending resolution of the sequestration case before
the Sandiganbayan, considering the paramount public policy

This Court is of the view that its jurisdiction refers to acts of the
PCGG acting as such whether alone or with other persons, natural or
juridical, and not generally where PCGG representatives act as part
of another juridical person or entity.

Any act or order transgressing the parameter of the objectives for

which the PCGG was created, if tainted with abuse of discretion, is
subject to a remedial action by the Sandiganbayan, the court vested
with exclusive and original jurisdiction over cases involving the PCGG
including cases filed by those who challenge PCGG's acts or orders

12

"Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original
jurisdiction in all cases involving violations of R.A. No. 3019, R.A. No.
1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials occupying the following
positions whether in a permanent, acting or interim capacity, at the time

of the commission of the offense.

It is a civil procreedings in rem but criminal in nature

JURISDICTION OVER MONEY LAUNDERING CASES

The Anti money-laundering law provides for two kinds of cases
which are independent of each other.

The law provided that in petitions for civil forfeiture the

Revised Rules of Court shall apply.

The law created an Anti-Money Laundering Council (AMLC)

tasked with implementing the law, was empowered x x x

In consequence thereof, the Supreme Court issued the

(3) to institute civil forfeiture proceedings and all other

remedial proceedings through the Office of the Solicitor
General;

The criminal action for anti-money laundering offense (Sec. 4)

and the civil forfeiture proceedings (Sec. 12) which may be filed
separately and proceed independently of the criminal
prosecution.

RULE OF PROCEDURE IN CASES OF CIVIL FORFEITURE,

ASSET PRESERVATION, AND FREEZING OF MONETARY
INSTRUMENT, PROPERTY, OR PROCEEDS REPRESENTING,
INVOLVING, OR RELATING TO AN UNLAWFUL ACTIVITY OR
MONEY LAUNDERING OFFENSE UNDER REPUBLIC ACT NO.
9160, AS AMENDED.

a.

The Criminal Action

The Rule expressly provided that

Republic Act No. 9160 as amended (The Anti-Money

Laundering Act of 2001) defines

The Rule shall govern all proceedings for civil forfeiture,

asset preservation and freezing of monetary instrument,
property, or proceeds representing, involving, or relating to
an unlawful activity or a money laundering offense under
Republic Act No. 9160, as amended.

Money Laundering Offense. Money laundering is a crime

whereby the proceeds of an unlawful activity are transacted,
thereby making them appear to have originated from
legitimate sources. It is committed by the following:

The Revised Rules of Court shall apply suppletorily when not

inconsistent with the provisions of this special Rule.

(a) Any person knowing that any monetary instrument or

property represents, involves, or relates to the proceeds
of any unlawful activity, transacts or attempts to
transact said monetary instrument or property.

Title II of the Rule provided only for Civil Forfeiture in the

Regional Trial Court. Thus
SEC.

2. Party to Institute Proceedings. The Republic of the

Philippines, through the Anti-Money Laundering Council,
represented by the Office of the Solicitor General, may
institute actions for civil forfeiture and all other remedial
proceedings in favor of the State of any monetary
instrument, property, or proceeds representing, involving,
or relating to an unlawful activity or a money laundering
offense.

(b) Any person knowing that any monetary instrument or

property involves the proceeds of any unlawful activity,
performs or fails to perform any act as a result of which
he facilitates the offense of money laundering referred
to in paragraph (a) above.
(c) Any person knowing that any monetary instrument or
property is required under this Act to be disclosed and
filed with the Anti-Money Laundering Council (AMLC),
fails to do so.

SEC.

3. Venue of Cases Cognizable by the Regional Trial

Court. A petition for civil forfeiture shall be filed in any
regional trial court of the judicial region where the monetary
instrument, property, or proceeds representing, involving,
or relating to an unlawful activity or to a money laundering
offense are located;

JURISDICTION OF MONEY LAUNDERING CASES

The regional trial courts shall have jurisdiction to try all cases on
money laundering.

provided, however, that where all or any portion of the

monetary instrument, property, or proceeds is located
outside the Philippines, the petition may be filed in the
regional trial court in Manila or of the judicial region where
any portion of the monetary instrument, property, or
proceeds is located, at the option of the petitioner.

Those committed by public officers and private persons who are

in conspiracy with such public officers shall be under the
jurisdiction of the Sandiganbayan.
The foregoing section apparently refers to the criminal offense of
anti-money laundering as defined in Section 4 of the law.
a.

The Civil Forfeiture Proceedings

b.

The Rule Does Not Provide for Civil Forfeiture Before

the Sandiganbayan

13

(4) to cause the filing of complaints with the Department of

Justice or the Ombudsman for the prosecution of money
laundering offenses;
(5) to initiate investigations of covered transactions, money
laundering activities and other violations of this Act.
CIVIL AND CRIMINAL FORFEITURE DISTINGUISHED
It is to be noted that under the Anti-Money Laundering Act, so
far as Civil Forfeiture is concerned it is the AMLC that is
authorized to institute civil forfeiture proceedings and all other
remedial proceedings through the Office of the Solicitor General
with the Regional Trial Court.
There is no similar authority to file such cases with the
Sandiganbayan.
It is only in criminal cases that the AMLC is authorized to cause
the filing of complaints with the Department of Justice or the
Ombudsman for the prosecution of money laundering offenses.
But unlike Civil Forfeiture under R.A. No. 1379 which specifically
authorized its filing by the Ombudsman or thru the Office of
Special Prosecutor in the Sandiganbayan.
No similar authority have been granted the Ombudsman with
respect to civil forfeiture under the Anti-money Laundering Law.
JURISDICTION
OF
SANDIGANBAYAN
TO
BE
DISTINGUISHED FROM JURISDICTION OF OMBUDSMAN
OVER PUBLIC OFFICERS
a.

The Jurisdiction of the Ombudsman to investigate and

prosecute Public Officers for any illegal act or omission is not
exclusive but a shared concurrent authority in respect of the
offense charged.

b.

The Ombudsman's primary power to investigate

dependent on the cases cognizable by Sandiganbayan.

is

The Ombudsman's primary jurisdiction is dependent on the

cases cognizable by the former.
But

the

authority

is

concurrent

with

other

similarly

authorized agencies.
However, the Ombudsman may take over the investigation
of such case at any stage from any investigative agency of
the Government.
This is only directory.
SANDIGANBAYAN
JURISDICTION

NOW

WITH

CERTIORARI

R.A. No. 7975 expressly conferred certiorari jurisdiction in the

Sandiganbayan, in aid of its appellate jurisdiction.
WHERE
PUBLIC
OFFICIAL
CHARGED
ACCOMPLICE OF PRIVATE INDIVIDUAL

AS

MERE

Section 4 of Presidential Decree No. 1606, as amended by

Presidential Decree No. 1861, provides in part "that in case
private individuals are charged as co-principals, accomplices, or
accessories with the public officers or employees, including those
employed in government-owned or -controlled corporations, they
shall be tried jointly with said public officers and employees."
The rule that "accessory follows the principal" appears to
underlie the provision of Presidential Decree No. 1606, for when
private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, the implication
is that the latter was charged as principal.
Hence, if a public officer or employee is charged as a mere
accomplice or accessory with a private individual, as principal,
the corollary implication is that the former shall be tried jointly
with the latter in the ordinary courts.
The rationale is justified by the total absence of a provision in
Presidential Decree No. 1606 directing that all criminal cases
involving public officers and employees, without distinction, be
tried by the Sandiganbayan, even if the criminal involvement of
the public officer is minor or subordinate and inferior to that of
the private individuals charged as principals in the case.
The jurisdiction of the Sandiganbayan is not meant to be so
broad and all-encompassing.
EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER
PCGG
Under Section 2 of Executive Order No. 14, the Sandiganbayan
has exclusive and original jurisdiction over all cases regarding
the "funds, moneys, assets and properties illegally acquired by
former President Ferdinant E. Marcos x x x" civil or criminal,
including incidents arising from such cases.

The decision of the Sandiganbayan is subject to review on

certiorari exclusively by the Supreme Court.
In the exercise of its functions, the PCGG is a co-equal body with
the Regional Trial Courts and co-equal bodies have no power to
control the other.
The Regional Trial Courts and the Court of Appeals have no
jurisdiction over the PCGG in the exercise of its powers under
the applicable Executive Orders and Section 26, Article XVIII of
the 1987 Constitution and, therefore, may not interfere with and
restrain or set aside the orders and actions of the PCGG acting
for and in behalf of said Commission.
EXCLUSIVE JURISDICTION OVER CASES FILED BY PCGG
The exclusive jurisdiction of Sandiganbayan over civil and
criminal cases filed by PCGG, as well as incidents arising from,
incidental or related to such cases is subject to review on
certiorari exclusively by the Supreme Court.
JURISDICTION TO ANNUL JUDGMENTS
The Sandiganbayan has jurisdiction to annul judgments of the
Regional Trial Court in a sequestration related case, such as a
judgment of the Regional Trial Court for the enforcement of a
foreign judgment involving property that has been lawfully
sequestered.
JURISDICTION OVER MILITARY AND PNP
Republic Act No. 7055 AN ACT STRENGTHENING CIVILIAN
SUPREMACY OVER THE MILITARY BY RETURNING TO THE CIVIL
COURTS THE JURISDICTION OVER CERTAIN OFFENSES
INVOLVING MEMBERS OF THE ARMED FORCES OF THE
PHILIPPINES, OTHER PERSONS SUBJECT TO MILITARY LAW,
AND THE MEMBERS OF THE PHILIPPINE NATIONAL POLICE,
REPEALING FOR THE PURPOSE CERTAIN PRESIDENTIAL
DECREES.
SECTION 1. Members of the Armed Forces of the Philippines and
other persons subject to military law, including members of the
Citizens Armed Forces Geographical Units, who commit crimes or
offenses penalized under the Revised Penal Code, other special
penal laws, or local government ordinance, regardless of
whether or not civilians are co-accused, victims, or offended
parties which may be natural or juridical persons, shall be tried
by the proper civil court, except when the offense, as
determined before arraignment by the civil court, is serviceconnected, in which case the offense shall be tried by courtmartial:

14

Provided, That the President of the Philippines may, in the

interest of justice, order or direct at any time before arraignment
that any such crimes or offenses be tried by the proper civil
courts.
As used in this Section, service-connected crimes or offenses
shall be limited to those defined in Articles 54 to 70, Articles 72
to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.
In imposing the penalty for such crimes or offenses, the courtmartial may take into consideration the penalty prescribed
therefor in the Revised Penal Code, other special penal laws, or
local government ordinances.
SEC. 2. Subject to the provisions of Section 1 hereof, all cases
filed or pending for filing with court-martial or other similar
bodies except those where the accused had already been
arraigned, shall, within thirty (30) days following the effectivity
of this Act, be transferred to the proper civil courts:
Provided, That the Chief of the Armed Forces of the Philippines
shall, upon petition before commencement of trial and with the
written consent of the accused, order the transfer of such
expected case or cases to the proper civil courts for trial and
resolution.
SEC. 3. Presidential Decree Nos. 1822, 1822-A, 1850 and 1952,
and all acts general orders, executive orders, and other
presidential issuances, rules and regulations inconsistent with
this Act are hereby repealed or amended accordingly.
The law does not include violations of Republic Act 3019
otherwise known as the Anti-Graft Law even if serviceconnected. Violation of this law falls under the jurisdiction of the
Sandiganbayan or the Regional Trial Court depending on the
nature of the position of the offender.
JURISDICTION OVER THE PNP BY REGULAR COURTS
SEC. 46. Jurisdiction in Criminal Cases. Any provision of law
to the contrary notwithstanding, criminal cases involving PNP
members shall be within the exclusive jurisdiction of the regular
courts;
Provided, That the courts-martial appointed pursuant to
Presidential Decree No. 1850 shall continue to try PC-INP
members who have already been arraigned, to include
appropriate actions thereon by the reviewing authorities
pursuant to Commonwealth Act No. 408, otherwise known as the
Articles of War, as amended and Executive Order No. 178,
otherwise known as the Manual for Courts-Martial;

Provided, further, That criminal cases against PC-INP members

who may have not yet been arraigned upon the effectivity of this
Act shall be transferred to the proper city or provincial
prosecutor or municipal trial court judge.143
MEANING OF REGULAR COURTS
It has been held that the term regular courts in Section 46 of
R.A. No. 6975 means civil courts.
There could have been no other meaning intended since the
primary purpose of the law is to remove from courts martial the
jurisdiction over criminal cases involving members of the PNP
and to vest it in the courts within the judicial system, i.e., the
civil courts which as contradistinguished from courts martial, are
the regular courts.

jurisdiction over civilians for offenses allegedly committed by

them as long as civil courts are open and functioning.
Any judgment rendered by such body relating to a civilian is null
and void for lack of jurisdiction.
The Supreme Court clarified in Tan u. Barrios that "Olaguer
should, in principle, be applied prospectively only to future cases
and cases still ongoing or not yet final when that decision was
promulgated.
Hence, there should be no retroactive nullification of final
judgments, whether of conviction or acquittal, rendered by
military courts against civilians before the promulgation of the
Olaguer decision.
Such final sentences should not be disturbed by the State."
The Supreme Court went on to state:

Courts martial are not courts within the Philippine judicial

system; they pertain to the executive department of the
government and are simply instrumentalities of the executive
power.

"Only in particular cases where the convicted person or the State shows
that there was a serious denial of the Constitutional rights of the accused,
should the nullity of the sentence be declared and retrial be ordered based
on the violation of the constitutional rights of the accused, and not on
Olaguer doctrine.

Otherwise stated, courts martial are not regular courts.

The Sandiganbayan are regular courts within the
contemplation.

If a retrial is no longer possible, the accused should be released since the

judgment against him is null on account of the violation of his
constitutional rights and denial of due process."

law's

JURISDICTION OVER THE PERSON WHEN ACQUIRED

A military officer being dropped from the roll amounts to a

dishonorable discharge which does not terminate his amenability
for the trial in a court martial for the offense he had committed
while an officer of the military.
The fact that Colonel Abadilla was dropped from the rolls should
not lead to the conclusion that he is now beyond the jurisdiction
of the military authorities.

Jurisdiction over the person of the accused is acquired upon his

arrest or upon his voluntary appearance.
RULE IN MILITARY PROCEEDINGS
The rule that jurisdiction over a person is acquired by his arrest
applies only to criminal proceedings instituted before the regular
courts.
It does not apply to proceedings under military law.
WAIVER

His refusal to report for duty or to surrender when ordered

arrested, which led to his name being dropped from the roll of
regular officers of the military cannot thereby render him beyond
the jurisdiction of the military courts for offenses he committed
while still in the military service.

Any objection to the procedure leading to the arrest must

opportunely raised before the accused enters his plea.
The accused is also barred from raising the question
jurisdiction over his person if he enters his plea instead
objecting to the irregularity of the issuance of the warrant
arrest.

MILITARY COURTS
CIVILIANS

VOLUNTARY APPEARANCE

HAVE

NO

JURISDICTION

OVER

A military commission or tribunal cannot try and exercise

be
of
of
of

In a prosecution under Republic Act No. 3019, the Anti-Graft and

15

The filing of a motion to dismiss presupposes that the accused is

within Philippine territory; otherwise, the "voluntary appearance"
is an exercise in futility.
Physical control is indispensable.
If the accused is outside of the Philippines, he cannot be said to
be under the physical control of the Court.
Voluntary appearance is accomplished by appearing for
arraignment.
Such jurisdiction once acquired is not lost upon the instance of
the parties, such as when the accused escapes from the custody
of the law, but continues until the case is terminated.
In such case, the Court may proceed with the trial in absentia of
the accused, provided that there has been an arraignment.
The cases holding that where the accused, after his arrest, filed
a petition for bail, it is too late for him to object thereafter to the
regularity of the issuance of the warrant of arrest are no longer
true.
Under Section 26, Rule 114 of the 2000 Rules on Criminal
Procedure:

JURISDICTION OF MILITARY COURT

If such a conclusion were to prevail, his very own refusal to clear

his name and protect his honor before his superior officers in the
manner prescribed for and expected from a ranking military
officer would be his shield against prosecution.

Corrupt Practices Act, the appearance of a counsel for an

accused who has not been arrested, in the pre-suspension
hearing required under said law, is a voluntary appearance.

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall
not bar the accused from challenging the validity of his arrest or the
legality of the warrant issued thereof, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea.
The court shall resolve the matter as early as practicable but not later
than the start of the trial of the case.

In applications for bail, however, the ACCUSED MUST BE IN

CUSTODY OF LAW to be entitled to bail.
If the accused is charged with a capital offense or an offense
punishable by reclusion perpetua or life imprisonment, the Judge
must have jurisdiction over the person of accused and over the
case.
The rationale behind the rule is that it discourages and prevents
resort to the former pernicious practice whereby the accused
could just send another in his stead to post his bail, without
recognizing the jurisdiction of the court by his personal
appearance therein and compliance with the requirements
therefor.
Thus, in Feliciano v. Pasicolan, where the petitioner who had
been charged with kidnapping with murder went into hiding

without surrendering himself,

motion asking the court to fix
release pending trial, the
pronounced that said petitioner
bail.

and shortly thereafter, filed a

the amount of bail bond for his
Supreme Court categorically
was not eligible for admission to

The person seeking his provisional release under the auspices of

bail need not even wait for a formal complaint or information to
be filed against him as it is available to "all persons" where the
offense is bailable.
This rule is, of course, subject to the condition or limitation that
the applicant is in the custody of the law.
The Court should not even allow a motion for bail to be set for
hearing unless it has acquired jurisdiction over the person of the
accused and the case by its filing in Court.
Custody How Acquired: The accused must be in custody of the
law, either:
a)
b)

By virtue of a warrant or warrantless arrest; or

When he voluntarily submitted himself to the jurisdiction of
the Court by surrendering to the proper authorities.

The mere filing of an application for bail is not sufficient.

This principle is, however, only for purposes of bail.
In other cases, the filing of motion or other papers invoking
affirmative relief is a submission to court's jurisdiction.
Hence, an application for admission to bail of a person against
whom a criminal action has been filed, but who is still at large is
premature.
As a matter of course, upon voluntary appearance of the
accused, the judge should require another motion for bail and
set the same for hearing, with the prosecution notified thereof.
Unless the accused is in the custody of the law, the court may
not even set his application for bail for hearing.
EXCEPTIONS WHEN MERE FILING OF MOTION SUFFICIENT
In Paderanga v. Court of Appeals (supra), the accused having
filed his motion for admission to bail before he was actually and
physically placed under arrest, as he was then confined at the
hospital, and his counsel manifested before the court at the
hearing of the motion that he was submitting custody of the
person of the accused to the local chapter president of the
Integrated Bar of the Philippines, and for purposes of said
hearing on his bail application, he be considered as being in the
custody of the law, the Supreme Court held that he may at that
point and in the factual ambiance thereof, be considered as

being constructively and legally under custody.

Thus, in the likewise peculiar circumstances which attended the
filing of his bail application with the trial court, for purposes of
the hearing thereof he should be deemed to have voluntarily
submitted his person to the custody of the law and necessarily,
to the jurisdiction of the trial court which thereafter granted bail
as prayed for.

the person.
The third is a consequence of the fact that it is the very legality
of the court process forcing the submission of the person of the
accused that is the very issue in a motion to quash a warrant of
arrest.

In fact, an arrest is made either by an actual restraint of the

arrestee or merely by his submission to the custody of the
person making the arrest.

To recapitulate what we have discussed so far, in criminal cases,

jurisdiction over the person of the accused is deemed waived by
the accused when he files any pleading seeking an affirmative
relief, except in cases when he invokes the special jurisdiction of
the court by impugning such jurisdiction over his person.

The latter mode may be exemplified by the so-called "house

arrest" or, in case of military offenders, by being "confined to
quarters" or restricted to the military camp area.

Therefore, in narrow cases involving special appearances, an

accused can invoke the processes of the court even though there
is neither jurisdiction over the person nor custody of the law.

The accused who desires to question the jurisdiction of a court

over his person must appear in court only for the specific
purpose, and if he raises other questions, he waived the
objection to question the jurisdiction over her person.
Failure to quash the information on the ground that, by the
defective arrest, the court did not acquire jurisdiction over the
person of the accused is a waiver to question jurisdiction over
his person.
Under Section 20, Rule 14 of the 1997 Rules on Civil Procedure:
"The inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance."

However, if a person invoking the special jurisdiction of the court

applies for bail, he must first submit himself to the custody of
the law.

There is, however, an exception to the rule that filing pleadings

seeking affirmative relief constitutes voluntary appearance, and
the consequent submission of one's person to the jurisdiction of
the court.
This is in the case of pleadings whose prayer is precisely for the
avoidance of the jurisdiction of the court, which only leads to a
special appearance.
These pleadings are:
(1) in civil cases, motions to dismiss on the ground of lack of
jurisdiction over the person of the defendant, whether or not
other grounds for dismissal are included;

In cases not involving the so-called special appearance, the

general rule applies, i.e., the accused is deemed to have
submitted himself to the jurisdiction of the court upon seeking
affirmative relief
Notwithstanding this, there is no requirement for him to be in
the custody of the law.

JURISDICTION OVER THE PERSON OF THE ACCUSED BY

ARREST OR VOLUNTARY SURRENDER NOT CONDITION
FOR COURT TO GRANT AFFIRMATIVE RELIEF
Except in applications for bail, it is not necessary for the court to
first acquire jurisdiction over the person of the accused to
dismiss the case or grant other relief.

(2) in criminal cases, motions to quash a complaint on the

ground of lack of jurisdiction over the person of the
accused; and

The outright dismissal of the case even aefore the court acquires
jurisdiction over the person of the accused s authorized under
Section 6(a), Rule 112 of the Revised Rules of criminal
Procedure and the Revised Rules on Summary Procedure.
In Allado v. Diokno, the case was dismissed on motion of the
iccused for lack of probable cause without the accused having
been arrested.

(3) motions to quash a warrant of arrest. The first two are

consequences of the fact that failure to file them would
constitute a waiver of the defense of lack of jurisdiction over

In Paul Roberts v. Court of Appeals, the Court was ordered to

hold the issuance of a warrant of arrest in abeyance pending
review by the Secretary of Justice.

16

preliminary investigation.

And in Lacson v. Executive Secretary, the Court ordered the case

transferred from the Sandiganbayan to the RTC which eventually
ordered the dismissal of the case for lack of probable cause.
It was held in People v. Chun, that where the accused believed
that the order of the holding that bail for the crime charged
against him is not a matter of right is null and void, he need not
wait to be arrested before filing the corresponding petition in an
appropriate proceeding assailing the order.
THE REVISED RULES OF CRIMINAL PROCEDURE
(A.M. No. 00-5-03-SC)
EFFECTIVE DECEMBER 1, 2000
RULE 110
PROSECUTION OF OFFENSES

Second: Under the former rule, the commencement of

actions by filing the complaint with the appropriate officer for

Section 1 has accordingly been amended by removing

preliminary investigation were limited to cases falling under the

therefrom the limitation to offenses commenced by complaint

jurisdiction of the Regional Trial Court.

before the appropriate officer for preliminary investigation only

to those offenses cognizable by the Regional Trial Court, but
included to a limited extent cases cognizable by the municipal

This is no longer true.

trial courts.

Under Section 1 of Rule 112, except as provided in Section

7 of said rule, referring to lawful arrests without a warrant,
preliminary investigation is required for an offense punishable by
imprisonment of at least four (4) years, two (2) months and one
(1) day.

It should also be noted section 5, Rule II of Administrative

No. 8 of the Office of the Ombudsman provides that: "Cases
falling under the jurisdiction of the Office of the Ombudsman
which are cognizable by municipal trial courts, including those
subject to the Rule on Summary Procedure may only be filed in
court by Information approved by the Ombudsman, or the

The reason why originally there was no preliminary

SECTION 1.
Institution of Criminal Actions

There are three (3) amendments in this rule:

investigation in cases triable by justice of the peace or municipal

courts was because they involved only minor offenses or
misdemeanors.
The criminal cases then exclusively triable by municipal
exceed six months imprisonment and/or a P200.00 fine.

Francisco u. Court of Appeals, to the effect that the filing of the

Subsequently, however, the offenses exclusively triable by
municipal courts were increased to those punishable with

The opening phrase in the former Rule "For offenses not

subject to the rule on summary procedure in special cases"
was deleted.

The 1988 Amendments abandoned the ruling of the

Supreme Court in People u. Olarte and adopts the ruling in

mary Procedure in special cases from the manner of institution

of criminal actions above provided for.

Third: Under the former rule, prescription is interrupted in

all cases upon the institution of the criminal action.

courts were those where the penalty provided by law did not
First: The removal of cases governed by the Rule on Sum-

proper Deputy Ombudsman in all other cases."

imprisonment of not exceeding four years and two months

and/or a fine ofP4.000.00 and were further increased to those
punishable with imprisonment not exceeding six (6) years

complaint with the fiscal's office also interrupts the period of

prescription of the offense charged.
This includes cases filed with the ombudsman for preliminary investigation.

irrespective of the amount of the fine.

The Rule does not apply to violations of municipal

This phrase was ane of the basis of the ruling of the

Supreme Court in the case of Zaidivia v. Reye1 excluding
offenses subject to summary procedure from the general rule on
the interruption of the period of prescription.

Under the amendment, the institution of all criminal

actions shall be the same.

Clearly, therefore, these offenses were not minor or

misdemeanors

and

yet

no

preliminary

investigation

ordinances and special laws.

was
In Zaidivia u. Reyes, the court held that the interruption of

required.

the prescriptive period upon the institution of the complaint

Since, the type of offenses that requires preliminary investigation have
been expanded by amendment to Section 1, Rule 112 to offenses
punishable by imprisonment of at least four (4) years, two (2) months
and one (1) day, Section 1 required such cases to first be filed for

17

under Section 1 of Rule 110, does not apply to cases for

violation of special acts and municipal ordinances.

This is governed by Act No. 3326 and is interrupted only

Periods of Prescription for Violations Penalized By Special Laws

complainant of the complaint or the certificate or repudiation or

by the institution of judicial proceedings for its investigation and

and Municipal Ordinances and to Provide When Prescription Shall

of the certification to file action issued by the lupon or pangkat

punishment.

Begin To Run."

secretary:

The Court clarified in Reodica u. Court of Appeals, that

even if the case is governed by the Revised Rule on Summary

It provides among others that "violations penalized by

municipal ordinances shall prescribe after two months."

Procedure (which is not a violation of a municipal ordinance or

special law), such as reckless imprudence resulting in slight
physical injuries, prescription is interrupted with the filing of the
complaint in the Fiscal's office.
In view, however, of the ruling in Zaidivia v. Reyes, that
the rules cannot amend special laws, and under Act No. 3326,

judicial proceedings for its investigation and punishment, the

rule has accordingly been amended to except therefrom offenses
punishable by special laws so far as prescription is concerned.

The main basis of the said ruling of the Supreme Court

was that under Act No. 3326 as amended, the prescriptive

The exception therefore, includes violations of municipal

ordinances.

And is interrupted even if the case filed is not within the

jurisdiction of the court.

A distinction is made between the "institution" and the

PRESCRIPTION INTERRUPTED
WITHOUT JURISDICTION

"commencement" of a criminal action.

For offenses which require a preliminary investigation, the

criminal action is instituted by filing the complaint with the
appropriate officer for preliminary investigation.

court.

EVEN

IF

COURT

IS

Prescription is interrupted with the filing of the case even if

the court is without jurisdiction.
The Court, citing Olarte and the subsequent cases of

The appropriate officer may be the fiscal or the municipal

Francisco v. Court of Appeals and People v. Cuaresma.

circuit trial court.

Thus, even if preliminary investigation is not required, "the

prescriptive period for the quasi offenses was interrupted by the

period for violation of special laws and municipal ordinances was

interrupted only upon the filing of the complaint or information in

sixty (60) days from the filing of the complaint with the punong
barangay

the period of prescription for offenses punishable by special laws,

prescription shall only be interrupted upon the institution of

Provided, however, That such interruption shall not exceed

The criminal action is commenced when the complaint or

filing of complaint with the fiscal's office three days after the
vehicular mishap and remained tolled pending the termination of

information is filed in court.

the case."
This ruling was confirmed in the case of Reodica v. Court

In offenses cognizable by inferior courts, the complaint or

ofAppeals11 as an exception to the general rule under Article 91

information is filed directly with said courts, or the complaint is

Exceptions: Unless otherwise provided by special laws (Act

of the Revised Penal Code that the filing of the complaint,

filed with the fiscal. However, in Metro Manila and other

3326) includes violations of municipal ordinance) Prescription

whether for preliminary investigation or for action on the merits,

chartered cities, the complaint may be filed only with the fiscal.

Commences from commission or discovery until institution of

judicial proceedings.

interrupts prescription.
It may, however also be noted that under the Katarungan
Hence, the phrase "unless otherwise provided in special

Pambarangay

Law

while

the

dispute

is

under

laws" was inserted as an exception to the general rule that such

conciliation, or arbitration, the prescriptive periods for offenses

institution shall interrupt the period of prescription of the offense

and cause of action under existing laws shall be interrupted upon

charged.

Act No. 3326, as amended is entitled: "An Act To Establish

filing of the complaint with punong barangay.

The prescriptive periods shall resume upon receipt by the

18

For Violation of Special Laws

mediation

It has been settled that Section 2 of Act No. 3326 governs

the

computation

of

prescription

penalized by special laws.

of

offenses

defined

and

Section 2 of Act No. 3326 was correctly applied by the

anti-graft

court

in

determining

the

reckoning

period

for

national legal system and with internationally recognized human

rights.

SEC. 412. Conciliation.

prescription in a case involving the crime of violation of Republic

Act No. 3019, as amended.

(a) Pre-condition to filing of complaint in court. No complaint,

petition, action, or proceeding involving any matter within

Since

the

law

alleged

to

have

been

violated,

When disputes involve ICCs/Ps, customary laws and

practices shall be used to resolve the dispute.

i.e.,

the authority of the lupon shall be filed or instituted directly

paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended,

in court or any other government office for adjudication,

is a special law, the applicable rule in the computation of the

The National Commission on ICCs/Ps NCIP through its

unless there has been a confrontation between the parties

prescriptive period is Section 2 of Act No. 3326, as amended,

regional offices shall have jurisdiction over all claims and

before the Lupon chairman or the pangkat, and that no

which provides:

disputes involving ICCs/Ps, provided, however, that no such

conciliation or settlement has been reached as certified by

dispute shall be brought to the NCIP unless the parties have

the Lupon secretary or pangkat secretary as attested to by

exhausted all remedies provided under their customary laws to

the Lupon chairman or pangkat chairman or unless the

settle the dispute as certified to by the Council of Elders/Leaders

settlement has been repudiated by the parties thereto.

who participated in the attempt at such settlement.

Sec. 2. Prescription should begin to run from the day of the

commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and institution of
judicial proceedings for its investigation and punishment.

(b) Where parties may go directly to court. The parties may

The prescription shall be interrupted when the proceedings

go directly to court in the following instances:

Decisions of the NCIP shall be appealable to the Court of Appeals by way

of a petition for review.

are instituted against the guilty person and shall begin to run
again

if

the

proceedings

are

dismissed

for

reasons

not

constituting double jeopardy

SEC.

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;

This simply means that if the commission of the crime is

known, the prescriptive period shall commence to run on the day
it was committed.

(3) Where actions are coupled with provisional remedies

personal property, and support pendente life; and

1508, otherwise known as the Katarungang Pambarangay Law.

In lieu thereof, Chapter 7, Title I, Book III provides for the

Katarungang Pambarangay.

Pertinent provisions of the law are as follows:

for

Amicable

Settlement;

authority to bring together the parties actually residing in the

same city or municipality for amicable settlement of all disputes
except:
(a) Where one party is the government or any subdivision or
instrumentality thereof;
(b) Where one party is a public officer or employee, and the

(c) Conciliation
January 1, 1992, expressly repealed Presidential Decree No.

Matter

statute of limitations.

Condition Precedent to Filing of Case

The Local Government Code of 1991 which took effect on

Subject

such as preliminary injunction, attachment, delivery of

(4) Where the action, may otherwise, be barred by the

The Civil Law rules on prescription is applicable to criminal

408.

Exception Thereto. The lupon of each barangay shall have the

among

members

of

indigenous

cultural

dispute relates to the performance of his official functions;

communities. The customs and traditions of indigenous

cultural communities shall be applied in settling disputes
between members of the cultural communities.

However, under Republic Act No. 837, the ICCs/Ps shall

(c) Offenses punishable by imprisonment exceeding one (1)

year or a fine exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private offended party;

have the right to use their own commonly accepted justice

systems, conflict resolution institutions, peace building processes
or mechanisms and other customary laws and practices within
their respective communities and as may be compatible with the

19

(e) Where the dispute involves real properties located in

different cities or municipalities unless the parties thereto
agree to submit their differences to amicable settlement by

an appropriate lupon;

execution of the law violated.

(f) Disputes involving parties who actually reside in barangays

of different cities or municipalities, except where such
barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by
an appropriate lupon;and

complaint or information, or both of which are filed in court.

The provincial fiscal is not among the three.

If a complaint is filed directly in court, the same must

be filed by the offended party and in case of an information,
the same may be filed by the fiscal. However, a "complaint"

The information filed by him which instituted the

filed with the fiscal prior to judicial action may be filed by

proceeding cannot be considered as a complaint.

any person.

(g) Such other classes of disputes which the President may

determine

in

the

interest

of

justice

or

upon

1)

the

Meaning of the term "offended party." The person

actually injured and whose feeling is offended.

recommendation of the Secretary of Justice.

2)

The court in which non-criminal cases not falling within the

authority of the lupon under this Code are filed may, at any time
before trial, motu proprio refer the case to the lupon concerned

e.

A complaint with the fiscal prior to a judicial action

A widow, however, maybe considered an

offended party within the meaning of the applicable
rules of court entitled to file a complaint for the murder
of her husband.2

may be filed by any person.

f.

for amicable settlement.

Justice Davide, Jr., citing Section 12, Rule 110 refers to an
"offended party" in the commission of a crime, public or
private, as the party to whom the offender is civilly liable in
light of Article 100 of the Revised Penal Code that "every
person criminally liable is also civilly liable.

SEC. 2.

Private persons may denounce a violation of banking laws.

A criminal action cannot be instituted against a juridical

person.

g.

To subscribe and swear to criminal complaint is not

ministerial.

The Complaint or Information

Invariably then, the private individual to whom the
offender is civilly liable is the offended party.

Criminal actions must be commenced in the name of the

People of the Philippines. But the defect is merely of form and

In bigamy both the first and second spouses may be the

curable at any stage of the trial.

offended parties depending on the circumstances

3)

to representatives of the government and persons

SEC. 3.

a.
b.

c.

The offended party.

Any peace officer.

Other public officer charged with the enforcement or

Unless the complaint charged is a private offense.

h.

The right to file complaint is personal and abated upon

death.

injured; otherwise, it shall be dismissed.

Complaint Defined
Who May File Complaint

The right to commence criminal prosecution is confined

But the absence of an oath does not invalidate the

complaint.

d.

But One who is not the offended party file a complaint for
preliminary investigation.

MAY INJUNCTION
PROSECUTION

ISSUE

TO

RESTRAIN

CRIMINAL

The general rule is that criminal prosecution may not be

Unless the offense subject of the complaint is one that

restrained or stayed by injunction, preliminary or final.

cannot be prosecuted de oficio, any competent person may

file a complaint for preliminary investigation.

Public interest requires that criminal acts be immediately

investigated and prosecuted for the protection of society.

As a general rule, a criminal action is commenced by a

20

There are, however, exceptions, among which are:

a.

To afford adequate protection to the constitutional rights of

the accused;

b.

When necessary for the orderly administration of justice or

to avoid oppression or multiplicity of actions;

c.

When there is a prejudicial question;

d.

When the acts of the officer are without or in excess of

authority;

e.

Where the prosecution is under an invalid law, ordinance or

regulation;

f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

h.

Where it is a case of persecution rather than prosecution;

i.

Where the charges are manifestly false and motivated by

the lust for vengeance;

j.

When there is clearly no prima facie case against the

accused and a motion to quash on that ground has been
denied; and

k.

Preliminary injunction has been issued by the Supreme

Court

to

prevent

the

threatened

unlawful

arrest

of

petitioners.

21

SEC. 4.
Information defined

"In case the offended party dies or becomes incapacitated before

she could file the complaint and has no known parents, grandparents or

The amendment inadvertently failed to reproduce the statement

that:

guardian, the State shall initiate the criminal action in her behalf. This is
based on the doctrine of parens patriae."

Distinguish Information from Complaint

As distinguished from information, a complaint is:

However, in Municipal Trial Courts or Municipal Circuit Trial Courts

when the prosecutor assigned thereto or to the case is not available, the

Rape is now a crime against person and consequently can

be prosecuted even without a complaint filed by the offended

offended party, any peace officer, or public officer charged with the
enforcement of the law violated may prosecute the case.

party.
a.

Executed by a private party, etc.;

b.

Supported by oath of the complainant; and

c.

Need not necessarily be filed with the court.

This
[A.M. No. 02-2-07-SC. April 10, 2002]

RE: PROPOSED AMENDMENTS TO SECTION 5, RULE 110 OF

THE REVISED RULES OF CRIMINAL PROCEDURE

An information not properly signed cannot be cured by

authority

shall

cease

upon

actual

intervention

of

the

prosecutor or upon elevation of the case to the Regional Trial Court.

This does not, however, mean that the persons mentioned therein
may no longer prosecute the case under the conditions mentioned in the
old rule.

silence, acquiescence or even by express consent.

Acting on the Memorandum dated 2 February 2002 of Court

It must be filed with the court, otherwise it is not an

information.

administrator Presbitero J. Velasco, Jr. submitting for this Court's

consideration and approval the proposed amendment to Sec. 5, Rule L10
of the Revised Rules of Criminal Procedure, the Court Resolved to
APPROVE the amendment to Sec. 5, Rule 110 so as to read as follows:

SEC. 5.
Who must prosecute criminal actions
Under the 1985 amendments, the following sentences were added to the
first paragraph of Sec. 4 of the old Rule 110, to wit:

The amendment was merely intended to regulate the appearance

of the private prosecutor and stress the direction and control of the public
prosecutor in the prosecution of criminal cases.

EFFECT OF LACK OF INTERVENTION BY FISCAL IN TRIAL

OF A CRIMINAL CASE

"Section 5. Who must prosecute criminal actions. All criminal

actions either commenced by complaint or by information shall be
prosecuted under the direction and control of a public prosecutor.

In case of heavy work schedule of the public prosecutor or in the

event of lack of public prosecutors, the private prosecutor may be

Before the 1985 amendment, the Supreme Court, in

Garcia v. Domingo, citing Cariaga v. Justo, held that the absence
of the Assistant Fiscal is not a jurisdictional defect but the court
should have cited the public prosecutor to intervene.

authorized in writing by the Chief of the Prosecution Office or the Regional

"However, in the Municipal Court or Municipal Trial Courts when

there is no fiscal available, the offended party, any peace officer
or public officer charged with the enforcement of the law violated
may prosecute the case.

State Prosecutor to prosecute the case subject to the approval of the

court.

trial to the private prosecutor, he should be present during the

Once so authorized to prosecute the criminal action, the private

This authority ceases upon actual intervention of the fiscal or upon

elevation of the case to the Regional Trial Court. This is based on the
Resolution of the Supreme Court in People v. Beriales."

The rule was modified in People v. Beriales where it was

held that although the Fiscal turns over the active conduct of the

prosecutor shall continue to prosecute the case up to the end of the trial

proceedings

even in the absence of a public prosecutor, unless the authority is revoked

or otherwise withdrawn.

Thus, in the case of People v. Munar, the Court upheld the

right

In the third paragraph of Section 4 of the old Rule 110, the

fol-owing was added:

This amendment to Rule 110 shall take effect on the first day of

of

the

examination

private
of

the

prosecutor
witnesses

therein
because

to
the

conduct

the

government

May 2002 following its publication in two newspapers of general

prosecutors were present at the hearing; hence, the prosecution

circulation on or before 30 April, 2002.

of the case remained under their supervision and control.

22

In the present case, although the private prosecutor had

previously been authorized by the special counsel Rosario R.
Polines

to

present

the

evidence

for

the

either to Dr. Tansingco's competency or his post mortem

findings, the doctor's testimony was dispensed with.

prosecution,

nevertheless, in view of the absence of the City Fiscal at the

hearing on December 13, 1974, it cannot be said that the
prosecution of the case was under the control of the City Fiscal.

It follows that the evidence presented by the private

prosecutor at said hearing could not be considered as evidence
for the plaintiff, the People of the Philippines.

The authority, however, of the provincial prosecutor to

appeal for the People of the Philippines is confined only to the
proceedings before the trial court.

The defense likewise waived the fiscal's presence on that

date."

In appeals before the Court of Appeals or to the Supreme

Court either by petition for review or certiorari, the Solicitor

In Bravo v. Court of Appeals The proceedings was held

General is the sole representative of the People.

to be valid even without the physical presence of Fiscal as

distinguished from Beriales case, where no Fiscal appeared to
prosecute.

Service thru the Provincial Prosecutor is inefficacious and

shall be sufficient ground for dismissal on the petition as
provided in section 3, Rule 46.

There was, therefore, no evidence at all to speak of which

could have been the basis of the decision of the trial court.

Moreover, as aptly observed by the Solicitor General, "to

permit such prosecution of a criminal case by the private
prosecutor with the fiscal in absentia can set an obnoxious
precedent that can be taken advantage of by some indolent
members of the prosecuting arm of the government as well as

Here, the Fiscal appeared but left the prosecution to the

Fiscal's Discretion in Prosecution

private prosecutor under his supervision and control.

Prior to the filing of a case in court:

The Court noted in a subsequent case that the public

prosecutor may turn over the actual prosecution of the criminal
case, in the exercise of his discretion, but he may, at any time,

a.

those who are oblivious of their bounden duty to see to it not

only that the guilty should be convicted, but that the innocent

However, it is necessary that the public prosecutor be

should be acquitted a duty that can only be effectively and

present at the trial until the final termination of the case;

sincerely performed if they actively participated in the conduct of

otherwise, if he is absent, it cannot be gainsaid that the trial is

the case, especially in the examination of the witnesses and the

under his supervision and control.

A prosecuting attorney cannot be compelled to file a particular criminal information.

take over the actual conduct of the trial.

b.

The Court cannot interfere with the Fiscal's discretion and

control of criminal prosecution.

c.

The Court cannot compel the fiscal to prosecute or file

information within a certain period of time.

presentation of documentary evidence for both parties.

The decision appealed from was set aside and the case
remanded to the trial court for another arraignment and trial.

The absence, however, of a prosecutor cannot be raised by

It is the rule that a fiscal by the nature of his office is

an accused to invalidate the testimony of a state witness if he

under no compulsion to file a particular criminal information

cannot prove personal prejudice.

where he is not convinced that he has evidence to support the

allegations thereof.

The same principle was not, however, observed in People

Necessity of Service to Government Counsel

v. Malinao, where the Supreme Court did not consider the

absence of the fiscal prejudicial to the accused "for only Dr.

Failure to serve pleadings and orders upon government

Nicanor L. Tansingco was presented to testify on his autopsy

counsel renders the court orders issued uponsuch petitions or

report on the deceased Manang.

motions of an accused as void.

form a reasonable belief that a person committed an offense, is

not absolute and subject to judicial review, it would be

Notice, however, given to the fiscal is notice to the private

Since no objection was interposed by appellant's counsel,

Although this power and prerogative of the Fiscal to

determine whether or not the evidence at hand is sufficient to

prosecutor.

embarrassing for the prosecuting attorney to be compelled to

prosecute a case when he is in no position to do so, because in
his opinion, he does not have the necessary evidence to secure a

23

conviction, or he is not convinced of the merits of the case.

evidence to support at least aprima facie case.

The prosecuting fiscal has no more control over said cases,

the same having been transferred to the court.

The better procedure would be to appeal the Fiscal's

decision to the Ministry of Justice and/or ask for a special

The courts try and/or convict the accused but as a rule

have no part in the initial decision to prosecute him.

The situation is akin to the pronouncement made in

prosecutor.

Lansang u. Garcia, that whenever a formal complaint is

The possible exception is where there is an unmistakable

The failure of the Fiscal to include the other public officials

who appear to be responsible for the offense charged as co-

showing of a grave abuse of discretion that will justify judicial

presented in court against an individual, the court steps in and

takes control thereof until the same is finally disposed of.

intrusion into the precincts of the executive.

accused in the information does not vitiate the validity of the

However, the matter of instituting an information should

information since the matter of prosecuting witnesses for the

be distinguished from a motion by the fiscal for the dismissal of

People is a prerogative of bhe prosecuting fiscal.

But in such a case, the proper remedy to call for such

exception

is

petition

for

mandamus,

not

certiorari

or

a case already filed in court.

prohibition.
The manner by which the prosecution of a case is handled
is within the sound discretion of the prosecutor and the noninclusion if other guilty persons is irrelevant to the case against
the accused.

The judge may properly deny the motion where, judging

Moreover, before resorting to this relief, the party seeking
the inclusion of another person as a co-accused in the same case
filing of a motion for such inclusion.

evidence of guilt exists.

While the prosecuting officer is required by law to charge

against whom he believes no sufficient evidence of guilt exists.

The appreciation of the evidence involves the use of

discretion on the part of the prosecutor.

A case dismissed before arraignment maybe refiled.

In the landmark case ofCrespo u. Mogul, the Supreme
FULL CONTROL BY THE COURT ONCE INFORMATION FILED
IN COURT
However, in cases where the information had already been
filed in court, the latter acquires jurisdiction over them.

Although the fiscal retains the direction and control of the

vested upon the filing of the information and, once acquired, its

Where the information had already been filed in court, it

cannot impose his opinion on the trial court.

The Court is the best and sole judge on what to do with the case
before it.

should therefore dispose of them, one way or the other,

resolving all motions brought before it including motions to

But even the Supreme Court cannot order the prosecution

"The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court, any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court.

prosecution of criminal cases even while the case is already in Court, he

The decision of the prosecutor may be reversed or

President of the Philippines.

Court, sifter a review of past precedents held:

Otherwise stated, the jurisdiction of the court become

jurisdiction continues until the termination of the case.

modified by the Secretary of Justice or in special cases by the

This is, as it should be, because the case is already in

court and, therefore, within its discretion and control.

all those who, in his opinion, appear to be guilty, he nevertheless

cannot be compelled to include in the information a person

to be sufficient evidence to sustain the prosecution.

must first avail itself of other adequate remedies such as the

The prosecutor cannot be compelled to include in the

information, a person against whom he believes no sufficient

from the record of the preliminary investigation, there appears

dismiss, filed by the Fiscal, or deciding the cases on the merit.

of a person against whom the prosecutor does not find sufficient

24

The determination of the case is within its exclusive jurisdiction and

competence.

A motion to dismiss the case filed by the Fiscal should be

addressed to the Court who has the option to grant or deny the same.

It does not matter if this is done before or after the arraignment of

resolution of the Fiscal to the Secretary of Justice, on the ground

that the crime committed was murder, the RTC refused to defer

Thus, should the fiscal find it proper to conduct a

the arraignment, and allowed the accused to post bail in the sum

reinvestigation of the case, the permission of the court must be

of P20,000 each.

secured.

the accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the
investigation.

The accused were arraigned and entered a plea of not

guilty.

the acquittal of the accused rests in the sound discretion of the court.

A motion to dismiss the case filed by the fiscal should be addressed

the accused or that the motion was filed after a reinvestigation or upon

the

finding

and

The Secretary of Justice found the case to be murder, but

murder upon learning the accused have already been arraigned.

It does not matter if this is done before or after the arraignment of

reinvestigation,

for appropriate action.

withdrew its recommendation to amend the information to

to the court, who has the option to grant or deny the same.

such

recommendations of the fiscal should be submitted to the court

Thus, it is now settled that once a complaint or information is filed

in court any disposition of the case as to its dismissal or the conviction or

After

The Supreme Court clarified that while the fiscal has the
quasi-judicial discretion to determine whether or not a criminal
case should be filed in court, once the case had already been

The Court found the Fiscal and Judges concerned to have

brought to the Court whatever disposition the fiscal may feel

gravely abused their discretion in not deferring the arraignment

should be proper in the case thereafter should be addressed for

pending disposition of the appeal to the Secretary of Justice.

the consideration of the court.

instruction of the Secretary of Justice who reviewed the records of the

investigation."

THE

PRINCIPLE

WAS

FURTHER

STRESSED

IN

The Court should have suspended the arraignment of this

The only qualification is that the action of the court must

information for homicide and await resolution on the petition for

not impair the substantial rights of the accused or the right of

review to DOJ on the ground that the crime is for murder.

the people to due process.

DIMATULAC V. VILLON
and

The Court has the final say on any subsequent disposition

information amended if DOJ finds that the proper information

or action, since the case is brought before it which will not be

should be murder.

disturbed by the appellate court unless it is shown that the trial

Otherwise,
In this case, the accused were charged with murder before
the Municipal Court which found a probable cause for murder

the

arraignment

may

be

set

aside,

court acted without jurisdiction or in excess of its jurisdiction or

and issued warrants for the arrest of the accused without bond,
after which the records were forwarded to the Provincial Fiscal.

Without the accused having been arrested, the Fiscal

conducted a reinvestigation and received the evidence of the
accused, found the case to be homicide.

MOTION FOR REINVESTIGATION TO BE ADDRESSED TO

COURT
In Velasquez v. Tuquero, it was held that a motion for
reinvestigation should, after the court had acquired jurisdiction

otherwise committed a grave abuse of discretion amounting to

such lack or excess of jurisdiction.
COMPLAINT CANNOT BE WITHDRAWN
WITHOUT COURT'S CONSENT

BY

FISCAL

over the case, be addressed to the trial judge and to him alone.
The complaint cannot be withdrawn by the Fiscal without

The offended party appealed to the Secretary of Justice.

Neither the Secretary of Justice, the State Prosecutor, nor

the court's consent.

the fiscal may interfere with the judge's disposition of the case,
much less impose upon the court their opinion regarding the

The provincial fiscals are not clothed with power, without

the information for homicide, and despite the objections of the

In the meantime, despite the appeal, the prosecutor filed

guilt or innocence of the accused, for the Court is the sole judge

the consent of the court, to dismiss or nolle prosequi criminal

offended party on the ground that they have appealed the

of that.

actions actually instituted and pending further proceedings.

25

of the fiscal, when the complaint or information has already been

The power to dismiss is vested solely in the court, i.e., the

filed in court."

and trial on the merits, should he enter a plea of not guilty.

presiding judge.
See however, Galvez v. Court of Appeals, upholding the
right of the prosecution to withdraw the information for
homicide, the evident purpose was to refile a case of murder
against the same accused before arraignment even without
notice and hearing.
Fiscal Entitled to be Heard on Motion to Dismiss
However, while the trial court is the sole judge on whether
a criminal case should be dismissed (after the complaint or
information has been filed in court) still, any move on the part of
the complainant or offended party to dismiss the criminal case,
even if without objection of the accused should first be referred
to the prosecuting fiscal for his own view on the matter.

The only option of the judge was to proceed with the

arraignment of the accused and, thereafter, conduct a pre-trial

Moreover, where the DOJ had already given due course to

the petitioner's petition for review, it was premature for
respondent judge to deny the motions to suspend proceedings

It does not, however, necessarily follow that the court

should merely adopt the recommendation of the Prosecutor.

and to defer arraignment on the ground that "since the case is

already pending for trial, to follow whatever opinion the
Secretary of Justice may have on the matter would undermine
the independence and integrity of this court.

Thus,

where

reinvestigation

and

the

judge

directed

granted

the

Office

the
of

motion

the

for

Provincial

In Montesa, the stand of the prosecution is to maintain the

information, in which case there is nothing more for the court to
do but to proceed with the case.

The situation is different if the motion of the fiscal is for

the dismissal or withdrawal of the information.

Prosecutor to conduct the reinvestigation, the former was

deemed to have deferred to the authority of the prosecution arm
of the Government to consider the so-called new relevant and

ULTIMATE TEST OF TRIAL COURT'S INDEPENDENCE IS

WHERE FISCAL FILES A MOTION TO DISMISS

material evidence and determine whether the information it had

The Supreme Court stressed that the real and ultimate test

filed should stand.

of the independence and integrity of the trial court is not the

He is, after all, in control of the prosecution of the case
and he may have his own reasons why the case should not be
dismissed.

Having done so, it behooved the judge to wait for a final

resolution of the incident.

filing

of

the

motions

to

suspend

proceedings

and

defer

arraignment at that stage of the proceedings but the filing of a

motion to dismiss or to withdraw the information on the basis of
a resolution of the petition for review reversing the Joint

It is only after hearing the prosecuting fiscal's view that

VALID BASIS OF JUDGE'S FINAL ACTION WHERE FISCAL

STANDS ON INFORMATION

Resolution of the investigating prosecutor.

the Court should exercise its exclusive authority to continue or

dismiss the case.

The findings and conclusion of the Provincial Prosecutor,

being the final disposition on the reinvestigation, should be the

The Parameters of the Court's Control

sole and only valid basis of the judge's final action (not that of
the Assistant Provincial Prosecutor).

The Supreme Court, clarified in Marcelo v. Court of

Appeals, that there is nothing in Crespo v. Mogul, which bars the
DOJ from taking cognizance of an appeal, by way of petition for
review, by an accused in a criminal case from an unfavorable
ruling of the investigating prosecutor.

Where the Provincial Prosecutor to which the judge had

deferred the matter for reinvestigation, had finally resolved to
stand on the information and to present evidence to prove the
guilt of the accused for the crime charged, the judge did not
have the option to dismiss the case on the basis of the

It merely advised the DOJ to, "as far as practicable, refrain

disapproved resolution of the Assistant Provincial Prosecutor.

from entertaining a petition for review or appeal from the action

Before that time, the pronouncement in Crespo u. Mogul,

that "once a complaint or information is filed in Court, any
disposition of the case as its dismissal or the conviction of the
accused or acquittal of the accused rests in the sound discretion
of the court," did not yet become relevant or applicable.

However, once a motion to dismiss or withdraw the

information is filed, the trial judge may grant or deny it, not out
of subservience to the Secretary of Justice, but in faithful
exercise of judicial prerogative.
The trial judge must himself be convinced that there was
indeed no sufficient evidence against the accused, and this con-

26

clusion can be arrived at only after an assessment of the

therefore, in criminal prosecution is not that it shall win a case,

evidence in the possession of the prosecution.

but that justice shall be done.

What is imperatively required is the trial judge's own

As such, he is in a peculiar and very definite sense, the

assessment of such evidence, it not being sufficient for the valid

servant of the law, the two-fold aim of which is that guilt shall

and proper exercise of judicial discretion merely to accept or

not escape or innocence suffers.

reject the prosecution's word for its supposed insufficiency or to

I.

Control by Prosecution

1.

What case to file;

2.

Whom to prosecute;

3.

Manner of prosecution; and

4.

Right
before

simply rely on Crespo v. Mogul.

Accordingly, if the fiscal is not at all convinced that a prima

Prosecution

arraignment

to

Withdraw

even

without

information
notice

and

hearing. There must be leave of court after prior

facie case exists, he simply cannot move for the dismissal of the
In the absence of a finding of grave abuse of discretion,

of

notice and hearing.

case and, when denied, refuse to prosecute the same.

the court's bare denial of a motion to withdraw information

II. Control by Court Once Case is Filed

pursuant tc the Secretary's resolution is void.

He is obliged by law to proceed and prosecute the criminal

action.

FISCAL MAY BE COMPELLED TO PROSECUTE CASES ALREADY

FILED

He cannot impose his opinion on the trial court.

Notwithstanding his personal convictions or opinions, the

fiscal must proceed with his duty of presenting evidence to the

At least what he can do is to continue appearing for the

court to enable the court to arrive at its own independent

prosecution and then turn over the presentation of evidence to

judgment as to the culpability of the accused.

1.

Suspension of Arraignment;

2.

Reinvestigation;

3.

Prosecution by Fiscal;

4.

Dismissal; and

5.

Downgrading offense or dropping of accused even

before plea.

another fiscal or a private prosecutor subject to his direction and

The fiscal should not shirk from his responsibility much

control.

less leave the prosecution of the case at the hands of a private

prosecutor.

Where there is no other prosecutor available, he should

III. Limitations on Control by Court

proceed to discharge his duty and present the evidence to the

best of his ability and let the court decide the merits of the case

At all times, the criminal action shall be prosecuted under

1.

Prosecution entitled to notice of hearing;

2.

Court must await result of petition for review;

3.

Prosecution's stand to maintain prosecution should

on the basis of the evidence adduced by both parties.

his direction and control.

The supervision and control of the prosecutor extends to

Otherwise, the entire proceedings will be null and void.

the civil liability instituted with the criminal action if it was not
filed separately, reserved or there is no private prosecutor who

In the trial of criminal cases, it is the duty of the public

be respected by court;

intervened.

prosecutor to appear for the government "since an offense is an

outrage to the sovereignty of the State."
This

is

so

because

"the

prosecuting

DEVELOPMENTS FROM CRESPO TO DIMATULAC:

officer

is

4.

fiscal files motion to dismiss or to withdraw

the

representative not of an ordinary party to a controversy but of a

sovereignty where the obligation to govern impartially is as

Ultimate test of court's independence is where

information;

a.

Distinction between control of prosecution and control of

court
5.

compelling as its obligation to govern at all; and whose interest,

27

Court has authority to review (power of Judicial

Review)

8353, the Anti-Rape Law of 1997 which took effect on October

of, and in spite of the complainant, his death notwithstanding.

22, 1997, reclassifying rape as a crime against person and is

Secretary's recommendation and reject it if

now a "public crime."

Purpose of Rule

there is grave abuse of discretion.

Concept of Private Crimes
*See,

however,

Sec.

ll(c),

Rule

116,

Suspension of arraignment does not exceed sixty

(60) days.

The term "private crimes" in reference to felonies which

accused, but is a condition precedent to the exercise by the

proper authorities of the power to prosecute the guilty parties.

Such condition has been imposed out of consideration for

The Resolution of the Secretary of Justice

may be appealed to the Office of the President in
punishable

by

death

or

reclusion

perpetua.

6.

Code) was not enacted for the specific purpose of benefitting the

cannot be prosecuted except upon complaint filed by the

aggrieved party, is misleading.

offenses

The complaint required (in Article 344 of the Revised Penal

To reject or grant motion to dismiss court must

make own independent assessment of evidence.

Far from what it implies, it is not only the aggrieved party

who is offended in such crimes but also the State.

Every violation of penal laws results in the disturbance of

the offended women and her family who might prefer to suffer
the outrage in silence rather than go through with the scandal of
a public trial.

Thus, while the complaint filed by a mental retardate may

public order and safety which the State is committed to uphold

have been technically defective in the sense that complainant

and protect.

was incompetent, this defect has been cured when complainant's

brother

7.

Judgment is void if there is no independent

assessment

and

finding

of

grave

abuse

of

discretion.

If the law imposes the condition that private crimes like

The rule on crimes that must be prosecuted upon

complaint filed by the offended party may be classified into three

Alcala

took

the

witness

stand

for

the

adultery shall not be prosecuted except upon complaint filed by

the offended party, it is, "out of consideration for the aggrieved

CRIMES PROSECUTED UPON COMPLAINT OF OFFENDED

PARTY

Pernando

prosecution.

The

brother's

testimony

shows

that

consent

and

party who might prefer to suffer the outrage in silence rather

willingness of the family of the complainant, who can not give

than go through the scandal of a public trial."

her consent obviously, to have the private offense committed

against the latter publicly tried.

Once a complaint is filed, the will of the offended party is

ascertained and the action proceeds just as in any other crime.

Substantially, this is what is required by the rules.

categories:

a.

In crimes of adultery and concubinage;

b.

In offenses of seduction, abduction, or acts of lascivious-

This is shown by the fact that after filing a complaint, any

Evidently, by undergoing trial, the family of complainant

pardon given by the complainant to the offender would be

chose to denounce the injustice committed against the latter in

unavailing.

public and thus agreed to bear the personal effects of said

exposure.

ness;
c.

Criminal

actions

for defamation

which

consist

in

the

imputation of an offense mentioned above.

It is true, the institution of the action in so-called private

crimes is at the option of the aggrieved party.

Undoubtedly, therefore, the trial court had jurisdiction to

try the case.

Rape was excluded as a private crime in view of R.A. No.

But it is equally true that once the choice is made

manifest, the law will be applied in full force beyond the control

28

Compliance with Rule Is Jurisdictional

factors pertinent to the punishment of the culprit.

While the complaint required in said Art. 344 is merely a

condition precedent to the exercise by the proper authorities of
the power to prosecute the guilty parties, and such condition has
been imposed out of consideration for the offended woman and

CAPACITY AND LEGAL REPRESENTATION AT THE TIME OF

FILING OF ACTION FOR ADULTERY

When it is said that the requirement in Article 344 that

there should be a complaint of the offended party or his relative
is Jurisdictional, what is meant is that it is the complaint that
starts the prosecutory proceeding.

her family who might prefer to suffer the outrage in silence

rather than go through with the scandal of a public trial.

It is not the complaint which confers jurisdiction in the

Compliance with Rule 110, Section 5, is Jurisdictional and

court to try the case.

not merely a formal requirement.

Under Article 344 of the Revised Penal Code, the crime of

adultery, as well as four other crimes against chastity, cannot be
prosecuted except upon a sworn written complaint filed by the

IN PROSECUTIONS FOR ADULTERY AND CONCUBINAGE,

THE PERSON WHO CAN LEGALLY FILE THE COMPLAINT
SHOULD BE THE OFFENDED SPOUSE, AND NOBODY ELSE

legal capacity to sue, as a ground for a motion to dismiss in civil cases, is

determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of

criminal cases does not mean that the same requirement and rationale

offended spouse.
Unlike the offenses of seduction, abduction, rape and acts
It has since long been established, with unwavering
consistency, that compliance with this rule is a Jurisdictional, and
not merely a formal requirement.
While in point of strict law, the jurisdiction of the court
over the offense is vested in it by the Judiciary Law, the
for

Corollary to such exclusive grant of power to the offended

spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation to
do so at the time of the filing of the criminal action.
This is a familiar and express rule in civil actions; in fact, lack of

The Court's jurisdiction is vested in it by the Judiciary Law.

requirement

Where the complainant had already been divorced, he can

no longer file the complaint. Said the Supreme Court:

sworn

written

complaint

is

just

as

Jurisdictional a mandate since it is that complaint which starts

of lasciviousness, no provision is made for the prosecution of the

crimes

of

adultery

and

concubinage

by

the

parents,

grandparents or guardian of the offended party.

Understandably, it may not have been found necessary since

criminal actions are generally and fundamentally commenced by the
State, through the People of the Philippines, the offended party, being
merely the complaining witness therein.

The

so-called

exclusive

and

successive

rule

in

the

prosecution of the first four offenses above mentioned do not

apply to adultery and concubinage.

However, in the so-called "private crimes," or those which cannot

be prosecuted de oficio, and the present prosecution for adultery is of
such genre, the offended spouse assumes a more predominant role since

the prosecutory proceeding and without which the Court cannot

exercise its jurisdiction to try the case.

would not apply.

It is significant that while the State, as parens patriae, was

the right to commence the action, or to refrain therefrom, is a matter

exclusively within his power and option.

added and vested by the 1985 Rules on Criminal Procedure with

MEANING OF TERM "JURISDICTIONAL"

It was explained in People v. Tanada (supra), that this

provision does not determine, however, the jurisdiction of our

the power to initiate the criminal action for a deceased or

capacity of the complainant to commence the action be definitely es-

abduction, [rape] and acts of lasciviousness, in default of her

tablished and, as already demonstrated, such status or capacity must

parents, grandparents or guardian, such amendment did not

indubitably exist at the time he initiates the action.

include the crimes of adultery and concubinage.

courts over the offenses therein enumerated.

It would be absurd if his capacity to bring the action would be

In other words, only the offended spouse, and no other, is

It could not affect said jurisdiction, because the same is

authorized by law to initiate the action therefor.

governed by the Judiciary Act of 1948, not by the Revised Penal

Code, which deals primarily with the definition of crimes and the

In these cases, therefore, it is indispensable that the status and

incapacitated victim in the aforesaid offenses of seduction,

determined by his status before or subsequent to the commencement

thereof, where such capacity or status existed prior to but ceased before,
or was acquired subsequent to but did not exist at the time of, the
institution of the case. We would thereby have the anomalous spectacle of

OFFENDED PARTY IN ADULTERY MUST HAVE THE STATUS,

29

a party bringing suit at the very time when he is without the legal

bring his wife and the alleged paramour to justice being too

capacity to do

evident.

writing in the form of searching questions and answers. On the

basis of that examination, a warrant of arrest was issued.

Exclusive Right of Offended Party When of Age

If the offended party is of age, the right to file the

FILING OF
SUFFICIENT

VERIFIED

STATEMENT

BEFORE

COURT

In his appeal, Bulaong contends through his counsel de officio that

the lower court did not acquire jurisdiction over the case because the
information filed by the city fiscal is fatally defective for not containing the

complaint is exclusive and successive. None of these persons

verification required in Form 24 of the Appendix to the Rules of Court.

has authority to proceed if there is any other person previously

In a case where the Fiscal filed an Information charging

mentioned therein with legal capacity to appear and institute an

the accused with 'telling some people in the neighborhood that

action.

said Fausta Bravo (a married woman) was a paramour of one

The contention has no merit.

Sangalang, a man not her husband,' and Fausta Bravo did not
Where, however, the victim who was also of age is
incapacitated by reason of insanity or physical incapacity, the

subscribe to the complaint, the Supreme Court held that the trial
court had no jurisdiction over the case.

The forms prescribed in the Rules of Court "serve as mere

illustrations."

complaint filed by the father is valid.

Jurisdiction over the crime charged in this case is conferred by law,

OVERRIDING CONSIDERATION IN DETERMINATION OF

COMPLIANCE WITH RULE
The overriding consideration in determining the issue of

It ruled that since the accused imputed to Fausta Bravo

not by the complaint or information which is merely the means by which

the commission of adultery, a crime which cannot be prosecuted

jurisdiction is invoked or which gives the court the occasion for exercising

de officio, the Information filed by the Fiscal cannot confer

its jurisdiction.

jurisdiction upon the court of origin.

whether or not the condition prescribed in Article 344 of the

Revised Penal Code has been complied with is the interest of the
aggrieved

party

to

seek

judicial

redress

for

the

affront

committed.

It must be noted, however, that this error could be

corrected without sustaining the motion to quash and dismissing
the case. Pursuant to Section 1 of paragraph (a) of P.D. No. 77,
under which the Assistant City Fiscal conducted the preliminary

DEATH OF COMPLAINANT DURING PENDENCY OF CASE

DOES NOT EXTINGUISH CRIMINAL LIABILITY

investigation, the statement of the complainant was sworn to

before the aforesaid Investigating Fiscal. Assuming that the
recitals in said sworn statement contain all those required of a

The death of the complainant during the pendency of the

case is not a ground for extinguishment of criminal liability
whether total or partial.

INITIATION OF COMPLAINT
SUFFICIENT COMPLIANCE

IN

FISCAL'S

OFFICE

IS

A "Salaysay" or sworn statement of the offended party,

which

prompted

the

Fiscal

to

con-duct

preliminary

investigation and then to file an information in court, is not the

complaint contemplated/required by Article 344 of the Revised
Penal Code.

complaint under the rules, a copy of said verified statement of

the complainant under the rules should be filed with respondent

The Rule was modified in Valdepenas u. People, which held

court in order to comply with the requirements of Article 360 of

that the complaint filed by the offended woman and her mother

the Revised Penal Code; otherwise, the respondent Fiscal should

before the Justice of the Peace Court and forwarded to the CFI of

file with said court, a verified complaint of the offended party.

Cagayan, in which the corresponding information for forcible

abduction with rape was filed and was considered as sufficient

DEATH OF COMPLAINANT BEFORE FILING OF CASE IN

COURT
The fact that before a criminal information for adultery
could be filed, the offended party who had already filed a sworn
complaint with the fiscal died, is not sufficient justification for
dismissal of the information, the desire of the offended party to

COMPLAINT FILED BY OFFENDED PARTY IN INFERIOR

COURT SUFFICIENT; OFFENDED PARTY NEED NOT
SUBSCRIBE INFORMATION

compliance with the law.

In this case, the complaint for abduction with rape 'against

Bulaong was filed in the city court by the offended girl and her
father. That complaint was sworn to before the city judge. It was
the basis of the preliminary examination. The judge examined
the witnesses under oath. The examination was reduced to

the information filed by the Fiscal.

30

It is not necessary for the complainant to sign and verify

The complaint adopted by the Fiscal and attached to and

made part of the corresponding information filed after investi-

gation is sufficient.

The right and power of the court to try the accused for

Since the filing of a complaint for any of the offenses

the crime of rape attaches upon the filing of the complaint,

enumerated in Article 344 of the Revised Penal Code, by the

In People v. Sunpongco, the failure of the prosecution to

person or persons mentioned therein is jurisdictional, the filing

formally offer in evidence the sworn complaint of the offended

thereof is sufficient to initiate a valid prosecution, and no

party or the failure to adhere to the rules is not fatal and does

information need be Sled any longer by the Fiscal.

and a change in the allegations thereof as the manner of

committing the crime should not operate to divest the court
of the jurisdiction it has already acquired.

not oust the court of its jurisdiction to hear and decide the case.

If the complaint is forwarded to the Court as part of the

EFFECT OF VARIANCE BETWEEN

INFORMATION AND THE EVIDENCE

The right is exclusively and successively reposed in the

offended party, her parents or guardian in the order in which

distinguished from the right of the accused to demand an

A distinction should be made where there is a variance in

offense charged in the information even if he be found guilty

the allegations in the complaint of the manner the crime was

of another offense; in the latter case, however, even if the

committed and the allegations in the information; and a variance

court has no right to find the accused guilty because the

between the allegations in the information and the evidence

crime alleged is different from that proved, it cannot be

adduced by the prosecution.

stated that the court has no jurisdiction over the case.

take judicial notice of the same without the necessity of its

Seduction, Abduction, Act of Lasciviousness

The right or power to try the case should be

AND

acquittal unless it is shown that he has committed the

record of the preliminary investigation of the case, the court can

formal introduction as evidence of the prosecution.

COMPLAINT

a.

they are named.

This is out of consideration for the aggrieved party who

Where the complaint filed was for forcible abduction, while

the information filed by the Fiscal was for rape inasmuch as
the crime if rape is different from the crime of forcible
abduction alleged in the complaint, said complaint could not
serve as a basis for the court to acquire jurisdiction over the
crime actually committed.

c.

accused with abduction with rape detailed in her sworn

statement which form part of the records of the preliminary
investigation, even if the body of the complaint does not
specify the elements of forcible abduction, if the information

might prefer to suffer the outrage in silence rather than go

through the scandal of a public trial.

Where the complaint signed by the complainant charged the

sufficiently charged the complex crime forcible abduction

b.

Where, however, the complaint was for rape, a change in

with rape, the court validly acquired jurisdiction.

the manner of committing the crime of rape from that as

NO NEED TO FILE INFORMATION; FILING OF COMPLAINT
IS SUFFICIENT
In a case involving crimes against chastity, the prosecution
may be conducted by the fiscal on the basis of the complaint
filed in the inferior court. There is no need to file an information.
Hence, the other contention of the accused that the

alleged in the complaint does not divest the court of its

jurisdiction.

d.

rape by force and intimidation, he cannot be convicted of

rape on the ground that the victim was raped while she was

The power of jurisdiction of the court is not over the

unconscious or otherwise deprived of reason as it would

crime of rape when committed on a minor and demented

violate his right to be informed of the nature and cause of

girl, but over rape, irrespective of the manner in which the

the accusation against him, except when there is a failure to

same may have been committed.

object thereto during the trial in which case the accused

may be convicted of the rape proved even if committed in a

information should have been signed by the offended girl is

wrong.

Where the information, however, charged the accused of

manner different from that alleged in the information.

The court, therefore, erred in holding that it had no

jurisdiction to try the crime charged in the information

Article 344 of the Revised Penal Code, reproduced in

Section 4, Rule 110 of the Rules of Court, does not require that
the offended girl in a crime against chastity should sign the

simply

because

it

charges

the

accused

with

Other Cases

having

committed the crime on a demented girl, instead of through

the use offeree and intimidation.

information filed by the fiscal.

31

a.

The father has no preferential right over the mother to file

the complaint.

b.

A complaint must be filed by the legal guardian. An oath

The death of offended party in a criminal case for libel or

that he is the guardian was held as sufficient.

The error may, however, be corrected without sustaining

defamation does not extinguish criminal liability of accused.

the motion to quash and dismiss the case.

c.

Where the complaint is for attempted rape, the city court

has jurisdiction to try the case for acts of lasciviousness, the

Where the statement of the complaint was sworn to before

crime allegedly committed as per inquest fiscal's findings,

the investigating fiscal; and the recitals in the sworn statement

though the complainant did not sign a complaint for acts of

contain all those required of a complaint under the rules, a copy

lasciviousness,

of the verified statement of the offended party may be filed in

attempted

rape

includes

acts

of

lasciviousness.

While

the

court
Fiscal

should

have

prepared

another

Thus, where the information was based on the criminal

complaint for acts of lasciviousness, this is not jurisdictional

complaint filed with the fiscal's office which conducted the

the complaint started the criminal action because a

corresponding

private crime can not be prosecuted de officio.

conformably with the procedure then in force was transmitted to

Where the accused is charged with rape committed thru

Time of the offense under the former rule was changed to

preliminary

investigation

and

the

records

All Elements of Crime Must be Alleged

It is fundamental that every element of which the offense
is composed must be alleged in the complaint or information.

its jurisdiction.

force and intimidation, he cannot be convicted of rape

What facts and circumstances are necessary to be stated

committed under paragraph 2 of Article 335 when the

must be determined by reference to the definitions and the

woman is deprived of reason or is otherwise unconscious.

e.

Sufficiency of complaint or information

DATE of the offense.

the trial court, such circumstance does not deprive the court of
d.

SEC. 6.

In robbery with rape or rape with homicide, the complaint of

offended party is not essential.
Defamation

Imputing prostitution, does not indicate an adulterous act

and can be prosecuted de officio.
Where, however, in addition to allegedly calling the
complainant a whore, the private respondent is also charged in
one

information

with

having

described

the

former

as

"paramour of my husband," this is a clear imputation of adultery.

essentials of the specific crimes.

The main purpose of requiring the various elements of a

crime to be set out in an information is to enable the accused to
suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the ofiense.

A paramour is "one who loves or is loved illicitly."

A published letter stating that a woman employee had

Matter of Evidence; Need Not be Averred

"illicit relationship with another who is the former's paramour"

One taking the place without legal rights of a husband or

imputes adulterous relationship between the two.

order to render the information sufficiently certain to identify the

A prosecution for libel based thereon cannot be made

without the sworn complaint of the offended party.
Since the accused imputed the commission of adultery, a
crime which cannot be prosecuted de officio, the Information
filed by the Fiscal cannot confer jurisdiction upon the Court of

However, it is often difficult to say what is a matter of

evidence, as distinguished from facts necessary to be stated in

wife.

A mistress, also called a lover, accordingly, that imputation

offense.

is covered by Rule 110.

As a general rule, matters of evidence, as distinguished
DEATH OF OFFENDED PARTY IN CASES OF LIBEL OR
DEFAMATION

origin.

32

from facts essential to the description of the offense, need not

be averred.

For instance, it is not necessary to show on the face of an

information for forgery in what manner a person is to be

ammunitions outside of his residence. The contention is without

merit.

What is important is that the information states that the

defrauded, as that is a matter of evidence at the trial.

accused is being charged of an offense under R.A. No. 7610

As the court

Reasonable Certainty is Sufficient

had stated in People v.

Austria, the

presentation of evidence "cannot have the effect of validating a

based on the complaint of the offended party, to which the

accused had adequately responded.

void information, or proving an offense which does not legally

Moreover, reasonable certainty in the statement of the

exist.

Under these conditions, the accused was fully apprised of

crime suffices.

the accusation against him.

The information was not merely defective but it does not

All that is required is that the charge be set forth with such

charge any offense at all.

The purpose and objective of the constitutional mandate

particularity as will reasonably indicate the exact offense which

the accused is alleged to have committed and will enable him
intelligently to prepare his defense, and if found guilty to plead
her conviction, in a subsequent prosecution for the same

are discharged and satisfied.

Technically speaking, that information does not exist in
contemplation of law."

The accused may not be said to be taken by surprise by

the failure of the information to state the age of the offended

offense.
In an information for rape (committed before R.A. No.
7659) without alleging the age or complainant, the accused was

Effects of Fatally Defective Information

or minority.

Thus, even if the information did not allege that the victim
was a mental retardate which is an essential element of the

for want of certain essential allegation is not necessarily void

when no objection appears to have been raised at the trial and
the fatal defect could have been supplied by competent proof.

It was, however, held in Ilo, et al. v. Court of Appeals, that

The information was not void but merely defective which is

curable by evidence admitted without objection.

evidence, for that would jeopardize their right to be informed of,

The Substantial Compliance Rule

It has been held that a complaint is under the Rules one of
the two charging instruments for the offense of which the

the true nature of the offense they are charged.

accused was tried and convicted here.

holding that an information which does not charge an offense at

While the criminal action was instituted by the complaint of

all cannot be validated by the presentation of evidence. Said the

the offended party, the information signed only by the fiscal

Supreme Court: "(t)he petitioner contends that under the

ushered in the formal trial process.

allegation in the information that the accused without authority

have in his possession and under his custody and control the
firearms and ammunitions enumerated therein," the prosecution
that

the

accused

carried

the

firearms

and

or the age of the complainant or the information merely states

R.A. No. 7610" without citing the specific sections alleged to
have been violated the Court treated the informations as merely
defective and that the deficiency was cured either because the
complaint supplied the omission or by the failure of the accused
to assail the insufficiency of the allegations in the Information
and by competent evidence presented during trial, and the
accused cannot successfully invoke the defense that his right to

The Supreme Court applied the case of People u. Austria,

of law, did then and there willfully, unlawfully and feloniously

crime of statutory rape, or the element of force and intimidation

that petitioner was being charged for the crime of "violation of

a substantial defect in the information cannot be cured by

prove

was told how old the offended party was.

convicted of statutory rape there being no objection to evidence

Conviction or acquittal under a fatally defective information

may

party, when he had received the initiatory complaint where he

be informed is violated.

The Court did not consider the omissions sufficient to

invalidate the information, holding that the character of the

But both are accusations in writing against the accused

crime is not determined by the caption or preamble of the

and serve the purpose of enabling him to take the necessary

information nor from the specification of the provision of law

legal steps for his defense.

alleged to have been violated, as they may be conclusions of

33

law, but by the recital of the ultimate facts and circumstances in

crime in either of the following manner:

aptly appear in the information in the form of definitive acts

the complaint or information.

The sufficiency of an information is not negated by an

incomplete or defective designation of the crime in the caption or
other parts of the information but by the narration of facts and
circumstances which adequately depicts a crime and sufficiently
apprise the accused of the nature and cause of.the accusation
against him.

constituting conspiracy.
(1)
by the use of the word "conspire" or its
derivatives or synonyms, such as confederate, connive,
collude, etc. or

In fine, the agreement to commit the crime, the unity of

purpose or the community of design among the accused must be

(2)
by allegations of basic facts constituting the
conspiracy in a manner that a person of common
understanding would know what is intended, and with such
precision as would enable the accused to competently enter
a plea to a subsequent indictment based on the same facts

conveyed such as either by the use of the term "conspire" or its

When Charged as a Mode of Committing the Crime

information on which basis an accused can aptly enter his plea, a

derivatives and synonyms or by allegations of basic facts

constituting the conspiracy.

Conspiracy must be alleged, not just inferred, in the

The information may not refer to specific section/s of R.A.
No. 7610 alleged to have been violated by the petitioner, but it

matter that is not to be confused with or likened to the adequacy

is all to evident that the body of the information contains an

The requirements of the sufficiency of the information are

averment of the'acts alleged to have been performed by

different when conspiracy is not charged as a crime in itself but

petitioner which unmistakably refers to acts punishable under

only as a mode of committing the crime as in the case of Plunder

Section 5 of R.A. No. 7610.

consisting of several predicate crimes.

of evidence that may be required to prove it.

In establishing conspiracy when properly alleged, the

evidence to support it need not necessarily be shown by direct
proof but may be inferred from shown acts and conduct of the

As to which section of R.A. No. 7610 is being violated by

petitioner is inconsequential.

There is less necessity of reciting its particularities in the

offense charged.

An allegation of conspiracy, or one that would impute

What is determinative of the offense is the recital of the

ultimate facts and circumstances in the complaint or information.
Sufficiency of Allegations of Conspiracy

accused.

information because conspiracy is not the gravamen of the

criminal liability to an accused for the act of another or others, is

The conspiracy is significant only because it changes the

indispensable in order to hold such person, regardless of the

criminal liability of all the accused in the conpsiracy and make

nature and extent of his own participation, equally guilty with

them responsible as co-principals regardless of the degree of

the other or others in the commission of the crime.

their participation in the crime.

In our jurisdiction, * * * conspiracy can be alleged in the
Information as a mode of committing a crime or it may be
alleged as constitutive of the crime itself.

Where conspiracy exists and can rightly be appreciated,

The liability of the conspirators is collective and each
participant will be equally responsible for the acts of the others.

the individual acts done to perpetrate the felony becomes of

secondary importance, the act of one being imputable to all the
others.

When conspiracy is alleged as a crime in itself, the

The

information

must

state

that

the

accused

have

sufficiency of the allegations in the Information charging the

confederated to commit the crime or that there has been a

Verily, an accused must know from the information

offense is governed by Section 6, Rule 110 of the Revised Rules

community of design, a unity of purpose or an agreement to

whether he faces a criminal responsibility not only for his acts

of Criminal Procedure.

commit the felony among the accused.

but also for the acts of his co-accused as well.

Following the stream of our own jurisprudence, it is

Such an allegation, in the absence of the usual usage of

In the absence of conspiracy, so averred and proved an

enough to allege conspiracy as a mode in the commission of the

the words "conspired" or the phrase "acting in conspiracy," must

accused can only be made liable for the acts committed by him

34

alone and this criminal responsibility is individual and not

collective

35

information for conviction of accused who may therefore be

WHEN CONSPIRACY CHARGED AS A CRIME

When conspiracy is charged as a crime, the act of

conspiring and all the elements of said crime must be set forth in

This is essential to avoid surprise on the accused and

convicted of a crime more serious than that named in the

to afford him the opportunity to prepare his defense

title or preliminary part if such crime is covered by the facts

accordingly.

alleged in the body of the information and its commission is

established by the evidence.

the complaint or information.

To comply with these fundamental requirements of
the Constitution and the Rules on Criminal Procedure, it is

For example, the crime of "conspiracy to commit treason"

imperative for the specific statute violated to be designated

is committed when, in time of war, two or more persons come to

SEC. 7.

or mentioned in the charge.

an agreement to levy war against the Government or to adhere

Name of the accused

to the enemies and to give them aid or comfort, and decide to

commit it.

b.

The failure, however, to designate the offense by statute or

to mention the specific provision penalizing the act or an

The word "discovered" under the former rule was changed

to "ascertained."

erroneous speficication of the law violated does not vitiate

In embodying the essential elements of the crime charged,

the information if the facts alleged clearly recites the facts

the information must set forth the facts and circumstances that

constituting the crime charged.

have a bearing on the culpability and liability of the accused so

Error in the name or identity should be raised on

arraignment.

that the accused can properly prepare for and undertake his
defense.

c.

The title of information or designation of offense is not

Purpose of Rule

controlling.
One such fact or circumstance in a complaint against two

To enable the court to acquire jurisdiction over his person

or more accused persons is that of conspiracy.

It is the actual facts recited in the information that

and to inform him of the facts.

determines the nature of the crime.

Quite unlike the omission of an ordinary recital of fact

The real nature of offense is to be determined not by

Where the accused has been sued as John Doe in an

which, if not excepted from or objected to during trial, may be

its designation or title given by the Fiscal but the facts

information filed in due form, and after due investigation by the

alleged in the body of the Information.

Fiscal, his identity became known, his true name may be

corrected or supplied by competent proof

inserted without further need of preliminary investigation where

Need to Designate Statute Violated
a.

d.

It is the province of the Court alone to say what the crime is

or what it is named.

It is a constitutional right of any person who stands charged

in a criminal prosecution to be informed of the nature and
cause of the accusation against him.

charter of Quezon City and the nature of the crime is not

changed.

Even the justice of the peace, during the preliminary

investigation of a case, is without authority to determine the

Pursuant to the above, Section 6, Rule 110 of the

character of the crime committed. His declaration upon the

Rules of Court, expressly requires that for a complaint or

point is merely an opinion which in no wise binds the trial

information to be sufficient, it must, inter alia, state the

court.

Verbal motion to correct spelling is sufficient.

Where the accused Roberto Cultura was indicted in the

information as "Jose" Cultura (his father's name), but it was

designation of the offense by the statute, and the acts or

omissions complained of as constituting the offense.

one had already been properly conducted pursuant to the

clearly proven that he was part of the group that killed the
e.

Allegations prevail over designation of the offense in the

36

victim and did not raise the question of his identity at the

arraignment and acquiesced to be tried under that name, he is

deemed to have waived to raise the question of his identity for

R.A. No. 7659 (Death Penalty Law) Relationships which

a.

the first time on appeal.

SEC. 8.
Designation of the offense

SEC. 9.

When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the
victim.

alleged and proved to warrant imposition of death penalty.

When the victim is under the custody of the police or miliHence, penalty should only be reclusion perpetual

tary authorities.

c.

When the rape is committed in full view of the husband,

The twin circumstances of minority and relationship under

parent, any of the children or other relatives within the third

Article 335 of the Revised Penal Code, as amended by R.A. No.

degree of consangguinity.

7659, are in the nature of qualifying circumstances because they

alter the nature of the crime of rape and increase the penalty.

Amendment
d.
The former rule did not require qualifying and aggravating

When the victim is a religious or a child below seven (7)

As

years old.

circumstances to be alleged in the complaint or information.

special

qualifying

circumstances

they

must

be

specifically pleaded or alleged with certainty in the information;

e.

According to jurisprudence, aggravating circumstances

When the offender knows that he is afflicted with Acquired

otherwise, the death penalty cannot be imposed.

Immune Deficiency Syndrome (AIDS) disease.

proven by the evidence, although not alleged in the information,

The allegation that Irma is Nelson's niece is not specific

f.

When committed by any member of the Armed Forces of

the Philippines or the Philippine National Police or any law

Qualifying circumstances not alleged but proven are

enough

to

satisfy

the

special

qualifying

circumstance

of

relationship.

enforcement agency.

considered as aggravating.

If the offender is merely a relation not a parent,

g.

This is no longer true.

the nature of qualifying circumstances, must be specifically

Omission cannot be cured by evidence.

b.

Cause of the accusation

may be taken into account as such aggravating circumstances.

includes step-daughter and minority in incestuous rape are in

When by reason on the occasion of the rape, the victim has

suffered permanent physical mutilation.

ascendant, stepparent, guardian, or common law spouse of the

mother of the victim the specific relationship must be alleged
in the information, i.e., that he is "a relative by consanguinity or
affinity [as the case may be] within the third civil degree."

HISTORY OF AMENDMENT.

The concurrence of the minority of the victim and her

relationship of the offender is a special qualifying circumstance

Allegations to Warrant Death Penalty

which should both be alleged and proved with certainty in order

to warrant the imposition of the death penalty.

Pursuant to Section 11 of the amendatory statute (The

Death Penalty Law), the death penalty may be imposed in rape

In these eight (8) cases, complainant never said she was

cases under the last paragraph of Article 335 of the Revised

below 18 years of age when she was allegedly raped by her

Penal Code, when the rape is committed with any of the

father on any of the dates stated in the complaint.

following attendant circumstances:

The informations in these cases merely allege that Irma is

the "niece" of Nelson.

She could be a niece beyond the third civil degree either of

consanguinity or affinity.

Hence, the informations are fatally defective in this

respect.

37

The factor that characterizes the charge is the actual

In People u. Nunez, the Court stressed: Strict application of the

(plaintiff and defendant) and circumstances.

rule requiring the allegation of the qualifying circumstances mentioned in

Section 11 of R.A. No. 7659 was further enunciated in People v. Dimapilis.
While the Information there alleged that the victim was the stepdaughter

Every crime is made up of certain acts and intent these must be set
forth in the complaint with reasonable particularity of time, place, names

recital of facts.

The real nature of the criminal charge is determined not

of the accused, it was not accepted as a proper allegation of the qualifying

from the caption or preamble of the information nor from the

circumstance that the accused was the "common law spouse of the parent

specification of the provision of law alleged to have been violated

of the victim" and the death penalty imposed by the trial court was once

they being conclusions of law but by the actual recital of facts in

again reduced to reclusion perpetua.

the complaint or information.

In short, the complaint must contain a specific allegation of

every fact and circumstance necessary to constitute the crime
charged."
It is essential therefore, that the accused be informed of
the facts that are imputed to them as "as he is presumed to

Taking into account the growing number of cases where qualified

rape under Section 11 of R.A. No. 7659, although proven during trial,
could still not be properly penalized because of defects in the Information,

The purpose of the rule is to fully apprise the accused of

the true charge against him.

have no independent knowledge of the facts that constitute the

offense."
It imperative that the Information filed with the trial court

We urge the prosecuting fiscals who are charged with the

The rule broadens the concept and scope of the right of

responsibility of preparing Informations to state with particularity the

the accused to be informed of the nature and cause of the

attendant circumstances provided for under Section 11 of R.A. No. 7659.

accusation against him.

be complete to the end that the accused may suitably prepare

his defense.

Corollary to this, an indictment must fully state the

More specifically, in qualified rape, both the fact of minority of the
victim and the actual relationship between the parties, as worded in R.A.
No. 7659, must be alleged in the Information.

Otherwise, We shall continue to fail both the law and the victims

The life and liberty of the accused should not be left to the

elements of the specific offense alleged to have been committed

ability or inability of his counsel to promptly object against the

as it is the recital of the essentials of a crime which delineates

admissibility of what the law or rule requires to be specifically

the nature and cause of accusation against the accused.

alleged.
The Court in People u. Mendez, cited the 1935 case of

whom the law have sought to protect.

This was explained in U.S. v. Karelsen:

accused had carnal intercourse with the offended woman

Hence, the formulation of the foregoing rules that mandate not

only the qualifying but also the aggravating circumstances to be specified
in the information

People v. Oso, that the allegation of the complaint that the

"The object of this written accusations was,

"against her will" or "without her consent" is insufficient to

warrant a conviction for rape, although the evidence proves the
commission of the crime and reiterated the importance of duly

The Rule now requires aggravating circumstances must not only be

proven but it must also be alleged, otherwise, it should not be considered.

First: To furnish the accused with such a description of the charge

against him as will enable him to make his defense; and

informing the accused of the accusation against him as a

constitutional right that cannot be taken lightly, more so, if the
penalty to be imposed is grave, such as the forfeiture of his life.

Retroactive Application of Rule

Second, to avail himself of his conviction or acquittal for protection

against a further prosecution for the same cause, and

informed of the nature and cause of the accusation against him

The rule being remedial and favorable to the accused may

be applied retroactively to pending cases.

Third to inform the court of the facts alleged so that it may decide
whether they are sufficient in law to support a conviction if one should be
had in order that this requirement may be satisfied, facts must be stated,

Purpose of Rule

The essence of the constitutional right of the accused to be

not conclusions of law.

is that "every element of the offense must be alleged in the

complaint or information" so as to "enable the accused to
suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense."

38

qualifying circumstances of relationship and minority is omitted

between the victim and the accused because as phrased, they unduly lay

In setting out the elements of a crime in the information or

or lacking, that which is pleaded in the information and proved

stress on the generic aggravating circumstance of "taking advantage of

complaint, the pertinent provisions of the Rules on Criminal

by the evidence, like the complainant's minority, may be

Procedure, specifically, Section 9 of Rule 110, provides the

considered as an aggravating.
The Court further explained that:

following guideline the cited provision is one of the many

provisions in the Rules of Court that serves to implement the

Exact Relationship to be Alleged

"Be it in terms of syntax or composition, the wording of the

constitutional right of the accused to be informed of the charges

against him.

For rape to be qualified as heinous, warranting the

imposition of the death penalty, the circumstances of the

Relevant to this case is the phrase "a person of common

understanding," which has its origin in this jurisdiction in the

is not even an element of the attendant circumstances treated under

number 1 of the last paragraph of Article 335.

The test is whether the crime is described in intelligible

terms with such particularity as to apprise the accused, with

information alleged the accused, who is the stepfather of

complainant, succeeded in having carnal knowledge of the latter
who was then below eighteen years of age, but the evidence
because he and complainant's mother were not really married
but only lived in common-law relationship or where the charge is

Without allegation of relationship in cases of statutory

shows that she is a mere stepdaughter or whether the

rape, proof alone of relationship unless specifically alleged in the

relationship is by affinity or consanguinity in the third degree the

information would not warrant imposition of the death penalty.

death penalty cannot be imposed because the relationship

alleged in the information is different from that actually proven

Under existing jurisprudence, in the absence of proof of

perpetua and not death.
Where there are two indivisible penalties if there is no

"[A]nd taking advantage of his superior strength over the person of

his own daughter who is only thirteen years old.. ."

proved by her birth certificate.

In those cases, when either one of the twin special

daughter was less than 18 years of age at the time the crime of rape was
committed."

Specific Allegation of Relationship and Minority

Even if the information alleged that the victim is the
natural daughter of the accused, where there is a difference in
their surname, the mere testimony of the victim that the
accused is his father is not sufficient to establish the qualifying
circumstance of relationship, even if such relationship was not

Granting that the relationship within the third civil degree

either of consanguinity or affinity was duly proved during the
trial, still such proof cannot be appreciated to justify the

[T]aking advantage of his superior strength over the person of his

the victim's minority, which was pleaded in the informations and

circumstances of relationship of father and daughter and that the

denied by the accused.

Where the informations alleged:

aggravating circumstance the lesser penalty should be imposed.

The court may appreciate as an aggravating circumstance

The afore-quoted clauses in the informations can thus not be read

nor understood as constituting a specific allegation of the special

shows that the accused is not the complainant's stepfather

that the victim is the daughter of the accused when the evidence

aggravating circumstance, the penalty should be reclusion

the crime he had been charged with, especially considering that the
generic aggravating circumstance of taking advantage of superior strength

Although a husband is subject to punishment by death in

suitably prepare his defense.

common understanding or ordinary intelligence, of the gravity or nature of

must be both alleged in the information for rape.

case he commits rape against his wife's daughter, where the

The raison d'etre of the rule is to enable the accused to

informations is unable to sufficiently notify the accused, a person of

minority of the victim and her relationship with the offender

phrase "a person of ordinary intelligence.""

reasonable certainty, of the offense charged.

superior strength."

thirteen (13) year old (sic) daughter. . ."

imposition of the death penalty because he would thereby be

denied of his constitutional and statutory right to be informed of
the nature and cause of the accusation against him.

the Court spared the life of the accused, despite the mention of the
age of the victim and the word "daughter" in said informations, on the

Accused cannot be charged with committing the crime of

ground that the quoted informations failed to duly allege the special

rape in its simple form and then be tried and convicted of rape in

qualifying circumstances of the victim's minority and the relationship

39

its qualified form.

exemplary damages within the context of Article 2230 of the

Exact Age of Victim must be Alleged

Rule on Exemplary Damages

New Civil Code, even if the information or criminal complaint has

not alleged said circumstances as required by the rule.

The allegation in the information that complainant is the

"minor daughter" of accused-appellant is insufficient.

In line with the ruling in People v. Catubig, the qualifying

circumstances of minority and relationship, though not specified
in the complaint, can serve as basis for awarding exemplary

As held in People v. Puertollano, the information must

damages.

state the exact age of the victim at the time of the commission
of the crime.
To warrant the imposition of the death penalty, the
qualifying circumstance of the rape victim being below seven
years of age should be aptly alleged in the information.

Otherwise, the death penalty imposed by the trial court

should be reduced to reclusion perpetua as provided for in the
second paragraph of Art. 335 of the Revised Penal Code, as
amended.

COMPARE:

It has, however, been held that where the information

state that the offense was committed with the aggravating
circumstances of insult or in disregard of the respect due the
offended party on account of the fact the accused is the father of
the complainant, properly plead the special circumstance of
relationship of father and daughter that would enable a "person
of sufficient understanding" to know what offense is intended to
be charged.

Although the rape was committed in 1997, before the

ward were not alleged and proved.

THE MODIFYING CIRCUMSTANCES MUST BE ALLEGED NOT
ONLY IN PREAMBLE BUT IN ACCUSATORY PORTION

Revised Rules on Criminal Procedure took effect, the court held

that the retroactive application of the rules does not absolve
accused from civil liability

Thus,

the

use

of

The fact of filiation and minority must be alleged in the

accusatory portion of the information.

qualifying

The real nature of the criminal charge is determined not

circumstance or when the crime is committed by two or more

from the caption or the preamble of the information, nor from

persons, the penalty is reclusion perpetua to death if the

the specification of the provision of law alleged to have been

commission of the crime was attended by an aggravating

violated x x x, but from the actual recital of the facts as alleged

circumstance.

in the body of the information."

deadly

weapon

is

The use of a deadly weapon was considered as qualifying

Where relationship is not stated in the "cause of the

and not aggravating for purposes of imposing the death penalty

accusation,"

which was, however, considered as aggravating to award

constituting the offense, but only in the preamble or opening

exemplary damages.

statement of the complaint and the complaint upon which the

In People v. Caniezo the circumstance of deadly weapon

was not alleged but proven and was considered as generic
aggravating but did not make any difference in the imposition

or

in

the

narration

of

the

act

or

omission

appellant was arraigned does not state in the accusatory portion

the specifications of the acts constitutive of the offense, that he
is charged as the father of the victim.

of the penalty since under Article 63 where the penalty involved

are two indivisible penalties of reclusion perpetua and there are
no qualifying circumstances, the single indivisible penalty of
reclusion

The accused could not have been misled by the wording of

In People v. Cachopero, the award of exemplary damages

was deleted since the aggravating circumstances to justify the

perpetua

shall

be

imposed

regardless

of

Such omission is prejudicial to the right of the accused to

be informed of the nature of the accusations against him.

the

aggravating circumstance.

PLEA OF GUILTY
INFORMATION

the informations.
Exemplary damages was, however, awarded.

TO

ALLEGATIONS

IN

BODY

OF

A person of ordinary intelligence could not plead with logic

Thus, the plea of guilty is not on the offense alleged in the

that he had no notice that he is being charged with the repeated

preamble but for the crime alleged in the accusatory portion of

rape of his fifteen-year-old daughter.

Thus an aggravating circumstance, whether ordinary or

qualifying, should entitle the offended party to an award of

40

the information.

The fact that accused-appellant has not denied the

Thus accused did not, in fact, plead guilty to a capital

The failure to allege the fact of filiation and minority in the

allegation in the complaints that Mylene was below 18 years of

offense designated in the preamble but only to that part of the

information for rape is fatal and consequently bars conviction of

age when any of the crimes was committed cannot make up for

complaint that charges only simple rape under Art. 335, for

its qualified form which is punishable with death.

the failure of the prosecution to discharge its burden.

which the penalty is only reclusion perpetua, and not for rape
under R.A. No. 7659, qualified by the circumstance that the
offender is the father of the victim who is a minor, for which the
penalty is death.

Any circumstance that would qualify or aggravate the

crime charged must be specified in the information.

Because of its failure to discharge this burden and the

corresponding failure of the trial court to make a categorical
finding

He cannot therefore properly invoke Sec. 3, Rule 116,

which requires reception of evidence on a plea to a capital
offense.

Following the established rule that a penal statute,

whether substantive or procedural, shall be given a retroactive

as

to

the

minority

of

the

victim,

the

qualifying

circumstance of minority and relationship cannot be appreciated

in these cases.

effect if favorable to the accused, aggravating circumstances not

It is different with regard to the relationship of the of-

alleged cannot be appreciated.

fended party and accused-appellant, because the latter admitted

APPLICATION
TO
ALL
CRIMES
IMPOSITION OF DEATH PENALTY

NOT

INVOLVING

Thus, where the aggravating circumstance of dwelling and

that complainant is his daughter.

abuse of confidence or obvious ungratefulnnes, nocturnity or

Before the amendment the retroactive effect of nonallegation

of

aggravating

circumstance

even

if

proved

is

nighttime or treachery or abuse of superior strength not alleged

in the information cannot be appreciated.

perpetua as provided in the second paragraph of Art. 335 of the

inapplicable for the crime of robbery, the same not involving the
imposition of the death penalty.

Perforce, the death penalty imposed by the trial court in

each of the eight (8) cases should be reduced to reclusion

Although the information does not specifically allege

Revised Penal Code, as amended.

treachery as a qualifying circumstance in the commission of the

For said crime, what remains applicable is the old rule that
generic aggravating circumstances if duly proven in the course of
the trial could be taken into account by the trial court in
determining

the

proper

imposable

penalty,

even

if

such

circumstances is not alleged in the information.

The court clarified that with the amendment, the principle

is now applicable in all criminal cases, not only in cases where
the aggravating circumstances would increase the penalty to
death.

crime, the allegation in the information that the victim was four
years old at the time of the killing is sufficient compliance with

There must not only be proof of minority but also of the

relationship between the accused and the victim.

section 6, Rule 110 of the Revised Rules of Criminal Procedure,

as amended. Killing a child by an adult constitutes treachery
even if the mode of attack by the assailant is not proved by the
prosecution because a child of tender years could not be
expected to put up a defense and hence at the mercy of his or
her assailant.

MODIFYING CIRCUMSTANCES NEED NOT ALLEGE WITH

SPECIFICITY
WHETHER
IT
IS
QUALIFYING
OR
AGGRAVATING
It was earlier held that where the information, did not
allege with specificity as qualifying the killing to murder (it

THE JUDGMENT MUST MAKE AN EXPRESS FINDING OF THE

QUALIFYING CIRCUMSTANCES

merely alleged "with intent to kill, treachery and evident

premeditation) although established by the evidence, under the
present Revised Rules of Criminal Procedure, treachery has to be
considered a generic aggravating circumstance only.

The court, therefore gave fair warning to prosecutors that

The decision of the trial court must contain an express and

henceforth, they must prepare well-crafted informations that

categorical finding that the complainant was below 18 years old

This was reiterated in an en bane decision of the Court in

allege the circumstances qualifying and aggravating the crimes

when the crime of rape was committed to justify the imposition

People v. Manlansing, holding that where none of aggravating

charged, otherwise the same will not be considered by the court

of the death penalty.

circumstances were alleged in the informations with specificity as

in determining the proper penalty.

a qualifying circumstance elevating the killing to murder,

41

ascused should only be convicted of homicide.

evidence to support it need not necessarily be shown by direct

The words "aggravating/qualifying," "qualifying," "qualified
by," "aggravating," or "aggravated by" need not be expressly

This is no longer true.

proof but may be inferred from shown acts and conduct of the
accused.

stated as long as the particular attendant circumstances are

In a per curiam Resolution, the Court in People v. Aquino

specified in the Information."

Following the stream of our own jurisprudence, it is

enough to allege conspiracy as a mode in the commission of the

declared:
The ruling was reiterated in People v. Paulina and People

crime in either of the following manner:

v. Garin holding that the appellant may no longer rely on the

3

We therefore reiterate that Sections 8 and 9 of Rule 110 merely

require that the Information allege, specify or enumerate the attendant
circumstances mentioned in the law to qualify the offense.

These

circumstances

need

not

be

preceded

by

the

words

'aggravating/qualifying,' 'qualifying,' or 'qualified by' to be considered as

rulings Alba and Manalansing because of the ruling in People v.

Aquino and People v. Paulino.
WHEN
DEFECT
IN
INFORMATION
SUBSTANTIAL COMPLIANCE RULE

CURED:

THE

qualifying circumstances.

The information must state that the accused have confedIt is sufficient that these circumstances be specified in the

erated to commit the crime or that there has been a community

Information to apprise the accused of the charges against him to enable

of design, a unity of purpose or an agreement to commit the

him to prepare fully for his defense, thus precluding surprises during the

felony among the accused.

(1)
by the use of the word "conspire" or its
derivatives or synonyms, such as confederate, connive,
collude, etc. or
(2)
by allegations of basic facts constituting the
conspiracy in a manner that a person of common
understanding would know what is intended, and with such
precision as would enable the accused to competently enter
a plea to a subsequent indictment based on the same facts.
In the absence of conspiracy, so averred and proved an
accused can only be made liable for the acts committed by him

trial.

alone and this criminal responsibility is individual and not

Such an allegation, in the absence of the usual usage of
When the prosecution specifically alleges in the Information the

circumstances mentioned in the law as qualifying the crime, and succeeds

in proving them beyond reasonable doubt, the Court is constrained to
impose the higher penalty mandated by law.

collective.

the words "conspired" or "confederated" or the phrase "acting in

conspiracy," must aptly appear in the information in the form of
definitive acts constituting conspiracy.

Conspiracy Charged as a Crime

Thus, when conspiracy is charged as a crime, the act of

This includes the death penalty in proper cases."

In fine, the agreement to commit the crime, the unity of

purpose or the community of design among the accused must be

Unfortunately, this is one of those cases.

derivatives and synonyms or by allegations of basic facts

the death penalty.

an agreement to levy war against the Government or to adhere

Conspiracy must be alleged, not just inferred, in the
information on which basis an accused can aptly enter his plea, a
of evidence that may be required to prove it.

aggravating circumstances in the Information.

to the enemies and to give them aid or comfort, and decide to

commit it. * * *

matter that is not to be confused with or likened to the adequacy

To guide the bench and the bar, this Resolution clarifies

and resolves the issue of how to allege or specify qualifying or

For example, the crime of "conspiracy to commit treason"

is committed when, in time of war, two or more persons come to

The allegation of the twin circumstances of minority and

reasonable doubt during the trial, compels the Court to impose

the complaint or information.

conveyed such as either by the use of the term "conspire" or its

constituting the conspiracy.

relationship in the Information, which were proven beyond

conspiring and all the elements of said crime must be set forth in

CONSPIRACY CHARGED AS MODE OF COMMITTING A

CRIME

In establishing conspiracy when properly alleged, the

The requirements of the sufficiency of the information are

42

different when conspiracy is not charged as a crime in itself but

or mentioned in the charge.

CRIME

only as the mode of committing the crime as in the case of

Plunder consisting of several crimes.

b.

The failure, however, to designate the offense by statute or

The foregoing doctrines refer to the special qualifying

to mention the specific provision penalizing the act or an

circumstances that are required to be specifically alleged in the

There is less necessity of reciting its particularities in the

erroneous specification of the law violated does not vitiate

information.

information because conspiracy is not the gravamen of the

the information if the facts alleged clearly recites the facts

offense charged.

constituting the crime charged.

It would seem to be different when there is a mere

variance in the mode of the commission of the crime.

The conspiracy is significant only because it changes the

c.

criminal liability of all the accused in the conspiracy and make

The title of information or designation of offense is not

A.

controlling.

them responsible as co-principals regardless of the degree of

their participation in the crime.

Real Nature of Crime Determined by Facts Alleged in

Complaint or Information and Not by Title

It is the actual facts recited in the information that de-

a.

termines the nature of the crime.

The liability of the conspirators is collective and each

The real nature of offense is to be determined not by

participant will be equally responsible for the acts of the others.

its designation or title given by the Fiscal but the facts

alleged in the body of the Information.

a.

What controls is not the designation of the offense

but its description, and in the case of attending
circumstances, not their denomination but their
function.

If the killing was committed with the attendance of any

Need to Designate Statute Violated.

of the circumstances mentioned in Article 248 of the

d.

It is a constitutional right of any person who stands

Revised Penal Code, then the offense committed is

It is the province of the Court alone to say what the crime is

murder

or what it is named.

charged in a criminal prosecution to be informed of the

nature and cause of the accusation against him.

Even the justice of the peace, during the preliminary

they

are

mistakenly

called

They are qualifying circumstances nonetheless.

investigation of a case, is without authority to determine the

Pursuant to the above, Section 6, Rule 110 of the

although

aggravating in the information.

character of the crime committed.

Rules of Court, expressly requires that for a complaint or

b.

information to be sufficient, it must, inter alia, state the

having been committed by taking advantage of superior

His declaration upon the point is merely an opinion

designation of the offense by the statute, and the acts or

strength, a circumstance which qualifies a killing to

which in no wise binds the trial court.

omissions complained of as constituting the offense.

Thus, where the information characterized the killing as

murder,

the

information

sufficiently

charged

the

commission of murder.
This is essential to avoid surprise on the accused and
to afford him the opportunity to prepare his defense
accordingly.

e.

Allegations prevail over designation of the offense in the

information for conviction of accused who may therefore be
convicted of a crime more serious than that named in the
title or preliminary part if such crime is covered by the facts
alleged in the body of the information and its commission is

To comply with these fundamental requirements of

the Constitution and the Rules on Criminal Procedure, it is
imperative for the specific statute violated to be designated

established by the evidence.

EFFECTS OF VARIANCE IN MODE OF COMMISSION OF

43

c.

In a prosecution for robbery with rape, the fact that the

information did not mention Art. 335 of the Revised
Penal Code but Arts. 293 and 294 of that Code will not
prevent conviction of an accused under Art. 335.

The constitutional right of the accused to be informed of

the nature of the accusation against him is not violated

This principle was reiterated in People v. Torres,

thereby.

wherein the Court again held that it is not the technical

B.

Essential Elements Inferred from Allegation in Information

name given by the Fiscal appearing in the title of the

Information that determines the character of the crime

As former Chief Justice Moran pointed out: "If the

While the general rule is that an inference in the

but the facts alleged in the body of the information,

above requirement is not complied with and no name

complaint

where the accused charged with violation of General

has been given to the offense alleged to have been

Order No. 6 for carrying with him an unlicensed firearm

committed, the defect is merely of form which does not

the

Revised

Administrative

Code

punishable

c.

abuse

of

accused who was a minor.

Although the information charged the petitioner with

estafa, the crime committed was theft.

"Willfully, unlawfully" covers "knowingly" in illegal fishing.

determined not by the title of the complaint, nor by the

It is settled that what controls is not the designation of

specification of the provision of the law alleged to have

the offense but the description thereof as alleged in the

been violated, but by the facts recited in the complaint

information

Willful damage to property includes reckless imprudence.

"Deceit and promise of marriage was treated as mere

or information.

surplusage in qualified seduction case."

5.
This is so because from a legal point of view, and in a

B.P. Big. 22 cannot be deemed necessarily included in

the crime of estafa under RPC, Article 315, 2(d).

"Intent to gain" is presumed to be alleged in an information

where it is alleged that there was unlawful taking and appropriation

very real sense, it is of no concern to the accused what

is the technical name of the crime of which he stands
charged.

by the offender.

The offense of fraud denned under the Revised Penal

Code is malum in se, whereas B.P. Big. 22, also known
as Bouncing Checks Law, is a special law which

It in no way aids him in his defense on the merits.

prohibitum.

Long as the Facts Alleged the More Serious Offense

Fraud or estafa under the Revised Penal Code is a

did he perform the acts alleged in the body of the

distinct offense from the violation of the Bouncing

information in the manner therein set forth.

Checks Law.

If he did, it is of no consequence to him, either as a

They are different offenses, having different elements.

matter of procedure or of substantive right, how the

crime

which

those

acts

Limitation on Rule that an Accused may be Convicted of a

Crime which is More Serious than that Named in the Title so

given in the law some technical and specific name, but

the

C.

punishes the issuance of bouncing checks, a malum

The real question is not that he did commit a crime

constitute."

"Grave

with intent to kill" sufficiently avers discernment on the part of the

In such cases, the real nature of the crime charged is

denominates

as

"Having committed the offense criminally and feloniously, and

This is especially so where the facts pleaded are clearly

law

such

by

imprisonment of one to five years.

constitutive of a specific offense.

conclusions

interpreted by the Supreme Court is follows:

punishable with life imprisonment was held guilty under

prejudice the substantial rights of the defendant.

and

confidence" are not allowed the following terms were

(a) An accused could not be convicted under one act when

he is charged with a violation of another if the change
from one statute to the other involves:
1)

a change of the theory of the trial;

2)

requires of the defendant a different defense; or

3)

surprises the accused in anyway.

Where appellant is accused of violating a particular

provision of the Revised Penal Code on estafa, she may
not be convicted for violation of B.P. Big. 22 without
trenching on fundamental fairness.

44

(b) Illegal construction Where the information for illegal

construction does not specifically describe and locate

the building alleged to have been illegally constructed,

The general rule is that an accused cannot be

it is fatally defective because it is impossible on its face

convicted of a different mode of the commission of the

to identify the house allegedly constructed without the

offense charged in the information.

of force or intimidation.

Appellant was charged with rape committed by means

necessary building permit.

offeree or intimidation.
Where the law distinguishes between two cases of

It can be quashed.

violation of its provision, an information for violation thereof

must specify under which of the two cases, the defendant

In several cases, the accused whose guilt beyond

reasonable doubt, although affirmed by the Supreme Court,

stands accused of.

Otherwise put, his offense fell under Article 266-A(1)

of the Revised Penal Code.

escaped lethal injection because of the failure of the

Where the accused is charged with rape committed

But in convicting him of rape committed while his

thru force and intimidation, he can not be convicted of rape

prosecution to specifically allege the qualifying circumstance

victim was supposedly unconscious, the trial court applied

committed under paragraph 2 of Article 335 when the

Article 266-A(l)(b) of said Code.

of relationship or age in heinous crimes.

woman is deprived of reason or otherwise unconscious,

except when there is no objection.

The element of unconsciousness on the victim's part

The Supreme Court therefore urged the prosecuting

fiscals to state with particularity the fact of minority and the

was not alleged much less specified in the information.

It was held that an accused cannot be convicted of

actual relationship between the parties as worded in R.A.

rape of a mental retardate if this is not alleged in the

No. 7659.

information.

It cannot be made the basis of conviction, without

violating appellant's right to due process, in particular to be

It must be spelled out in more concrete terms.

informed of the nature of the accusation against him.

It was likewise held that the accused cannot be

This is what the amendment seeks to accomplish.

convicted under paragraph 2 or 3 of Article 335 of the

Revised Penal Code, because none of the modes of
committing rape specified therein were alleged in the

The amendment did not, however, limit the requirement

to

qualifying

circumstances

but

also

Information.

was equivalent to an 8 year-old).

To convict him under either of these

statutory

provisions is to deprive him of the constitutional right to be

Where there is no aggravating circumstance, the

informed of the accusation against him.

penalty is reclusion perpetual

errors by the prosecutors in Republic v. Asuncion, Arceo v.

qualifying facts that the crimes were committed in relation

information of this mode of committing the crime of rape

presentation of evidence to the contrary.

a finding that complainant was unconscious when the

appellant had carnal knowledge other.

Cunanan, People u. Magallanes and Lacson u. Executive

Secretary, where the prosecution failed to specify the

The court held that the absence of an allegation in the

was deemed waived by the absence of an objection and the

Thus in convicting appellant, the trial court relied upon

The requirement would also prevent a repetition of the

force and intimidation there was no objection to evidence of

subnormal mental incapacity (that is, her mental capacity

included

aggravating circumstances.

However, in People u. Atienza, involving the rape of a

13-year old minor charged with rape committed in 1996 by

The Court cited People u. Abiera, holding that the

accused

This contradicts the allegation in the information.

charged

with

rape

through

one

mode

of

commission may still be convicted of the crime if the

evidence shows another mode of commission, provided that

to their public office.

Appellant was charged with rape committed by means

45

the accused did not object to such evidence.

Failure

to

object

to

evidence

of

the

mode

of

commission of crime different from that alleged in the

Accordingly, appellant can be convicted of the crime

accused-appellant did not touch upon this point when something

charged through either the second or third circumstance of

more valuable than any property that a person could ever inherit

committing such crime.

in his lifetime is in danger of being taken away eternally.

information is considered a waiver:

OBSERVATIONS: LIMITATION ON WAIVER
a.

positively demonstrated since a waiver by implication cannot be

There is waiver and conviction allowed based on

evidence even if not alleged in the information, citing

The information in the foregoing cases charges an offense

separate opinion of then now C.J. Davide in People v.

but allowed waiver because of a variance between the allegation

Moreno, on waiver of constitutional right to be informed

and proof in the mode of commission of the offense without any

of nature and cause of accusation.

It is elementary that the existence of waiver must be

objection.

presumed.

The standard of waiver requires that it "not only must be

voluntary, but must be knowing, intelligent, and done with
sufficient awareness of the relevant circumstances and likely

In this case, the accusatory portion failed to specifically

Where the information charges no offense at all or would

allege that the rape was committed through force or

result in convicting the accused for a more serious offense than

intimidation, the prosecution was able to establish by

the offense charged waiver for failure to object should not be

evidence without any objection that the accused-

allowed.

consequences."

There must thus be persuasive evidence of an actual

intention to relinquish the right.

appellant that tended to prove that he committed the

rape by force and intimidation.

The court itself stated that the rules on the validity or

invalidity of a waiver are not something we have crafted

b.

Similarly, in People v. Orbita, the Information against

overnight to suit the instant case.

reasonable presumption against the existence and validity of

accused-appellant alleged that he had carnal knowledge

of

the

victim

by

means

offeree,

violence

and

intimidation, against the latter's will and consent.

Mere silence of the holder of the right should not be easily

construed as surrender thereof; the courts must indulge every
such waiver.

They have been extant since time that is now immaterial

to recall.

Necessarily, where there is a reservation as to the nature

of any manifestation or proposed action affecting the right of the

It did not allege her mental state.

In civil cases, we overturn decisions because the waiver of

certain rights was not done in accordance with the requisites.

accused to be heard before he is condemned, certainly, the

doubt must be resolved in his favor to be allowed to proffer
evidence in his behalf.

During the trial, however, the prosecution proved that

the victim is a mental retardate and the accused-

Hence, in Intestate Estate of the Late Vito Borromeo v.

appellant was convicted under paragraph 2 of Article

Borromeo, this Court set aside the waiver of hereditary rights

Our criminal rules of procedure strictly provide the step-

335 of the Revised Penal Code.

because it was not clearly and convincingly shown that the heir

by-step formula to be followed by courts in cases punishable by

had the intention to waive his right or advantage voluntarily.

death.

Although initially deficient, the criminal complaint was

deemed

corrected

when

the

prosecution

introduced

evidence of the complainant's mental condition and the

In criminal cases where life, liberty and property are all at

stake, obviously, the rule on waiver cannot be any less.

defense did not object, thereby waiving the procedural

defect.

The reason for this is to ensure that the constitutional

presumption of innocence in favor of the accused is preserved
and the State makes no mistake in taking life and liberty except

In this light, we are at a loss why counsel de oficio for

46

that of the guilty.

Hence, any deviation from the regular course of trial

dreary work rather than protect the rights of his client.

information which charges the accused of raping his six

should always take into consideration that such a different or

year-old daughter or committing acts of lasciviousness on

extraordinary approach has been undertaken voluntarily and

intelligently.

her, or of committing sexual abuse against her 11-year old

Of course, it may be stretching the argument too much to

daughter.

ascribe fatal incompetence upon herein accused's counsel for

this solitary instance of faux pas.

For otherwise, as in the instant case, denial of due process

Waiver is not allowed where the information charges

can be successfully invoked since no valid waived or rights has

been made.

no offense.

But, for sure, we must inquire if the waiver was validly

done.

An indictment must fully state the elements of the

The Court noted with deep regret the failure of the trial
court to inquire from accused-appellant himself whether he
wanted to present evidence; or submit his memorandum
elucidating

on

the

contradictions

and

insufficiency

of the

prosecution evidence, if any; or in default thereof, file a

demurrer to evidence with prior leave of court, if he so believes
that the prosecution evidence is so weak that it need not even
be rebutted.

specific offense alleged to have been committed.

In People v. Donato," the Court expounded on what rights

and privileges may be waived, viz.:

For an accused cannot be convicted of an offense,

"Although the general rule is that any right or privilege conferred
by statute or guaranteed by constitution may be waived, a
waiver in derogation of a statutory right is not favored, and a
waiver will be inoperative and void if it infringes on the rights of
others, or would be against public policy or morals and the public
interest may be waived.

even if duly proven, unless it is alleged or necessarily

included in the complaint or information

b.

Waiver is not allowed where the qualifying circumstance is

different from the qualifying circumstance alleged in the
information.

The inquiry is simply part and parcel of the determination

"While it has been stated generally that all personal rights

of the validity of the waiver, i.e., "not only must be voluntary,

conferred by statute and guaranteed by constitution may be waived, it

but must be knowing, intelligent, and done with sufficient

has also been said that constitutional provisions intended to protect

Where the accused alleged to be the father of the

property may be waived, and even some of the constitutional rights

victim who is under 18 years of age is charged with rape

awareness

of

the

relevant

circumstances

and

likely

consequences." which ought to have been done by the trial court

created to secure personal liberty are subjects of waiver."

under paragraph 2 of Article 266-A punishable by reclusion

temporal he cannot be convicted of rape under paragraph 1

not only because this was supposed to be an uncomplicated and

routine task on its part, but more importantly since accused-

While it is established that rights may be waived, Article 6

appellant himself did not personally, on a person-to-person

of bhe Civil Code explicitly provides that such waiver is subject

basis, manifest to the trial court the waiver of his own right.

to the condition that it is not contrary to law, public order, public

policy, morals, or good customs, or prejudicial to a third person

As things stand, both this Court and the trial court being

with a right recognized by law.

of Article 266-A punishable by death, even if this was duly

established.

c.

Waiver is not allowed where it would result in a more

serious penalty.

asked hook, line and sinker to take the word of counsel de oficio
whose own concern in that particular phase of the proceedings a

Thus, in the following cases, waiver was not allowed as it

quo may have been compromised by pressures of his other

would violate the constitutional right of the accused to be

commitments.

informed of the nature and cause of the accusation against him,

and, consequently, a denial of due process.

Under sections 8 and 9, Rule 110 failure to allege

aggravating or qualifying circumstances, even if proved
without objection cannot be availed of to qualify or
aggravate the offense charged.

For all we know, the statutory counsel of the indigent

accused at that time of the trial, although not evident in the
other aspects of his representation, only wanted to get rid of

a.

An accused cannot be convicted of rape or acts of

lasciviousness or of violation ofR.A. No. 7610 under an

47

The court ruled that the relationship and minority of

the victim are special qualifying circumstances which cannot

be alleged.

language defining the offense that the ingredients of the offense

be considered unless specifically alleged in the information.

cannot be accurately and clearly described if the exception is

An exception in a penal statute by which certain particulars

The right to be arraigned cannot be waived. There can

are withdrawn from or excepted out of its enacting clause,

be no trial in absentia without arraignment which must be in

defining a crime concerning a class or species, need not be

the presence of the accused.

denied in an information charging a violation of said statute.

omitted, the indictment founded upon the statute must allege

enough to show that the accused is not within the exception.
And, when the evident intent and purpose of the statute is
to prohibit and penalize generally an act as, for instance, the
smoking of opium, and the statute desires to withdraw from its

Variance, however, on date of commission of rape is

irrelevant.
Habitual delinquency

And where a denial is unnecessarily alleged in the

operation a limited class of persons, one charged with its

information, it need not be proved by the prosecution, for it is

violation is bound to show that he falls within the exception,

not an essential element of the violation charged, but a matter

whether the excepting proviso is found in the enacting clause or

of defense which must be proved by the accused if he relies

in a separate provision of the statute.

upon it.
A mere statement of habitual delinquency is a conclusion

A negative allegation of recruiting without a license, forms

of law and a plea of guilty to such an information does not make

an essential element of the crime charged. Hence, it was

the accused a habitual delinquent.

The information should specify the dates:

For instance, the Opium Law provides that "save upon the
prescription

of

duly

licensed

and

practicing

physician,

veterinarian, or dentist, no person shall inhale, snuff, chew,

ABSENCE OF ALLEGATION OF RECIDIVISM AND HABITUAL

DELINQUENCY
In the Absence of allegations in Information of Recidivism
and Habitual Delinquency the evidence was properly objected
to as inadmissible.
Similarly, the qualifying circumstance of treachery must be
specifically pleaded or alleged with sufficient clarity as to be
readily understood and not merely deduced.

In an information charging a violation of this statute, it is

and export of Philippine coins and notes.

not necessary to allege that the person charged is not under the
exception contained in the statute, i.e., that he did not use the
prohibited drug upon the prescription of a physician, veterinarian
or dentist, nor is it necessary to prove such allegation if made
unnecessarily, because said exception is a matter of defense
which the accused must prove.

(2) Want of Certificate to practice medicine is an essential

element of the crime of illegal practice of medicine.

(3) In illegal possession of firearm, the information must allege

that accused has no license to possess firearm.

To determine whether the exception is or is not a matter of

defense, the following test has been approved: If the language
of the law defining the otfense is so entirely separable from the
exception that the ingredients constituting the offense may be
accurately and clearly defined without any reference to said
the exception is a matter of defense which must be shown by
the accused.

Where the law distinguishes between two cases of violation of its

provision, an information for violation thereof must specify under which of
the two cases the defendants stands accused of.

An accused charged with murder by means of stabbing

cannot be convicted of homicide thru drowning, otherwise, his
constitutional right to be informed of the nature and cause of the
accusation against him would be violated, so also a person may

When an exception or negative allegation is not an

ingredient of the offense and is a matter of defense it need not

(1) "Without necessary license" is an ingredient of violation of

Circular No. 60 of the Central Bank prohibiting the import

exception, the pleader may then safely omit such reference, as

Negative and Excepting Allegations

date when the complainant was recruited.

swallow, inject, or otherwise take or use any such drug in his

body or permit the same to be used upon him by another."

(1) of the commission of previous crimes;

(2) of the last conviction or release; and
(3) of the other previous conviction or release of the
accused.

incumbent upon the prosecution to satisfactorily establish the

not be convicted of qualified seduction where the information

If, however, the exception is so incorporated with the

48

charges

him

with

rape

by

means

offeree,

violence

and

intimidation.

Venue in criminal cases is an essential element of

jurisdiction.

within the period of the statute of limitation and before the

commencement of the action.

Inference in complaint and conclusions are not allowed.

"Grave abuse of confidence" is a conclusion of law.
Robbery with Homicide

To determine venue in libel cases, the complaint or

Where the complaint for rape charges accused with having

information should contain allegations as to whether, at the time

committed the crime "on or about the month of June 1978" and

the offense was committed, the offended party was a public

the affidavit shows that it was committed for "sometime prior to

officer or a private individual and where he was actually residing

said period and subsequent thereto," attaching thereto the

at the time.

affidavit of the complainant that she was abused before the start
of classes in June 1978 which may thus be considered as part of

Failure to state in the information that the killing of the

victim was committed "by reason of or on occasion of the
robbery," does not bar conviction of accused of the special
complex crime of robbery with homicide.

Whenever

possible,

the

place

where

the

written

defamation was printed and first published should likewise be

alleged.

the complaint, the discrepancies between the accusation and the

complaint as to the time of occurrence of the carnal copulations
in rape do not affect the essential rights of the accused, where
the acts occurred within the period of time alleged in both
writings, and the difference noted in other respects was of a

That
SEC. 10.
Place of commission of the offense

allegation

would

be

sine

qua

non

if

the

published is used as the basis of the venue of the action.

SEC. 11.

Crimes Where Place is Essential

Date of Commission of the Offense

Violation of domicile;

b.

Penalty on keeper, watchman and visitor of an opium den;

c.

Trespass to dwelling;

d.

Violation of election law, e.g., 30 meter-radius carrying of

committed within the jurisdiction of the court is sufficient.

The remedy is a motion for Bill of Particulars under Rule

116, Sec. 6.
Venue of Criminal Action for Written Defamation

BUT in U.S. v. Smith it was held that the proof need not
correspond to the allegation, unless the time and place is
material and of the essence of the offense as a necessary

"Time" of the commission of the offense was changed to

ingredient in its description.

"DATE."
The evidence is admissible and sufficient if it shows:
Crimes Where Time is Essential

deadly weapon prohibited.

A general allegation in the complaint that the felony was

"About" is a very comprehensive term which when used

with regards to time, may cover a considerable extent thereof.

Purpose of Rule: TO SHOW TERRITORIAL JURISDICTION.

a.

formal, rather than a substantial, character.

circumstances as to where the libel was printed and first

(1) that the crime was committed at any time within the
period of limitation and

a.

Infanticide;'

b.

Violation of Sunday Statutes (Election Law); and

c.

Abortion.
The complaint must allege a specific time and place when

and where the offense was committed, but when the time so

(2) before or after the time stated in the complaint or

indictment and before the action is commenced.
Thus, an information charging the commission of the crime
of robbery in December 1902, was filed in March 19, 1903.

alleged is not of the essence of the offense, it need not be

proved as alleged, and the complaint will be sufficient if the
evidence shows that the offense was committed at anytime

49

It was held that the complaint was sufficient to sustain a

conviction even if the proof showed that it was committed in

January 1903.

name of the offended party is not absolutely indispensable for as

In case of offenses against property, the designation of the

It was, however held, in U.S. v. Dickao, that an allegation

from October 1910 to August 1912 is defective:

name of the offended party is not absolutely indispensable for as

long as the criminal act charged in the complaint or information

can be properly identified.

long as the criminal act charged in the complaint or information

can be properly identified.

To allege in an information that the accused committed rape on a

certain girl between October 1910, and August 1912, is too indefinite to
give the accused an opportunity to prepare his defense, and that

In U.S. v. Kepner, the Court laid down the rule that when
an offense shall have been described in the complaint with

NAME OF OFFENDED PARTY IN OFFENSES AGAINST PROPERTY

as to the person injured shall be deemed immaterial as the same

is a mere formal defect which did not tend to prejudice any

indefiniteness is not cured by setting out the date when a child was born
as a result of such crime.

sufficient certainty as to identify the act, an erroneous allegation

In Sayson v. People (supra), the petitioner vigorously

substantial right of the defendant.

maintains that he cannot be justifiably convicted under the

An information for bigamy must state the time and place
of the second wedding.

information charging him of attempting to defraud Ernesto

Rufino, Sr. and/or Bank of America because the totality of the
evidence presented by the prosecution shows very clearly that
the accused allegedly attempted to defraud Mover Films, Inc., a

Variance, however, on date of commission of rape is

irrelevant.

corporate entity entirely separate and distinct from Ernesto

Rufino, Sr.

Accordingly, in the aforementioned case, which had a

factual backdrop similar to the instant case, where the defendant
was charged with estafa for the misappropriation of the proceeds
of a warrant which he had cashed without authority, the
erroneous allegation in the complaint to the effect that the
unlawful act was to the prejudice of the owner of the cheque,
when in reality the bank which cashed it was the one which

Time is irrelevant in rape" and violations of the Dangerous

Drugs Law cases.

He firmly asserts that his conviction was in gross violation

suffered a loss, was held to be immaterial on the ground that the

of his right to be informed of the nature and cause of the

subject matter of the estafa, the warrant, was described in the

accusation against him.

complaint with such particularity as to properly identify the

particular offense charged.

SEC. 12.

Petitioner's claim is unavailing.

In the instant suit for estafa which is a crime against

Name of the Offended Party

The rule in this jurisdiction is that "variance between the
Name of Offended Party

allegations of the information and the evidence offered by the

prosecution in support thereof does not of itself entitle the

The rules on criminal procedure require the complaint or

accused to an acquittal."

The rules on criminal procedure require the complaint or

committed or any appellation or nickname by which such person

information to state the name and surname of the person

has been or is known and if there is no better way of identifying

against whom or against whose property the offense was

him, he must be described under a fictitious name.

committed or any appellation or nickname by which such person

has been or is known and if there is no better way of identifying

the name of the offended party is unknown).

particularity as to properly identify the offense charged, it

becomes immaterial, for purposes of conviction of the accused,
was actually Mever Films, Inc., and not Ernesto Rufino, Sr. nor

against whom or against whose property the offense was

should be particularly described to properly identify the crime (if

was the subject matter of the offense, was described with such

that it was established during the trial that the offended party

information to state the name and surname of the person

In crimes against property, the object taken or destroyed

property under the Revised Penal Code, since the check, which

him, he must be described under a fictitious name.

In case of offenses against property, the designation of the

50

Bank of America as alleged in the information.

Other Cases
a.

Even if the names of offended parties are not alleged, if the

offense belongs to the class of harmful ones (illegal practice
of medicine), the victims of petitioner should be considered

as offended parties.

The information is defective when it charges two or more

setting out separately the findings of fact and law in each case.

offenses.
b.

An erroneous allegation as to the person injured is of form

which did not tend to prejudice any substantial right of the
accused on the merits.

The rule enjoining the charging of two or more offenses in

an information has for its aim to give the defendant the
necessary knowledge of the charge to enable him to prove his

c.

The name of the offended party is, however, material in

defense.

The State should not heap upon the defendant two or

The act of insulting X is distinct from a similar act of

more charges which might confuse him in his defense.

public documents for purposes of concealing a crime was held as

Where the accused is charged in one information with
more

than

one

offense

and

makes

no

objection

to

The damage inflicted in estafa need not fall on the same

offense, the prosecution may properly submit evidence as to the

person against whom deceit was directed.

commission of each and all offenses charged and the court may
properly enter judgment for each and every offense proved and

In robbery with violence against or intimidation of person,

defective.

the

information on the ground that it charges more than one

f.

two separate provisions is duplicituous.

falsification of public documents and loss and destruction of

Effects of Duplicity of Offenses Charged

person, in the same language, and at about the same time.

e.

charges two violations of the Revised Penal Code contained in

An information for malversation of public funds through

insult against Y, even if the insult is preferred by the same

In robbery, ownership is not necessary.

An information is defective for duplicity where the accused

is charged in one complaint for assaulting three (3) persons by
different acts while they were asleep, an information which

slander.

d.

CASES WHERE INFORMATION CHARGES MORE THAN ONE

OFFENSE

impose the proper penalties for each offense.

So is an information which charges estafa and falsification

to conceal the defraudation.

a.

Inclusion of Different Acts of Offenses to Complete

Narration of Facts

the allegation of the owner's name in the information is

essential.

A motion to quash that more than one offense charged

should therefore be filed, otherwise it is deemed waived and the

g.

h.

The omission of value in theft cases is not fatal.

People v. Avellana, an information for murder is not

defective where another's name not the victim's name is
placed in the information. It is merely clerical.

accused may be convicted for as many offenses charged and

proved.

Duplicity of the offense

the offenses

charged

therein were included in the information merely to describe

and to narrate the different and specific acts, the sum total
cannot be assailed on the ground that it charges more than

Under Section 3, Rule 117, the accused may move to

quash the complaint or information on the ground that more
than one offense is charged except in those cases in which

one offense, because those different acts or offenses may

serve merely as a basis for the prosecution of one single
crime."

In the case of U.S. v. Cernias, it was held that while it

Upon the other hand, when two or more offenses are

is true that each of those acts charged against the

charged in a single complaint or information, and the accused

conspirators was itself a crime, the prosecutor in setting

fails to object to it before trial, the court may convict the

Purpose of Rule

committed

of which constitutes a crime, the validity of the information

existing laws prescribe a single punishment for various offenses.

SEC. 13.

Where the different acts or specifications charging the

accused with having

accused of as many offenses as are charged and proved, and

impose on him the penalty for each and every one of them

51

them out in the information did no more than to furnish the

defendants with a bill of particulars of the facts which it
intended to prove at the trial, not only as a basis upon

which to found an inference of guilt of the crime of

medicine and illegally advertising oneself as a doctor.

Held: That a complaint alleging these facts did not

conspiracy but also as evidence of the extremely dangerous

charge more than one offense.

and wicked nature of that conspiracy.

Held: That the information was not bad for duplicity

inasmuch as the acts charged were merely different means

The charge is not defective for duplicity when one

e.

single crime is set forth in the different modes prescribed by

that they are prohibited by separate sections of the statute.

A person accused of an offense is not charged by the

law for its commission, or the felony is set forth under

different counts specifying the way of its perpetuation, or
the acts resulted from a single criminal impulse.

number of counts or paragraphs, but by the specific criminal

c.

Single act that Violates Different Statutes

acts regardless of their number contained in one paragraph

or in one count.

A single act or incident might offend against two or

Neither is there duplicity when the other offense

more entirely distinct and unrelated provisions of law thus

described is but an ingredient or an essential element of the

real offense charged nor when several acts are related in
describing the offense.

b.

Treason

of committing the same offense, notwithstanding the fact

A person accused of an offense is not considered as

justifying the prosecution of the accused for more than one

having

offense.

paragraphs into which the acts charged may have been

been

charged

by

the

number

of

counts

or

grouped in the information, but by the specific criminal acts

charged, even if two or more of them are contained in one

The only limit to this rule is the Constitutional

Single Offense Committed by Different Means

paragraph or in one count.

prohibition that no person shall be twice put in jeopardy of

punishment for "the same offense." two (or more) offenses

It is "a well-settled rule in considering indictments

arising from the same act are not "the same."

While it is convenient that each count or paragraph

that where an offense may be committed in any of several

should contain only one offense or one specific act of trea-

different modes, and the offense, in any particular instance,

son for the sake of clearness, this does not justify the

The Rules prohibit the filing of such Information to

is alleged to have been committed in two or more modes

inference or claim that all of the acts charged under one

avoid con fusing the accused in preparing his defense.

specified, it is sufficient to prove that it be such as to

count or paragraph should be considered as only one act of

constitute the substantive offense," and the defendants,

offense, and proof of all the acts included therein is

Here,

may, therefore, be convicted if any one of the substantive

however,
with

four

the

charges into which the complaint may be separated has

petitioner

been made out.

charging only one offense.

prosecution

offenses,

with

charged

each

each

necessary to prove the charge.

Information
f.

Effect of Failure of the Prosecution to Prove All Acts

Charged Where Each Act Constitutes Treason by Itself

It is not objectionable, when a single offense may be

d.

Falsification

committed by the use of different means to charge in the

alternative, the various means by which the crime may have
been committed.

Thus, the defendant was accused of the violation of

the Medical Law.

If a person is being charged with four specific acts

The defendant, a municipal treasurer, received from

under one count, and each constitutes a complete act of

different persons for personal cedulas more than the

treason by itself independently of the others, the failure of

amount allowed by law falsified the records of his office so

the prosecution to prove all does not entitle the accused to

that they showed the receipt of the lawful amount only, and

be acquitted of the whole count or of all the charges

in his monthly statements to the provincial treasurer made

contained therein when any one or more of the acts are

similar false statements.

proved.

The information charged both illegal practice of

52

proved beyond reasonable doubt.

g.

Robbery in Band

There is, however, complex crime of murder with

a.

frustrated murder where a single shot hit both victims.

1)
2)
3)
4)

An information which charges the commission of

"robbery in a band or brigandage" and alleges facts showing
the commission of an act of robbery by a band of robbers,

j.

The single larceny rule

Violation of Child Abuse Law

simply sets out the same fact in different aspects and is not
Each incident of sexual intercourse and lascivious acts

bad for duplicity.

with a child under the circumstances mentioned in Republic

h.

The Anti-Graft Law

Section 3(e) of the Anti-Graft and Corrupt Practices

Act No. 7610 is a separate and distinct offense.

THE PRINCIPLE OF DELITO CONTINUADO

b.

The concept was not applied

1)

In Estafa committed on different occasions.

2)

In Malversation and falsification on different ocassions

3)

The 75 estafa cases was committed by conversion by

Act does not suffer from the constitutional defect of

vagueness by the use of the phrases "manifest partiality,"
"evident bad faith" and "gross inexcusable negligence."

agent of collection from different customers on different

Justice Quiason explains the Principle of Delito Continuado
(continuing crimes) in Santiago v. Garchitorena.

dates.
4)

Robbery and fencing are two separate crimes. Principle of Delito Continuado is not applicable.

In this case, 32 Amended Informations for violation of the

They merely describe the different modes by which

Anti-Graft Law alleged that the offenses were committed on the

the offense penalized in Section 3(e) of the statute may be

same period of time, i.e., on or about October 17, 1988 favoring

persons where evidence did not show that a single

committed, and the use of all these phrases in the same

32 aliens.

shot had slain three different persons, the appellant

5)

information does not mean that the indictment charges

three distinct offenses.

In a Single Information for murder for shooting three

was properly held liable for three separate murders and

The

several

acts

were

considered

by

the

court

sentenced

as

constituting only one crime.

i.

Theft of 13 cows;
theft of six roosters;
illegal charging of fees by lawyer from revenue victims;
Illegal approval of the application for the legalization of
stay of 32 aliens, constitutes only one crime

6)

Murder with Double Less Serious Physical Injuries

to

three

separate

penalties

ofreclusion

perpetrua.
In People v. Ducay several victims dying from
separate shots constitute separate offenses and if there

For delito continuado to exist, there should be a plurality of

Where in describing the offense of murder with double

acts performed during a period of time, unity of penal provision

less serious physical injuries, the information states that

violated, and unity of criminal intent or purpose, which means

appellant "feloniously attack, assault and shoot for several

that two or more violations of the same penal provisions are

times the victims," it in effect charged accused with several

united in one and the same intent or resolution leading to the

distinct and separate crimes, as it is the allegations or

perpetration of the same criminal purpose or aim.

actual recitals in the information rather than the technical

description of the crime that controls.

convicted of as many offenses as are charged therein and

It is not the act of pressing the trigger like a Thompson

submachine

gun

that

determines

the

number

of

felonies

committed, but the number of bullets which actually produced

them.
The firing of several bullets by the accused although
resulting from one continuous burst of gunfire, constitutes

perpetrator.

objected to, however, said defect of duplicity of charges

cannot be heard belatedly on appeal and accused may be

convicted of all offenses charged in one information.

In appearance, a delito continuado consists of several

crimes but in reality there is only one crime in the mind of the

The defective information not having been timely

is no objection for duplicity, the accused should be

several acts. Each person fell by different shots, is a victim of a

Examples of Delito Continuado.

53

separate crime of murder.

attempted murder.
Exceptions to Rule on Duplicity

When two or more acts combined in the commission of one

For a criminal complaint or information to charge the

The rule on duplicity of offenses does not apply where the

commission of a complex crime, the allegations contained

law prescribes a single penalty for various offenses such as a

therein do not necessarily have to charge a complex crime as

complex crime under Article 48 of the Revised Penal Code or

murder, robbery and kidnapping.

Rule on Complex Crimes

If the acts are so disconnected as to constitute separate

commission of the crime is not necessary as long as in charging

the commission of a complex offense like that of Robbery with
the

information

alleges

each

and distinct offenses or crimes, then of course, it would not be

It is sufficient that the information contains allegations

error to charge each of said acts in different complaints but

which state that one offense was a necessary means to commit

where the acts are so related as to constitute in fact but one

the other.

offense, then a complaint will not be defective if the crime is

described by relating two acts in the description of one offense.

The precise language of the statute used in alleging the

Homicide,

contains a description of two acts.

denned by law.

special complex crime such as Robbery with Homicide or with

Rape or Rape with Homicide, or Rebellion complexed with

crime, the complaint is not necessarily defective because it

element

of

the

The information in question in the present case contains

allegations properly charging the commission of the complex

To be a complex crime, the offense must be a necessary

crime of incriminatory machinations through unlawful arrest, and

means for committing the other, but if one offense is to conceal

the court a quo committed error when it ordered its dismissal.

the other, the accused may be convicted for both offenses as in

case of arson to conceal homicide or falsification to conceal

component offenses with the same precision that would be

necessary if they were made the subject of a separate
prosecution.

Where, however component offenses are not alleged in the

information as required by Sections 8 and 9 of Rule 110 they
cannot give rise to a special complex crime, consistent with the

Thus, although the phrase by reason or on occasion of the

robbery as provided for by the Revised Penal Code, was not

right of the accused to be informed of the nature and cause of

the accusation against them.

malversation.
OTHER CASES:
1)

Killing of four victims on the same occasion of the robbery is

robbery with quadruple homicide only one crime.

2)

Robbery with homicide and rape only one crime.

literally used in the recital of facts alleging the commission of the

two crimes of robbery with homicide, the information as filed
sufficiently and distinctly alleges the commission of the two

A complex crime is committed when two persons are killed

as a result of the same murderous act of the accused.

crimes of robbery and homicide and adequately informs the

accused of the crime charged.

Accused who abducted the victim and had sexual

When each one of the two deceased was killed by different

intercourse with her for several days is not guilty of

and separate sets of shots, fired respectively, through two

separate offense but the continuing offense of abduction

Under Article 48 of the Revised Penal Code, when a single

independent sets of acts of the accused, each one aimed

with rape.

act constitutes two or more grave or less grave felonies, or when

exclusively at a victim, for each victim killed, there is a separate

an offense is a necessary means for committing the other, the

and independent crime of murder.

No Duplicity in Rape With Homicide

penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period.

WHEN ONE OFFENSE IS NECESSARY MEANS FOR COMMITTING THE OTHER

There is no duplicity in an information for rape with

homicide.

The throwing of a hand grenade at the President with the

intention of killing him resulting in the death and injuries of

a.

Falsification of cedulas to commit malversation.

several persons constitutes the complex crime of murder with

b.

Estafa thru falsification.

54

Where seven persons committed rape with homicide in

conspiracy with each other, every one of the seven accused may

reason of the sale, and that the sale agreed upon was

separately be charged for rape with homicide.

the sole reason for the possession of the opium seized.

On petitioners' claim that the charge for violation of

Article 365 of the RPC "absorbs" the charges for violation
ofP.D. No. 1067, P.D. No. 984, and R.A. No. 7942, suffice it

There is no duplicity in a charge of estafa committed by

2)

to say that a mala in se felony (such as Reckless

When Possession of Drugs Absorbed in Sale

Imprudence Resulting in Damage to Property) cannot

the accused for misappropriation of the purchase price of several

lots

owned

by

the

Hometrust

Corporation

which

absorb mala prohibita crimes (such as those violating P.D.

were

In People v. Lacerna, possession of marijuana was held

fraudulently received by the accused against seven lot buyers on

No. 1067, P.D. No. 984, and R.A. No. 7942).

as absorbed in the sale thereof, except where the seller

the pretext that she was authorized to do so and which she

is

misapplied to her personal use instead of remitting the money to

further

apprehended

in

possession

of

another

quantity of the prohibited drugs not covered by or

the owner corporation, and seven other separate informations of

included in the sale and which are probably intended

estafa committed against the seven lot buyers.

for some future dealings or use by the seller.

The crime of estafa committed against the corporation and

Where aside from selling one block of marijuana to

those committed against the lot buyers are definitely separate

What makes the former a felony is criminal intent

(dolo) or negligence (culpa); what makes the latter crimes
are the special laws enacting them.
REBELLION CANNOT BE COMPLEXED WITH ANY OTHER
OFFENSE COMMITTED IN THE COURSE THEREOF

the arresting officers, accused-appellants were also caught

felonies.

in possession of another 12.04 kilograms of marijuana in

twelve individually wrapped blocks, hidden in a bag under a

They were dictated by different criminal intents, committed

table in their house.

The celebrated case of Enrile v. Salazar, reiterated the

Hernandez Rule, which ruled out the complexing of rebellion
witl-any other offense committed in its course under either of

under different modes of commission provided by the law on

the clauses of Article 48 of the Revised Penal Code either as a

estafa, perpetrated by different acts, consummated on different

Their possession thereof gives rise to a disputable

occasions, and caused injury to different parties.

presumption under Section 3(j), Rule 131 of the Rules of

means necessary to its commission or as an unintended effect of

an activity that constitutes rebellion.

Court, that they were the owners of the same.

a.

The Principle of Absorption

The rule was reiterated in Enrile u. Amin, where the

b.

1)

Forcible Abduction Absorbed in Rape

Criminal was absorbed by the crime of rebellion for which

Drugs Cases
Where complainant was forcibly taken away for the
In People v. Salamat, the illegal possession of 137 cans

purpose of sexually assaulting her, then the rape so

of opium and sale of 37 cans of opium was held as two

committed may absorb the forcible abduction.

in themselves.

The trial court, thus, correctly held that the rape

charged and proved in Criminal Case No. 44263 already

Only in the event where all the amount of the opium

absorbed the forcible abduction with rape complained of in

possessed and seized be in its totality the same as that

Criminal Case No. 44264.

be made the subject of a separate criminal action.

c.

"The crime of rebellion consists of many acts.

It is described as a vast movement of men and a complex net of
intrigues and plots.

which was possessed with the sole purpose of being

agreed upon, could it be said that the possession of the

Senator Enrile had already been charged and can not therefore

The Supreme Court went on to explain:

isolated acts and not one, each of which is punishable

delivered as the matter or subject of a sale previously

Supreme Court ruled that the crime of Harboring or Concealing a

Absorption does not include special laws

Jurisprudence tells us that acts committed in furtherance of the

rebellion though crimes in themselves are deemed absorbed in the one
single crime of rebellion.

opium was a necessary means to effect the delivery by

55

In this case, the act of harboring or concealing Col. Honasan is

clearly a mere component or ingredient of rebellion or an act done in
furtherance of the rebellion.

hence, prosecution under one law will not bar a prosecution

under the other.

Petitioner's alleged act of harboring or concealing which

was based on his act of conspiring with Honasan was committed

It cannot therefore be made the basis of a separate charge. The

case of People v. Prieto is instructive."

The Court held that: "This argument is specious in

in connection with or in furtherance of rebellion and must now be

deemed as absorbed by, merged in, and identified with the crime

rebellion cases."

of rebellion punished in Articles 134 and 135 of the RPC.

In the nature of things, the giving of aid and comfort can

In the light of the Hernandez doctrine, the prosecution's

Thus,

theory must fail.

only be accomplished by some kind of action.

jurisprudence

Its very nature partakes of a deed or physical activity as

The rationale remains the same.

opposed to a mental operation.

national,

as

well

overwhelmingly

as
favor

international
the

laws

and

proposition

that

common crimes, perpetrated in furtherance of a political offense,

are divested of their character as "common" offenses, and
assume the political complexion of the main crime of which they

This deed or physical activity may be, and often is, in itself
a criminal offense under another penal statute or provision.

All crimes, whether punishable under a special law or

are mere ingredients and consequently, cannot be punished

general law, which are mere components or ingredients, or

separately from the principal offense, or complexed with the

committed in furtherance thereof, become absorbed in the crime

same, to justify the imposition of a graver penalty.

of rebellion and can not be isolated and charged as separate

Even so, when the deed is charged as an element of

crimes in themselves.

treason it becomes identified with the latter crime and can not
be the subject of a separate punishment, or used in combination
with treason to increase the penalty is Article 48 of the Revised
Penal Code provides.

This does not detract, however, from the rule that the
ingredients of a crime form part and parcel thereof, and hence,
separately therefrom or by the application of Article 48 of the
Revised Penal Code.

cannot be held guilty of coercion or trespass to a dwelling in a

prosecution for robbery, because 3ossession of opium and force
are

inherent

in

smoking

and

in

robbery

In People v. Elias Rodriguez, the accused, after having

pleaded guilty and convicted of the crime of rebellion, faced an

in a prosecution for smoking the identical drug, and a robber

trespass

INDEPENDENT

are absorbed by the same and cannot be punished either

Just as one can lot be punished for possessing opium drug,

and

EFFECT OF FAILURE TO OBJECT TO

PROSECUTION FOR ILLEGAL POSSESSION

independent prosecution for illegal possession of firearm.

The Hernandez and other related cases mention common
crimes as absorbed in the crime of rebellion.

The Court ruled:

respectively, so may not a defendant be made liable for murder

as a separate crime or in conjunction with another offense

These common crimes refer to all acts of violence such as

where, as in this case, it is averred as a constitutive ingredient

murder, arson, robbery, kidnapping, etc., as provided in the

of reason.

Revised Penal Code.

THE PRINCIPLE OF ABSORPTION IN REBELLION APPLIES

TO SPECIAL LAWS
The prosecution tries to distinguish by contending that
harboring or concealing a fugitive is punishable under a special

The attendant circumstances in the instant case, however,

"An examination of the record, however, discloses that the crime

with which the accused is charged in the present case which is
that of illegal possession of firearm and ammunition is already
absorbed as a necessary element or ingredient in the crime of
rebellion with which the same accused is charged with other
persons in a separate case and wherein he pleaded guilty and
was convicted

constrain us to rule that the theory of absorption in rebellion

cases must not confine itself to common crimes but also to

Conceding the absence of a complex crime of rebellion

offenses under special laws which are perpetrated in furtherance

with murders, etc., still, by his plea of guilty, the accused-

of the political offense.

appellant has admitted all the overt acts described in the

law while the rebellion case is based on the Revised Penal Code;

56

information; and that if any of such acts constituted an

the crime. With either of these elements wanting, the crime of

independent crime within the jurisdiction of the lower court, then

rebellion legally does not exist.

R.A.

the averment in the information that it was perpetrated in

furtherance of the rebellion, being a mere conclusion, cannot be
a bar to appellant's conviction and punishment for said offense,
he having failed, at the arraignment, to object to the information
on the ground of multiplicity of crimes charged."
Enrile Doctrine Not Applicable in Subversion
In People v. Asuncion, it was held that the crime of illegal
possession of firearms under P.D. No. 1806 is not absorbed in

In fact, even in cases where the act complained of were

8294

amended

P.D.

No.

1866

abandoned

separate offenses.

committed simultaneously with or in the course of the rebellion,

if the killing, robbing, etc., were accomplished for private

Under the present rule, the unauthorized use of licensed or

purposes or profit, without any political motivation, it has been

unlicensed firearm is simply an aggravating circumstance in the

held that the crime would be separately punishable as a common

commission of homicide or murder and no longer a separate

crime and would not be absorbed by the crime of rebellion.

offense, effectively modifying People v. Quijada, and its progeny.

ILLEGAL POSSESSION OF FIREARM

KILLING WITH THE USE THEREOF

AND

UNLAWFUL

the charge of subversion under R.A. No. 1700.

An accused may, moreover, be charged with as many
Political Motive Must Be Shown

No.

previous rulings that qualified use of firearms and murder are

crimes as defined in our laws even if these arose from one

incident.

Thus, it has been held that the principle of absorption does

not apply to illegal possession of firearms in connection with the
crime of subversion but simply describes the mode or manner by
which the violation of Section 1 of P.D. No. 1866 was committed
so as to qualify to the penalty of death.

In People u. Louedioro, the court held that divested of its

The charge should therefore be amended to simple illegal

common complexion, any ordinary act, however, grave, assumes

Thus, where a single act is directed against one person but

possession of firearm, and was accordingly deemed amended by

a different color by being absorbed in the crime of rebellion,

said act constitutes a violation of two or more entirely distinct

which carries a lighter penalty than the crime of murder.

and separate provisions of the Revised Penal Code or by a

specified law as the RPC, the prosecution of one is not a bar to

In deciding if the crime committed is rebellion, not murder,

it becomes imperative for our courts to ascertain whether or not

the other, but such crimes should be alleged in separate

information.

the Supreme Court.

It should, however, be noted that under existing laws
(R.A. No. 8294) if homicide or murder is committed with the use
of an unlicensed firearm, such use of unlicensed firearm shall be
considered merely as an aggravating circumstance and cannot

the act was done in furtherance of a political end.

be the subject of a separate prosecution.

There is no complex crime of illegal possession of Firearm

The political motive of the act should be conclusively

demonstrated.

used in Homicide but they may be filed separately (qualified

illegal possession of firearm is only one offense).

In such cases, the burden of demonstrating political motive

People v. Deunida, reiterated the same principles, but

falls on the defense, motive being a state of mind which the

pointed out that the use of unlicensed firearm must be alleged,

accused, better than any individual knows.

otherwise, the crime is only murder.

It is not enough that overt acts of rebellion are duly

Abandonment of Doctrine

LAW

ON

ILLEGAL

POSSESSION

OF

Where murder or homicide results from the use of an

unlicensed firearm, the crime is no longer qualified illegal
possession, but murder or homicide, as the case may be.

In such a case, the use of the unlicensed firearm is not

considered as a separate crime but shall be appreciated as a

proven.
In case homicide or murder is committed with the use of
Both purpose and overt acts are essential components of

THE PRESENT
FIREARMS

unlicensed firearm, such use of unlicensed firearm shall be

merely considered as aggravating.

57

mere aggravating circumstance.

In view of the amendments introduced by Republic Act No.

Hence, he cannot be convicted of any of these crimes

8294 to Presidential Decree No. 1866, separate prosecutions for

without violating his right to be informed of the nature and cause

separate

considering the use of an unlicensed firearm in the commission

informations,

under

existing

law,

the

provisions

homicide and illegal possession are no longer in order.

of the accusation against him, not to mention his right to due

of the crime as aggravating cannot be given a retroactive effect,

process.

lest it would acquire the character of an ex post facto law.

Instead, illegal possession of firearms is merely to be

taken as an aggravating circumstance in the homicide case.

Following the doctrine enunciated in People v. Molina and

People v. Lazaro, among others, the possession of firearms

The crime of illegal possession of firearm, in its simple

form, is committed only where the unlicensed firearm is not used

against

accused-appellant

merely

as

an

Should the Court appreciate the use of an unlicensed firearm, the higher penalty of death shall be imposed.

aggravating

circumstance.

Hence, the penalty should be reclusion perpetua.

to commit any of the crimes of murder, homicide, rebellion,

insurrection, sedition or attempted coup d'etat.

As the law stands today, there can be no longer be a

separate conviction of the crime of illegal possession of firearms

Otherwise, the use of unlicensed firearm would be treated

either:

1)

under P.D. No. 1866 in view of the amendments introduced by

Republic Act No. 8294.

Since this is favorable to the accused, it shall be given

as essential ingredient in the crimes of rebellion,
insurrection, sedition or attempted coup d'etat; or

Instead, illegal possession of firearms is simply taken as

Thus, while it is true that under R.A. No. 8294, the use of
an unlicensed firearm aggravates the crimes of homicide or

as an aggravating circumstance in murder or homicide.

Neither can accused-appellant be charged with simple

retroactive effect.

an aggravating circumstance in murder or homicide pursuant to

Section 1 of R.A. No. 8294.

2)

On the separate charge of illegal possession of firearm,

this is not allowed under the new law.

THE LAW HAS A RETROACTIVE EFFECT ONLY IF IT IS

FAVORABLE TO THE ACCUSED

murder, the provisions of the said law cannot apply to the case
at bar because the crime was committed prior to the effectivity
of the said law on July 6, 1997.

illegal possession.
R.A. No. 8294 is given retroactive effect in the sense that
The same may only done where no other crime is committed.

the use of unlicensed firearm in the commission of a crime is

The provisions of R.A. No. 8294 may be applied retro-

considered merely as an aggravating circumstance and not as a

actively so as to prevent conviction of the separate crime of

separate crime.

illegal possession of firearm because this accrues to the benefit

of the appellant.

An accused cannot be convicted of homicide or murder

with "the use of the unlicensed firearm as aggravating,"
inasmuch as said felonies are not charged in the information but
merely mentioned as the result of the use of the unlicensed
firearm.

It is only when the new law will be advantageous to the

accused that the Law may be given retroactive effect, such as
when it will spare him from a separate conviction for the crime of

It cannot, however, be applied retroactively to aggravate

the crime of homicide or murder.

illegal possession of firearm.

Illegal Possession As Separate offense
Thus, where at the time accused was charged in two

Accused-appellant was not arraigned for homicide or

murder.

separate informations, one with robbery with homicide with the

use of an unlicensed firearm punishable with reclusion perpetua
to death and another for the use of an unlicensed firearm
punishable by death, the existing law allows the filing of the

58

It does not, however, mean that there can no longer be

any prosecution for the crime of illegal possession of firearm.

In general, all pending cases involving illegal possession of

firearm should continue to be prosecuted and tried if no other

crimes and prosecution.

The rule was clarified in People u. Cano:

crimes expressly indicated in Republic Act No. 8294 are involved

(murder or homicide under Section 1 and rebellion, insurrection,
sedition or attempted coup d' etat under Section 3.

Thus, where the other offense charged in a Criminal Case

for violation of COMELEC Resolution No. 3045 is not one of
those enumerated under R.A. No. 8294, the respondent judge
was correct in not quashing the information in the Criminal Case.

It was, however, held in Lontok, Jr. v. Gorgonio, that if

"From the viewpoint of trial practices and justice, it is, to say the
least, doubtful whether the prosecution should split the action
against the defendant, by filing against him several informations,
namely, one for damage to property and serious and less serious
physical injuries, thru reckless negligence, before the Court of
First Instance, and another for slight physical injuries thru
reckless negligence before the justice of the peace or municipal
court. One thing is, however, certain.
Such splitting of the action would work unnecessary inconvenience

It was however, made clear in the en bane decision in

Agote u. Lorenzo, that there can be no separate conviction for
illegal possession of firearm where another crime was commited
at the same time for instance, violation of the COMELEC
resolution on gun ban even if the firearm was not being actually
used or discharged, holding that there can be no separate
offense of illegal possession of firearms and ammunition if there

Reckless Imprudence Cases

Where both damage to property with less serious physical

and another for damage to property.

If there is damage to property only, the amount fixed

there should be an additional penalty for the latter.

Without mentioning Lontok, Jr. v. Gorgonio, the Supreme

Court in Buerano v. Court ofAppeals, reiterated the rule in

Instance.

People v. Buan

Worse, still, in the event of conviction in the municipal court and

appeal to the Court of First Instance, said evidence would still have to be

The Court in Reodica v. Court ofAppeals,97 held that reckless

imprudence resulting in slight physical injuries and damage to property is

As stated in People v. Buan:

not a complex crime and cannot be the subject of a single information,

they are separate offenses subject to distinct penalties, reiterating the

Reason and precedent both coincide in that once convicted or

acquitted of a specific act of reckless imprudence, the accused
may not be prosecuted again for that same act.

act of physical injuries and damage to property.

ruling in Lontok u. Gorgonio.

The two offenses cannot be complexed because each

For the essence of quasi-offense of criminal negligence is the

offenses is not a grave or less grave felony.

execution of an imprudent or negligent act that, if intentionally done,

The two offenses may, however, be consolidated since

The law penalizes thus the negligent or careless act, not the result
thereof.

under the expanded jurisdiction of the municipal trial courts

damage to property thru reckless imprudence now falls under its
jurisdiction.

determine the penalty, it does not qualify the substance of the offense.

SEC. 14.
Amendment or Substitution

injuries and another for the damage to property, for both the
injuries and the damages committed were caused by one single

Reiteration of Lontok v. Gorgonio:

introduced once more in the latter court."

The gravity of the consequence is only taken into account to

The information cannot be split into two; one for physical

Damage to property in sum of P780.00 and Slight Physical

Injuries thru Reckless Imprudence cannot be made in a single
information if slight physical injuries prescribes, it must be
dismissed.

before two different courts, the municipal court and the Court of First

would be punishable as a felony.

therein should be imposed but if there are also physical injuries,

Example:

for it would require the presentation of substantially the same evidence

injuries were caused by one single act of defendant, the

information cannot be split into two one for physical injuries

informations must be filed.

to the administration of justice in general and to the accused in particular,

is another crime committed such as illegal possession of

dangerous drugs.

one offense is light, there is no complex crime. Separate

And, as the careless act is single, whether the injurious result

should affect one person or several persons, the offense (criminal
negligence) remains one and the same, and can not be split into different

59

AMENDMENT EXPLAINED: WHEN LEAVE OF COURT BEFORE

PLEA REQUIRED

However, once a motion to dismiss or withdraw the

Under the former rule, amendment whether as to form or
substance is a matter of right before plea.

The rule was, however, amended by requiring "any

Once the case had already been brought to Court whatever

information is filed the trial judge may grant or deny it, not out

disposition the fiscal may feel should be proper in the case

of subservience to the Secretary of Justice, but in faithful

thereafter should be addressed for the consideration of the

exercise of judicial prerogative.

Court.

The trial judge must himself be convinced that there was

amendment before plea, which downgrades the nature of the

offense charged in or excludes any accused from the complaint
or

information,

can

be

made

only

upon

motion

by

the

prosecutor, with notice to the offended party and with leave of

indeed no sufficient evidence against the accused, and this conThe only qualification is that the action of the Court must
not impair the substantial rights of the accused, or the right of

What is imperatively required is the trial judge's own

Thus, the complaint cannot be withdrawn by the Fiscal
without the court's consent.

assessment of such evidence, it not being sufficient for the valid

and proper exercise of judicial discretion merely to accept or

and copies of its order shall be furnished all parties, especially

the offended party.

evidence in the possession of the prosecution.

the people to due process of law.

court."

The court shall state its reasons in resolving the motion

clusion can be arrived at only after an assessment of the

reject the prosecution's word for its supposed insufficiency or to

The provincial fiscals are not clothed with power, without

simply rely on Crespo u. Mogul.

the consent of the court, to dismiss or nolle prosequi criminal

The amendment is designed to remove the absolute

actions actually instituted and pending further proceedings.

control of the prosecution of a criminal action after the filing of

information even before a plea is entered which seems to be the
case as provided for in the first sentence of the first paragraph
that the complaint or information may be amended, in substance

The power to dismiss is vested solely in the court, i.e., the

presiding judge.

FINDING OF GRAVE ABUSE OF DISCRETION AND NOTICE

TO PARTIES
In the absence of a finding of grave abuse of discretion,
the court's denial of a motion to withdraw information pursuant
to the Secretary's resolution is void.

or form, without leave of court, at any time before the accused

pleads; however, under the amended rule, any amendment

The Supreme Court stressed, however, that the real and

before plea, which lessens the gravity of the offense charged

ultimate test of the independence and integrity of the trial court

and/or excludes any of the accused from the complaint or

is not the filing of the motions to suspend proceedings and defer

information, must be filed with leave of court and the parties,

arraignment at that stage of the proceedings but the filing of a

especially the private complainant shall be duly furnished copies

motion to dismiss or to withdraw the information on the basis of

of the order resolving the motion therefor and explaining the

a resolution of the petition for review reversing the Joint

reasons for such disposition.

Resolution of the investigating prosecutor.

For this reason the amendment requires parties, especially

the private complainant to be duly furnished copies of the order
resolving the motion therefor and explaining the reasons for
such disposition.

The amendment under the second par may only be made

especially with notice to the offended party.

This is in accord with the ruling in Crespo v. Mogul, It is

Before that time, the pronouncement in Crespo v. Mogul

intended to prevent the prosecution from abusing the process of

that "once a complaint or information is filed in Court any

amendment before plea by dropping any of the accused from the

disposition of the case as its dismissal or the conviction of the

information or reducing the offense charged whether the accused

accused or acquittal of the accused rests in the sound discretion

had been arraigned or not and whether it was due to a

of the court, did not yet become relevant or applicable."

reinvestigation of the fiscal or a review by the Secretary of

Justice, similar to what happened in the case of Dimatulac u.

What may be Amended

Only a valid information may be amended.

An information filed before the effectivity of the law

Court Must Make Independent Assessment

Vilon.

punishing the offense may not be amended after the law had
come into effect.

60

Time to Amend
Amendment of an information may be made at any time

The amendment in a libel case which merely specifies the

The phrase "on or about" employed in the information

specific address in Makati where the libelous articles were first

does not require the prosecution to "prove any precise date

printed and published is merely formal.

which is not so remote as to surprise and prejudice the

before the accused enters a plea to the charge."

defendant.
Change of Dates of Commission of Crime

The prosecution is free to amend the information without

In case of surprise, the Court may allow an amendment of

leave of court before arraignment.

Thus, the change in the date of the commission of the

Provided, the amendment does not downgrade the nature

of the offense charged or excludes any accused from the
complaint or information.

crime of Grave Coercion from June 24, 1981 to August 28, 1981
rights of the accused, as the said proposed amendment would

The difference in dates is only about two months and five

days,

which

disparity

is

amply

comprehended

within

the

allegation of "on or about."

stood,

would

no

longer

be

available

after

Nor will the amendment or correction cause any surprise

on the accused, who has been furnished the affidavits of the

amendment is made, and when any evidence the accused might

prosecution witnesses, all of which uniformly state that the date

have, would no longer be available after the amendment is

of the commission was August 28, 1981.

made, and when any evidence the accused might have would be
The amendment of the complaint for rape changing the

On the other hand, an amendment which merely states

information from February 13, 1976 to February 5, 1976 as

with additional precision something which is already contained in

testified to by the complainant, a difference of only eight (8)

the original information, and which therefore, adds nothing

days was only a matter of form and did not prejudice the rights

essential for conviction for the crime charged is an amendment

of the appellant.

as to form that can be made at any time.

which

neither

Rule Not Applicable Where Disparity is Great

commission of the offense is not a material ingredient of the

crime of qualified theft cannot be given much weight in this case
because the disparity of time between the years 1964 and 1969
is so great as to defy approximation in the commission of one
and the same offense.

While it has been held that except when time is a material

Under Section 10 of Rule 110 of the Rules of Court "it is

amendment

commission of the offense from June 16, 1910 to June 1911.

The petitioner's argument that the time or date of the

date of commission of the crime alleged in the original

An

months was merely a matter of form and does not prejudice the
Ramos, where the Fiscal was permitted to amend the date of the

the

inapplicable to the complaint or information as amended.

in the last digit of the year, the difference of one year or twelve
rights of the accused, reiterating the ruling in the case of U.S. v.

prejudiced by the amendment of a complaint or information is,

originally

In the case of People u. Riuera, the amendment of the

information as to the date of the commission of the offense from
March 2, 1964 to March 2, 1965 which was due to a clerical error

TEST AS WHEN RIGHTS OF ACCUSED PREJUDICED BY

AMENDMENT

when a defense under the complaint or information as it

necessary to meet the amendment."

is more formal than substantial and would not prejudice the

not alter the nature of the offense of grave coercion.

The test as to when the rights of an accused are

the information as to time and an adjournment to the accused, if

adversely

affects

the

not necessary to state in the complaint or information the

substantial right of the accused, e.g., does not deprive him of his

precise time at which the offense was committed except when

right to invoke prescription nor affects and/or alters the nature

time is a material ingredient of the offense, but the act may be

of the offense originally charged nor involves a change in the

alleged to have been committed at any time as near to the

basic theory of the prosecution so as to require the accused to

actual date at which the date of the offense was committed as

undergo any material change or modification in his defense is an

the information or complaint will permit."

amendment as to a matter of form.

61

ingredient of an offense, the precise time of commission need

not be stated in the information, this court stated that this does
not mean that the prosecution officer may be careless about
fixing the date of the alleged crime, or that he may omit the
date altogether or that he may make the allegation so indefinite
as to amount to the same thing.

an

of an opportunity to produce evidence for their defense if they

approximation of time of the commission of the offense and the

The

prosecution

had desired, in relation to said amendment "Consequently, the

precise date need not be stated but it does not mean that it can

accused is not thereby denied any opportunity to present

prove

evidence in his defense."

any date

is

remote

given

or

far

the

chance

to

removed from

allege

the given

approximate date so as to surprise and prejudice the accused.

allowed was the allegation in the information that B carried the

allegations

of

habitual

delinquency

and

recidivism is not a substantial amendment.

from the case of People u. Opemia, where the difference in dates

was from 1947 to 1952.

They do not have the effect of charging another offense

revolver and C, the knife, instead ofC carrying the revolver and
B, the knife.

Habitual Delinquency
Additional

The foregoing cases should, however, be distinguished

In Arevalo u. Nepomuceno, the amendment which was

jurisdiction of the court. All other matters are merely of form.

different or distinct from the charge of qualified theft contained

The difference in date could not be attributed to a clerical

in the information.

error because the difference is not only in the year but also in
after

the month and the last two digits of the year, and the difference

arraignment was to include one of the accused Ricardo Felix alias

In

People

v.

Joseph

Casey,

the

amendment

"is so great as to defy approximation in the commission of one

"Carding Tuwad" who was then armed with a firearm.

and the same offense."

The Supreme Court, after stating the test as to whether a

defendant is prejudiced by the amendment, stated that: "A look
into our jurisprudence on the matter shows that an amendment
to an information introduced after the accused has pleaded not
guilty thereto, which does not expose the accused to a charge
which could call for a higher penalty, does not affect the essence
of the offense or cause surprise or deprive the accused of an
opportunity to meet the new averment had each been held to be
one of form and not of substance not prejudicial to the accused
and, therefore, not prohibited by Section 13, Rule 110 of the

Discharge to be State witness under Witness Protection

Rule

penalty that the court might impose in the event of conviction.

The foregoing rule applies in withdrawing or discharging to

They do not alter the prosecution's theory of the case nor

possibly prejudice the form of defense the accused has or will

protection rule without the need of proving the requirement for

assume

the discharge of a state witness despite a pending motion for

their discharge under Section 17, Rule 119 unless they are

Additional Allegations of Conspiracy

retained in the information in which case section 17, Rule 119 is

the applicable rule.

In Regala v. CFI, the defendant was charged with murder.

After

In U.S. v. dela Cruz, the amendment in the information for

the

plea,

the

fiscal

presented

an

amended

information wherein two other persons were included as co-

brigandage sought to be made was to eliminate the words "led

accused.

by one Silverio" and to substitute the words "under the

but before the presentation of the evidence of the defense.

The said new allegations relate only to the range of the

be a state witness before plea some accused under the witness

Revised Rules of Court.

command of Luciano San Miguel" after the prosecution rested

Neither do they tend to correct any defect in the

jurisdiction of the trial court over the subject-matter of the case.

PROHIBITED AMENDMENTS; WHAT ARE SUBSTANTIAL

AMENDMENTS

There was the further allegation that the accused and his
co-defendants had conspired and confederated together and
mutually aided one another to commit the offense charged.

The Supreme Court allowed the said amendment holding

Amendments that are prohibited after the accused has

that it did not prejudice in any sense the right of the accused as

pleaded are amendments in substance. And the substantial

"it did not affect the essence of the crime charge, but merely an

matters in the complaint or information is the recital of facts

The admission of the amendment was upheld by the

accidental detail of the same" and it did not deprive the accused

constituting the offense charged and determinative of the

Supreme Court holding that the amendment is a mere matter of

62

form.
After a reinvestigation, the prosecution moved to amend
In People v. Zulueta, an information for Malversation of
public property was amended with the additional assertion that
in

permitting

the

misappropriation,

the

accused

acted

the information with the inclusion of two other accused alleging

conspiracy.

in

conspiracy with Commissioner Llanes who was subsequently

The

Supreme

Court,

citing

Regala,

not

prejudice

held

that

the

booked for malversation of the identical property also in the

amendments

same court.

participation as principal in the crimes charged did not change.

The Supreme Court held that there was a substantial

amendment.

would

the

accused

whose

In People v. Montenegro, the accused was charged with

robbery before the CFI of Quezon City and entered a plea of not
guilty.

Surely, the preparations have to be radically modified to

meet the new situation.

Before the trial could proceed, the fiscal sought to amend

the complaint:

For undoubtedly, the allegation of conspiracy enables the

prosecution to attribute and ascribe to the accused all the acts,
knowledge, admissions and even omissions of his co-conspirator
Angel Llanes in furtherance of the controversy.

1)
2)
3)

from robbery to robbery in an uninhabited place;

alleging conspiracy among all accused; and
deleting all items, articles and jewelries alleged to have
been stolen in the original information substituting them
with a different set of items.

The amendment thereby widens the battlefront to allow

the use by the prosecution of newly discovered weapons, to the
evident discomfiture of the opposite camp.

The Supreme Court citing and quoting People v. Zulueta

(supra), held that the allegation of conspiracy among all the
private respondents-accused which was not previously included

The Supreme Court distinguished the case from Regala by

explaining that the amendment therein did not modify the basic
theory of the prosecution that the accused had killed the

in the original information is a substantial amendment saddling

the respondents with the need of a new defense in order to meet
a different situation in the trial court.

deceased by a voluntary act and deed.

Here there is an innovation, or the introduction of another

alternative imputation, which, to make matters worse, is
inconsistent with the original allegations.

In People v. Court of Appeals, the accused Sixto Ruiz who

was charged with murder entered a plea of not guilty.

63

AMENDMENTS AFTER PLEA CHANGING THE NATURE OF

OFFENSE CHARGE IS PROHIBITED

Addition of Intent to Gain

Amendment to Conform to Evidence Allowed

Where intent to gain could already be inferred from the

The Supreme Court held that the proposed amendments in

allegations of the information, an amendment which merely

the amended information are clearly substantial and have the

states with additional precision something which is already

effect of changing the crime charged from "Robbery" punishable

under

Article

209

to

"Robbery

in

an

Uninhabited

Place"

punishable under Article 302 of the Revised Penal Code, thereby

Amendments to conform to the evidence to be presented

during the trial is permissible.

contained in the complaint for robbery, and which therefore adds

nothing essential to the conviction for the crime charged is a

MISTAKES TO CONFORM TO EVIDENCE

formal amendment and can be made at any time.

AMENDMENT BY SUBSTITUTION

AMENDMENT TO ALLEGE OFFENSE COMMITTED IN RELATION TO OFFICE

has been made in charging the proper offense, the court shall

exposing the private-respondent accused to a higher penalty as

computed to the penalty imposable for the offense charged in
the original information to which the accused had already
entered a plea of "not guilty" during their arraignment.

If it appears at any time before judgment that a mistake

dismiss the original complaint or information upon the filing of a

It has been held that after the case of homicide committed

Moreover, the change in the items, articles and jewelries

by

PNP

officer

was

transferred

by

the

RTC

to

the

new one charging the proper offense in accordance with Rule

119, Section 11, provided, the accused would not be placed
thereby in double jeopardy.

allegedly stolen into entirely different articles from those

Sandiganbayan after trial, on the ground that the offense was

originally complained of affects the essence of the imputed

committed in relation to the public office of the accused and,

crime, and would deprive the accused of the opportunity to meet

therefore, falls under the jurisdiction of the Sandiganbayan, an

Section 11 of Rule 119 provides that when it becomes

all the allegations in the amended information, in the preparation

amendment to allege that the offense of homicide committed by

manifest at any time before judgment that a mistake has been

of their defenses to the charge filed against them.

a member of the PNP was committed "in relation to his office"

made in charging the proper offense, and the accused cannot be

may be made at any time before arraignment before the

convicted of the offense charge, or of any other offense

Sandiganbayan, and indeed by leave of court at any time before

necessarily

judgment is rendered by the Sandiganbayan, considering that

discharged, if there appears to be good cause to detain him.

It will be observed that private respondents were accused

as accessories after the fact of the minor who had already been
convicted

of robbery

of

the

items

listed

in

the

original

information.

offense charged (i.e., murder), the qualifying circumstance

alleged in the information, or the defenses that accused may
assert before the Sandiganbayan.

manifestly incongruous as to be allowed by the court.

In other words, the amendment may be made before the

Sandiganbayan without surprising the accused or prejudicing his

NO NEED OF ARRAIGNMENT WHERE AMENDMENT MERELY

FORMAL

originally charged.

shall

not

be

In such case, the court shall commit the accused to answer

for the proper offense and dismiss the original case upon the

The rule, therefore, does not apply where the accused may
be convicted of any other offense necessarily included in the

Where the original complaint for rape charged her father

with the crime of rape allegedly committed on or about the 13th

Where the amendment was not substantial, no second plea

The particular manner in which the threat made is not a

accused

offense charged.

An amendment deleting the word "orally" from a charge of

amendment since it did not affect the nature of the crime as

the

filing of the proper offense.

substantive rights.
grave threats to conform to the evidence is merely a formal

therein,

such an amendment would not affect the juridical nature of the

To charge them now as accessories after the fact for a

crime different from that committed by the principal, would be

included

day of February but during the trial, the complaining witness

testified that she was raped by her father on February 5 of the

is necessary.

same year, there was no need for the court to dismiss the

qualifying ingredient of the offense.

original complaint and direct the fiscal to file the proper

64

complaint.

also be made even if it may result in altering the nature of the

charge so long as it can be done without prejudice to the rights

The trial judge could have simply granted the motion for

of the accused.

homicide may also be dismissed before the accused pleads, to

leave to amend the complaint.

Hence, in the case of Dimalibot v. Salcedo, the accused
1)

Amendment and Substitution Distinguished

2)

Scope of Rule

The above section contains two parts: One authorizes the

on bail. However, the then provincial fiscal, after a review of the

Justice

the killing complained of was perpetrated with the qualifying

substitution of a defective information by the correct one.

circumstances

of

treachery,

taking

advantage

of

victim.

placed in double jeopardy.

Explaining Section 14 of Rule 110, the Supreme Court

stressed:
"The first paragraph provides the rule for amendment of the
information or complaint, while the second paragraph refers to
the substitution of the information or complaint.

amendments

by

That is from the filing of the information up to and before

made in charging the proper offense.

filed against the accused who were ordered re-arrested without

offense.

Perusal of the 1985 Rules on Criminal Procedure will show

that there are only two provisions concerning the dismissal of an

judgment that a mistake has been made in charging the proper

offense (substitution), provided the defendant would not be

discussed

governed by Section 11, Rule 119 when a mistake has been

Consequently, an amended information for murder was
the amount of bail being fixed, the new charge being a capital

information and order the filing of a new one charging the proper

extensively

trial, while amendments during trial and be fore judgment is

included in the first information) in substance or form, without

offense, the court may dismiss the original complaint or

Regalado

superior

offense or an offense which necessarily includes or is necessarily

The other provides that, if it appears at any time before

In Galvez v. Court of Appeals the Supreme Court thru

affidavits of the witnesses for the prosecution, discovered that

strength, and employing means to weaken the defense of the

thereafter, only as to matters of form.

give way to the filing of a new information for murder.

therein were originally charged with homicide and were released

amendment of an information or complaint (involving the same

leave of court, at any time before the defendant pleads, and

Be that as it -may, it is quite plausible under Section 14 of

Rule 110 that, instead of an amendment, an information for

information other than on motion of the accused, namely,

The Court ruled therein that the amendment was proper,

Section 14 of Rule 110 and Section 11 of Rule 119.

pursuant to Section 13, Rule 106 of the 1940 Rules of Court

(now Section 14, Rule 110 of the 1985 Rules on Criminal
Procedure), thus:

But then, it may be contended that these rules speak of a

dismissal by the court when there is a mistake in charging the

"Here, these rules properly apply, since it is undisputed that the

herein accused were not yet arraigned before the competent
court when the complaint for homicide was amended so as to
charge the crime of murder.

proper offense, but make no mention of a dismissal made upon

application of the prosecution. That is not necessarily so.

(a) Rule 119; Section 11, Court Initiates Substitution

Upon the authority of said rules, the amendment could therefore be

made even as to substance in order that the proper charge may be made.

Rule 119 is the rule specifically governing the trial

stage where evidence is necessarily being presented, hence,

Under the second paragraph, the court can order the filing of
another information to charge the proper offense, provided, the accused

The claim that such amendment can only refer to matters of

the trial court is now in a better position to conclude that

would not be placed thereby in double jeopardy and that could only be

specification affecting the elements constituting the crime is not correct,

manifestly the accused cannot be convicted of the offense

true if the ofifense proved does not necessarily include or is not

for there is nothing in the rule to show that the nature of the amendment
should only be limited to matters of specification.

charged or of one that it necessarily includes.

necessarily included in the offense charged in the original information."

It has been the rule that under the first paragraph of

Section 14, Rule 110, the amendment of the information may

The change may also be made even if it may result in altering the

It would primarily be the function of the court to motu

nature of the charge so long as it can be done without prejudice to the

proprio order the dismissal of the case and direct the filing

rights of the defendant."

of the appropriate information.

65

which necessarily includes or is necessarily included in

We do not discount the possibility of either the

That is why such error need not be manifest or

the original charge, hence, substantial amendments to

prosecution or the defense initiating such dismissal and

evident, nor is it required that such nuances as offenses

the information after the plea has been taken cannot be

substitution at that stage, although, from a realistic point of

includible in the offense charged be taken into account.

made over the objection of the accused, for if the

original information would be withdrawn, the accused

view, that would be a rare situation.

It necessarily follows, therefore, that the prosecutor
This

provision,

therefore,

is

more

directly

could invoke double jeopardy.

and

can and should institute remedial measures for the dismissal

principally directed to the trial court to invest it with the

of the original information and the refiling of the correct

On the other hand, substitution requires or presupposes

requisite authority to direct by itself the dismissal and

one, otherwise he would be recreant to his duties.

that the new information involves a different offense

which does not include or is not necessarily included in

refiling of the informations therein contemplated.

In the subsequent case ofTeehankee, Jr. v. Madayag,
(b) Rule 110, Section 14, Prosecutor Initiates Substitution

et al., however, Section 14 of Rule 110 was clarified to

the original charge, hence, the accused cannot claim

double jeopardy.

mean as follows:
In determining, therefore, whether there should be an

Rule 110, on the other hand, provides the procedural

governance for the prosecution of offenses. Section 14

"It may accordingly be posited that both amendment

thereof, provides in its second (now third) paragraph the

and substitution of the information may be made before or

procedure and requisites for the substitution of a defective

after the defendant pleads, but they differ in the following

information by the correct one.

respects:

amendment under the first paragraph of Section 14, Rule

110, or a substitution of information under the second
paragraph thereof, the rule is that where the second
information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first
information, an amendment of the information is sufficient;

Although, just like Section 11 of Rule 119, the

a.

permissible stage for effecting that substitution is "at any

time before judgment," unlike the latter situation it is
sufficient that "it appears x x x that a mistake has been
made in charging the proper offense, x x x."

b.

The situation under said Section 14 contemplates a

Amendment may involve either formal or substantial

changes, while substitution necessarily involves a
substantial change from the original charge;

The foregoing pronouncements may be deemed to

information must be with leave of court as the original

have been accordingly modified by the amendment to

information has to be dismissed;

Section 14 in the sense that even before plea, the

prosecution may not amend the information to, downgrade

c.

Where the amendment is only as to form, there is no

Since no evidence has been presented at that stage,

retaking of the plea of the accused; in substitution of

the error would appear or be discoverable from a review of

information,

the records of the preliminary investigation.

entailed and the accused has to plead anew to the new

another

preliminary

investigation

is

the offense charged or drop any of the accused from the

information without leave of court.
Dismissal Only After New One is Filed
The second paragraph of Sec. 13 of the old Rule 110 was

information; and

amended in 1985 as follows: "The court shall dismiss the original

Of course, that fact may be perceived by the trial

tor who can initially determine the same.

substitution is in order."

effected without leave of court, but substitution of

need for another preliminary investigation and the

judge himself but, again, realistically it will be the prosecu-

which is distinct and different from that initially charged, a

Amendment before plea has been entered can be

longer time span, inclusive of the period from the filing of

the information up to and before trial.

otherwise, where the new information charges an offense

d.

An amended information refers to the same offense

charged in the original information or to an offense

66

complaint or information upon the filing of a new one charging

the proper offense in accordance with Rule 110, Sec. 11."

Whether the new charge for direct assault with less serious
Both rules were clarified so that the dismissal of the

physical injuries is by way of amendment or through a new

original complaint or information would be done only after a new

information is, immaterial since in both instances accused's

one has been filed.

former conviction would be a bar to a subsequent prosecution for

the second offense.

(a) that no judgment has as yet been rendered;

(b) the accused cannot be convicted of the offense charged or
of any other offense necessarily included therein; and

There is no double jeopardy if there is no identity of

This was the dictum laid down in the case of People v.

offenses.

substitution of the original one may be allowed:

(c) the accused would not be placed in double jeopardy.

Bonotan, and which doctrine was reiterated in the case of Tacas

If there is identity of offense, then the accused should be

Thus, an amendment of the information to change the

v. Cariaso. Thus:

crime charged from Homicide to the more serious offense of

convicted of the offense charged necessarily included in the

offense proven or of the offense proven necessarily included in
the offense charged.

"The charge of direct assault upon a person in authority with

physical injuries contained in the fiscal's information is not included in the
charge contained in the complaint of the chief of police, which is merely
that of less serious physical injuries unqualified by any allegation that

SUBSTITUTION APPLIES ONLY WHERE NO JUDGMENT

RENDERED

those injuries were inflicted upon the offended municipal councilor,

offense charged in the information.

after the petitioner had pleaded not guilty to the former is

dismissal of an existing one, spoken of and therein provided for

The converse is no less obvious, that is, the charge of direct assault

apply, only to an original case where no judgment has as yet

upon a person in authority with physical injuries as set out in the informa-

Much less does the said section apply to an appealed case.

Subject to Rule on Double Jeopardy

tion necessarily included the offense of less serious physical injuries

The reason is obvious and that is because the right to

quoted provision.

the complaint, the physical injuries inflicted are alleged to have required

For certainly, a change from homicide to murder is not a

medical assistance of a period of 14 days and incapacitated the offended

matter of form; it is one of substance with very serious

party from labor for the same period of time.

As proof that the offense charged in the information includes the

latter offense may, without question, be had under the information if the

consequence.

But can the amendment be justified under the second

paragraph?

other ingredients of the crime charged in said information are not proved.

proper offense after the dismissal of the original complaint or

information is subject to the rule on double jeopardy.

indubitably proscribed by the first paragraph of the above-

charged in the complaint, especially because in both the information and

offense charged in the complaint, conviction of the defendants of this

amend or to file a new complaint or information charging the

To amend the information so as to change the crime

charged from homicide to the more serious offense of murder

had been a mistake in charging the proper offense after the

been rendered.

To dismiss the homicide charged and file another charge

for murder will place the accused in double jeopardy.

admittedly a person in authority, while he was in the performance of his

official duties or on the occasion thereof, a qualification essential to the

The amendment or the filing of a new case where there

murder after the accused had pleaded not guilty, not allowed.

The answer is, No.

Hence, the defense of double jeopardy was well taken. The order of
dismissal was thus affirmed precisely on the very same constitutional

Where the original charge was that of less serious physical

injuries, for which the accused was convicted, the prosecution
cannot on appeal withdraw the case of physical injuries and file a

For the provision speaks not of amendment but of

ground relied upon in this petition."

dismissal of the information.

Limitation to Rule on Substitution
In other words, the provision contemplates the filing of a

case of direct assault.

There are thus limitations before a new information in

67

substituted not an amended information.

c.

In People u. Jaralba The Amendment consists of

But, it may be asked, can not the information for homicide

Consequently, although the offenses charged under the

description of wound from lacerated to stab wound to

against the petitioner be dismissed since no judgment has yet

three new informations necessarily include those charged under

conform to the evidence. There was no change of offense

been rendered and another information for murder be filed?

the original informations, the substitution of informations was

charged. No need to rearraign.

not a fatal error.

d.

The answer, again, is No.

acted with discernment is one of form as far as principal

A contrary ruling, would sacrifice substantial justice for

For the petitioner having pleaded not guilty to homicide, to

An Amendment to allege that co-accused who were minors

accused is concerned.

formal nuances on the altar of procedural technicalities.

dismiss the charge against him so as to file another charge for

murder will place him thereby in double jeopardy.

Furthermore, petitioners' right to speedy trial was never

The principle does not apply where the information for

e.

In People v. Padica, amendment as to correct name is

violated since the new informations were filed immediately after

merely a matter of form. Issue as to identity must be raised

the motion to withdraw the original information was granted.

during arraignment in a demurrer on the ground of lack of

jurisdiction over his person, otherwise there is estoppel or

homicide alleges "using superior strength" in which case, an

Duty of Judge to Render Decision

amendment to murder even if the prosecution have already

waiver.

presented two witnesses maybe allowed as this is a mere formal

Where a physical injury case has been filed before a

amendment.

Municipal Judge, but, after trial, he is of the opinion that a

The body of the information already charges the crime of
murder.
NO DOUBLE JEOPARDY
BEFORE ARRAIGNMENT

SEC. 15.
Place Where Action is to be Instituted.

frustrated murder was committed, he should decide the case on

the merits and not order the filing of an information in the CFI.

Improper Venue
WHERE

WITHDRAWAL

MADE

It is the duty of the judge to render the decision as the

evidence warrant under the information as filed for serious
physical injuries, and not dismiss the case on his idea or belief

In Galvez v. Court of Appeals (supra), the propriety of the

that there was evidence of intent to kill the intended victim.

withdrawal of the original information for homicide before

consideration of the fact that the motion to withdraw was filed

and granted before petitioners were arraigned, hence, before
they were placed in jeopardy.

precisely the evil sought to be prevented under the rule on

substitution, for the simple reason that no first jeopardy had as

proceedings,

improper

venue

is

lack

of

Venue in criminal cases is an essential element of

Such order is void for having been issued with grave abuse
of discretion amounting to excess of jurisdiction.

Unlike in a civil case where venue may be waived, this

could not be done in a criminal case because it is an element of

a.

In Teehankee v. Madayag An amendment from frustrated

jurisdiction.

murder to consummated murder due to supervening event

In criminal proceedings, the rule is that one can not be

of death is merely formal.

Thus, even if a substitution was made at such stage,

petitioners cannot validly claim double jeopardy, which is

criminal

jurisdiction.

arraignment, was upheld there having been no grave abuse of

discretion in granting the motion and, more importantly, in

In

jurisdiction.

held to answer for any crime committed by him except in the

b.

The difference in serial numbers of firearms in case of illegal

jurisdiction where it was committed.

possession is fatal.
Said rule is based on the legal provision which prescribes

yet attached.

the essential requisites of a good complaint or information, one

68

of which is the allegation that the crime was committed within

complaint was not committed in the province wherein the trial

preliminary investigation which is a function of the Executive

the jurisdiction of the court where the complaint or information

was had, and the accused was not arrested in that province and

Department and not the Judiciary."

is filed and that said court has authority to try it.

defendant had not fled therefrom, the Court of First Instance of

As was said in the case of United States v. Cunanan, the

jurisdiction of the Courts of First Instance of the Philippine

that province has no jurisdiction to impose sentence.

PLACES WHERE ACTION MAY BE INSTITUTED GENERAL

RULE

Islands, in criminal cases is limited to certain well-defined

In such cases, if the court has reasonable ground to

territory, so that they can not take jurisdiction of persons

believe that the crime has been committed, the accused should

charged with an offense alleged to have been committed outside

a.

be remanded to the court of proper jurisdiction for trial

of that limited territory.

Purpose of Rule
Judges of the court of the Court of First Instance of a
district court must exercise their jurisdiction within the territorial
limits of their provinces and no further.

In all criminal prosecutions the action shall be instituted and

tried in the Court of the Municipality or territory wherein the
crime was committed or where any one of the essential
ingredient of the offense took place.
Thus, subject to existing laws, the commission of an
offense is, triable only in the courts of the place where the

A criminal case should be instituted and tried in the

offense was allegedly committed.

municipality or province where the offense was committed or

any of its essential ingredients took place.

Jurisdiction or venue is determined by the allegations in

the information which are controlling.

If all the acts material and essential to the crime and

requisite of its consummation occurred in one municipality

This is a fundamental principle, the purpose being not to

or province, the court of that municipality or province has

compel the defendant to move to, and appear in a different court

sole jurisdiction to try the case.

from that of the province where the crime was committed, as it

When Place of Crime Not Alleged

would cause him great inconvenience in looking for his witnesses

Where the place of the commission of the offense was not

and other evidence in another place."

b.

In offenses committed on a railroad train, in an aircraft, or

in any other public or private vehicle while in the course of

specifically charged, the place may be shown by the evidence.

its trip in the court of any municipality or territory where

Power to Change Venue

such train, aircraft or other vehicle passed during such trip,

Thus, the insufficiency of the complaint charging adultery
without stating the place where the acts of adultery were
committed, or that the accused knew the woman was married at
the time of cohabitation, assigned as error as the conviction
thereon

amounted

to

conviction

without

informing

the

defendants of the nature and character of the offense, and

besides equivalent to a conviction without due process of law.

including the place of departure and arrival.

Where the convenience of the accused is opposed by that

of the prosecution, it is but logical that the court should have the
power

or

Where defendant was charged with attacking a postal

inconvenience lies, and to determine the most suitable place of

to

decide

where

the

balance

of

convenience

clerk in a moving train within the limits of Manila, it was

the trial according to the exigencies of truth and impartial

claimed that the Court of First Instance of Manila was

justice.

without jurisdiction, but as defendant offered no proof

against such jurisdiction, the lower court was justified in

Under the 1987 Constitution, the Supreme Court may

No such question having been raised before final judgment
in the trial court, but every ingredient of the crime having been

of justice.
c.

established in the evidence, there was no error committed upon

which to base a reversal of conviction.

"A petition for change of venue of the preliminary

investigation should however, be addressed to the Secretary of

When the record discloses that the crime as alleged in the

taking jurisdiction.

order a change of venue or place or trial to avoid a miscarriage

Justice who has control and supervision over the conduct of a

69

Where the crime for violation of P.D. No. 532 known as the
Anti-Piracy and Anti-Highway Robbery Law of 1974 was
committed aboard a jeepney, the criminal action may be
instituted and tried in the court of any municipality or
territory where the vehicle passed during the trip including

the place of departure and arrival.

The act of carrying away the thing stolen is not an

indispensable requisite of theft.

d.

another, in which case, the rule is settled that the court of either

In offenses committed on board a vessel in the course of its

voyage in the proper court of the first port of entry or of

g.

Where the offense charged was fully committed in the City

any municipality or territory through which the vessel

of Manila where the automobile was allegedly stolen from its

passed

parking place in Port Area the fact that said automobile was

during

such

voyage

subject

to

the

generally

accepted principles of the international law.

Where the crime was actually committed is immaterial

In transitory or continuing offenses, some acts material

and essential to the crime occur in one province and some in
province where any of the essential ingredients of the crime took
place has jurisdiction to try the case.

later found in Rizal City is not an essential ingredient of the

Offenses are continuing or transitory upon the theory that

crime but a mere circumstance which could add nothing to

there is a new commission, continuance or repetition of the

the nature of the offense or to its consummation.

offense wherever the defendant maybe found.

where the crime was committed while the vessel is in

transit.

Hence,

this

circumstance

cannot

be

made

determinative of the jurisdiction of the trial court over the

"In transit" simply means "on the way or passage"

In such a case, the complaint should alleged that the

It was, however, held in a case that where the
asportations of cigarettes commenced when they were

In a prosecution under Act No. 55, regulating the

transportation of animals on vessels, as amended by Act
No. 275, the information need not allege that the court was
sitting at a port where the animals were disembarked.

e.

The place where the action is to be instituted is subject to

existing laws "such as offenses which fall under the
exclusive jurisdiction of the Sandiganbayan which may be
instituted and tried only in the Sandiganbayan which is
located at Quezon City.

f.

In the earlier case of People v. Mercado, involving theft of

large catties, it was held that where the accused stole the
carabaos

in

Gapan,

Nueva

Ecija,

and

took them

to

Pampanga, where he was found, the crime is triable only in

Nueva Ecija and not in Pampanga.

The unlawful taking of a movable thing consummates

in the crime of theft.

in which the defendant may be found.

criminal action.

while passing from me place to another in the course of

transportation.

Such offenses may be tried by the Court of any jurisdiction

taken out of dark Airbase and continued when the goods

pushed through Valenzuela, Bulacan until they were seized
in Quezon City, the Courts in any of these places had
jurisdiction over the offense.

offense was committed within the jurisdiction of the court and

not at the place where it was originally committed.
The theory is that a person may be indicted in any
jurisdiction where the offense was in part committed, it being
understood that the first court taking cognizance of the case
excludes the others.

Transitory and Continuing Offenses

In this jurisdiction, where the strict common law rules
If all the acts material to the crime and requisite of the
consumption thereof occurred in one municipality or territory,
the court therein has the sole jurisdiction to try the case.

There are certain crimes in which some acts material and

essential to the crimes and requisite to their consummation
occur in one municipality or territory and some in another, in
which event, the court of either has jurisdiction to try the cases,
it being understood that the court taking cognizance of the case
excludes the other.

touching the finding of indictments have no controlling influence,

offenses committed partly in one province and partly in another,
that is to say, where some acts material and essential to the
crime and requisite to its consummation occur in one province
and some in another, are triable in either province, and the
appropriate courts in each province have concurrent jurisdiction
of such offenses, distinguished, as to estafa, accounts collected
in one place and to be paid over to principal in Manila; estafa
committed by insurance agent, premiums collected in Iloilo but
payable in Manila; estafa committed aboard a ship in Philippine
Waters.

These are the so-called transitory or continuing crimes.

The theory upon which a person accused of a transitory or

continuing offense may be tried in any jurisdiction within which

70

he is found is based upon the ground that there is a new

may be validly tried in any municipality or province where the

purpose, which means that two or more violations of the same

commission of the same offense in the jurisdiction where he is

offense was in part committed.

penal provision are united in one and the same intent leading to

found.

the perpetration of the same criminal purpose or aim.

In transitory or continuing offenses in which some acts

In such a case, the complaint should allege that the

material and essential to the crime and requisite to its

In adultery, the last unity does not exist because the

offense was committed within the jurisdiction of the court and

consummation occur in one province and some in another, the

culprits perpetrate the crime in every sexual intercourse and

not at the place where it was originally committed.

Court of either province has jurisdiction to try the case, it being

they need not do another or other adulterous act to consummate

understood that the first court taking cognizance of the case will

it.

(Defendant, as an enlisted seaman in the Bureau of

Navigation, accused of desertion in violation of Sec. 9 of Act No.
1980.)

exclude the others.

However, if all the acts material and essential to the crime
and requisite of its consummation occurred in one municipality

IN BIGAMY, PLACE WHERE FIRST MARRIAGE WAS

CELEBRATED IS IMMATERIAL

or territory, the court of that municipality or territory has the

TRANSITORY
DISTINGUISHED

AND

CONTINUING

OFFENSES

ingredients took place,

while

Bigamy being defined by Article 349 as the contracting "of

a second or subsequent marriage before the former marriage

A transitory offense is one where any of the essential

abduction,

sole jurisdiction to try the case.

such as estafa,

continuing

offense

ESSENTIAL
ADULTERY

REQUISITES

OF

CONTINUOUS

CRIME;

declared presumptively dead by means of a judgment rendered

malversation and
is

one

which

in the proper proceeding," it is self-evident that the place where

is

The rule is that crimes "committed partly in one province

consummated in one place, yet by reason of the nature of the

and partly in another, that is to say, where some acts material

offense, the violation of the law is deemed continuing.

province.

place to another.

act, intent and responsibility of the accused.

What is essential is that the first marriage be not legally

terminated,

persistent and continuing from one place to another or libel

where the libelous matter is published or circulated from one

the first marriage was celebrated is immaterial to the criminal

and essential to the crime, and requisites to its consummation,

occur in one province and some in another, are triable in either

Example of this, are where the deprivation of liberty is

has been legally dissolved, or before the absent spouse has been

actually

or

by

legal

presumption,

when

the

subsequent wedlock takes place; and it is upon the celebration

This means that to make the offense triable in more than
one province, the acts perpetrated in any one of them must be

of that subsequent marriage that bigamy is committed, not

before.

impelled by the same criminal purpose or aim.

The term "continuing" must, however, be understood in
the sense similar to that of "transitory" and is only intended as a
factor in determining the proper venue or jurisdiction for that
matter of the criminal action pursuant to Section 15, Rule 110.

This is so because persons charged with a transitory

offense may be tried in any jurisdiction where the offense was in
part committed to the exclusion of the other.

The continued existence of the first marriage is without

In People v. Zapata and Bondoc, it was held that adultery
is not a continuing offense.
To hold with the trial court that the celebration of the first
"The notion or concept of a continuous crime has its origin

marriage was an essential ingredient of the bigamy is to assume

in the juridical fiction favorable to the law transgressors and in

that when the petitioner married his first wife, he did so with

many a case, against the interest of society."

intent already to marry his second consort; and there is nothing

For it to exist, there should be plurality of acts performed

In other words, a person charged with a transitory crime

definite locus.

on record to warrant such assumption.

separately during a period of time; unity of penal provision

infringed upon or violation; and unity of criminal intent or

71

Since the second marriage of the accused occurred in

Davao outside the territorial jurisdiction of the respondent court,

c.

and in all criminal prosecutions, the actions must be instituted

C, entered into a contract at Manila, by virtue of which he

was obligated to render accounts to his principal in Manila.

and tried in the municipality or province where the offense or

any of its essential ingredients was committed, the Court of First

Under said contract, C collected certain moneys for his

Instance for the province of Iloilo is devoid of jurisdiction to take

principal in Cebu and failed to account for same to his

cognizance of the crime charged.

principal in Manila.

Venue in Estafa
a.

A bicycle was purchased by the owner of a tobacco factory

in the municipality ofObando, in the province ofBulacan, to
be used by defendant, an employee, on condition that it was
to be returned to the owner of the factory at the termination
of his employment, in the municipality of Malabon, province
of Rizal.

in the municipality of Obando.

was made in Manila.

The place where the bills were written, signed, or dated

does not necessarily fix or determine the place where they were

d.

An agent who is entrusted with collecting payments on

there though by his contract, the premium collected were

of the crime took place.

One of the essential elements of estafa is damage or

prejudice to the offended party.

Where the respondent has its principal place of

business and office in Manila, the failure of petitioner
(accused) to remit the insurance premiums she collected

An undelivered bill or note is inoperative.

Estafa by Issuing a Bouncing Check

Until delivery, the contract is revocable. And the issuance
The general principles governing jurisdiction in cases of
estafa punishable under Article 315, paragraph 2(d) of the

Estafa is a continuing or transitory offense which may be

prosecuted at the place where any of the essential elements

What is of decisive importance is the delivery thereof the

consummation as an obligation.

payable at the office of the company in Manila, may be tried

Revised Penal Code have been defined in People v. Yabut, to wit:

b.

executed.

policies for an insurance company and who collects such a

against him was committed in that municipality, and the

determine the case.

The Place of Delivery of Check

offense of estafa committed, as the contract of employment

Defendant having failed to comply with his obligation

justice of the peace in Malabon had jurisdiction to hear and

However, if all the acts material and essential to the crime and
requisite of its consummation occurred in one municipality or province,

HELD: The court of Manila had jurisdiction over the

for estafa in the Court of First Instance of Iloilo or of Manila.

to the owner of the bicycle in Malabon, the crime charged

mitted.

such has the sole jurisdiction to try the case."

payment in Iloilo and appropriates the same to his own use

Defendant sold the bicycle to a third person who lived

The theory is that a person indicted with a transitory offense may

be validly tried in any jurisdiction where the offense was in part com-

"Estafa by postdating or issuing a bad check under Art. 315, par.

2(d) of the Revised Penal Code may be a transitory or continuing
offense.

as well as the delivery of the check must be to a person who

takes it as a holder, which means "(t)he payee or indorsee of a
bill or note, who is in possession of it, or the bearer thereof."

Delivery of the check signifies transfer of possession,

whether actual or constructive from one person to another with
intent to transfer title thereto.

Its basic elements of deceit and damage, may independently arise

The venue of the offense lies at the place where the check

in separate places.

was executed and delivered to the payee.

In the event of such occurrence, the institution of the criminal
action in either place is legally allowed. Section 14(a), Rule 110 of the
Revised Rules of Court provides: 'In all criminal prosecutions, the action
shall be instituted and tried in the court of the municipality or province

caused damage and prejudice to private respondent in

wherein the offense was committed or any one of the essential ingredients

Manila, the Regional Trial Court of Manila has jurisdiction.

thereof took place.

72

Where it was in Malolos, Bulacan where the checks were

uttered and delivered to complainant at which place, her
business and residence were also located, the criminal prosecution of estafa may be lodged therein.

The giving of the checks by the two private respondents in

Caloocan City to a messenger and part time employee cannot be

handed and delivered to the sales supervisor of SMC, Mr. Ruben

treated as valid delivery of the checks, because a mere

"messenger" or "part-time employee" is not an agent of
complainant.
The Place Where Obligation Was Constituted

The offense also appears to be continuing.

The two checks were deposited by SMC at the BPI, San
Fernando, Pampanga, where it maintained its accounts after

True, the offense is committed by the very fact of its

receiving these checks from its Guiguinto Sales Office which

performance and the Bouncing Checks Law penalizes not only

bank later on made the corresponding deductions from the

the fact of dishonor of a check but also the act of making or

account of SMC in the amounts covered by the dishonored

drawing and issuance of a bouncing check.

The place where the obligation was constituted is also a

checks upon receiving information that the checks so issued by

valid basis for criminal jurisdiction to attach in a prosecution for

the accused had been dishonored by the drawee bank at Santa

estafa.

Maria, Bulacan.

Where, the place of business of the offended party, is in

A case of estafa and violation of B.P. Big. 22 was filed

Malolos, Bulacan, from where the tire and gas purchases were

against the accused in Pampanga, the accused contested the

made by the two private respondents, payment thereof should

jurisdiction of the court.

be considered effected in Malolos, Bulacan."

The determinative factor (in determining venue) is the

place of the issuance of the check.

But it is also true that knowledge on the part of the maker

an essential ingredient of the offense is by itself a continuing

(I)f the undertaking is to deliver a determinate thing, the

moment the obligation was constituted.

The case, therefore, could have been filed also in Bulacan.

or drawer of the check of the insufficiency of his funds which is

The Supreme Court held:

payment shall be made wherever the thing might be at the

As Regards the Bouncing Check

Cornelio, who holds office in that municipality.

eventuality, whether the accused be within one territory or

"As regards the Estafa case: While the subject check was issued in
Guiguinto, Bulacan, it was not completely drawn thereat, but in San

another.

Fernando, Pampanga, where it was uttered and delivered.

Hence, jurisdiction to take cognizance of the offense also

The receipt by the two private respondents at Caloocan

City of the tires and gas supplies from Malolos, Bulacan, signifies
but the consummation of the contract between the parties.

It was the result of an obligation previously contracted at

Malolos, Bulacan.

Although the check was received by the SMC Supervisor at

Guiguinto, Bulacan, that was not the delivery in contemplation of law to
the payee, SMC.

Said supervisor was not the person who could take the check as a

The gravamen of the offense is knowingly issuing a

worthless check.

Since the instant case, it was in Malolos, Bulacan, where

the checks were uttered and delivered to complainant at which

The issuance as well as the delivery of the check must be to a

place, her business and residence were also located, the criminal

person who takes it as a holder, which means the payee or indorsee of

In a case, two checks were issued and signed by the

accused in connection with the beer purchases made by him on

KNOWLEDGE BY DRAWER OF INSUFFICIENCY AND

DISHONOR AS ESSENTIAL ELEMENTS FOR VIOLATION OF
B.P. BIG. 22

holder, that is, as a payee or indorsee thereof, with the intent to transfer
title thereto.

prosecution of estafa may be lodged therein.

lies in the ETC of Pampanga.

the bill or note, who is in possession of it, or the bearer thereof.

The element of deceit, therefore, took place in San Fernando,

Thus, a fundamental element is knowledge on the part of

the drawer of the insufficiency of funds or credit with the drawee
bank for the payment of such check in full upon presentment.

Pampanga, where the check was legally issued and delivered so that
jurisdiction could properly be laid upon the court in that locality."

various occasion at Guiguinto, Bulacan and which checks he

Another essential element is subsequent dishonor of the

check by the drawee bank for insufficiency of funds or credit or

73

would have been dishonored for the same reason had not the

In the crime of estafa, deceit and damage are essential

drawer, without any valid reason, ordered the bank to stop

elements of the offense and have to be established with

payment.

satisfactory proof to warrant conviction.

For violation of the Bouncing Checks Law, on the other

Violation of B.P. Big. 22 is a transitory offense. Knowledge

on the part of the maker or drawer of the check of the

There is no scintilla of evidence to show that jurisdiction

over the violation ofB.P. Big. 22 had been acquired.

hand, the elements of deceit and damage are neither essential

nor required.

On the contrary, all that the evidence shows is that

insufficiency of his funds is by itself a continuing eventuality,

whether the accused be within one territory or another.

are on a different plain.

complainant is a resident of Makati; that petitioner is a resident

Rather, the elements ofB.P. Big. 22 are:

of Caloocan City; that the principal place of business of the

alleged partnership is located in Malabon; that the drawee bank

Consequently, venue or jurisdiction lies either in Malabon

where the checks were delivered or in Kalookan where they were

(a) the making, drawing and issuance of any check to apply

to account or for value;

is likewise located in Malabon and that all the subject checks

were deposited for collection in Makati.

dishonored.

The court, however, clarified that knowledge by the maker

or drawer of the fact that he has no sufficient funds to cover the

(b) the maker, drawer or issuer knows at the time of

issuance that he does not have sufficient funds in or
credit with the drawee bank for the payment of such
check in full upon its presentment; and

check or of having sufficient funds is simultaneous to the

issuance of the instrument.

Where there is no evidence to show that at the time of

issue, accused was in Manila, there would be no basis in

issued, delivered, dishonored or knowledge of insufficiency of

funds

occurred

in

Manila,

which

are

esssential

elements

necessary for the Manila Court to acquire jurisdiction over the

(c) the check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would have
been dishonored for the same reason had not the
drawer, without valid reason, ordered the bank to stop
payment.

offense for violation of B.P. Big. 22.

Abduction
Abduction is a persistent and continuing offense.

upholding jurisdiction of the Manila Trial Court over the offense

for violation of B.P. Big. 22.

Verily, no proof has been offered that the checks were

Hence, it is incorrect for respondent People to conclude

that inasmuch as the Regional Trial Court of Manila acquired

Hence, it may be tried in the court of municipality or

THE CRIME OF ESTAFA AND VIOLATION OF B.P. BIG. 22

HAVE TO BE TREATED AS SEPARATE OFFENSES HAVING
DIFFERENT ELEMENTS

jurisdiction over the estafa case then it also acquired jurisdiction

province wherein the offense was committed or anywhere one of

over the violations ofB.P. Big. 22.

the essential ingredients thereof took place.

The mere fact that the court has jurisdiction over an estafa

The crime of estafa and the violation of B.P. Big. 22 have

The girl being taken with her consent from Manila to Pasig,

to be treated as separate offenses and therefore the essential

Rizal Province, both the judges of the Court of First Instance of

ingredients of each offense have to be established.

Manila and of Rizal have jurisdiction and are competent to take

case does not necessarily mean it has jurisdiction over the

bouncing checks case or violation of B.P. Big. 22 involving the

cognizance of the crime of abduction.

same check.
Thus, where the records clearly indicate that business
The crime of estafa and violation of B.P. Big. 22 have to be
treated as separate offenses having different elements and,
necessarily for a court to acquire jurisdiction each of the

dealings were conducted in a restaurant in Manila where sums of

money were given to petitioner, the lower court acquired
jurisdiction over the estafa case.

essential ingredients of each crime has to be satisfied.

The various charges for violation of B.P. Big. 22, however,

74

It is true that the abduction was commenced in Manila, but

it may well be said that it was consummated in Pasig.

Kidnapping

proceeding pending in the Court of First Instance of Iloilo

Jurisdiction over criminal cases cannot be conferred by

Where an information charges the offense of kidnapping

province.

consent.

for ransom with murder, the victim was kidnapped within Lucena

The gist of the offense charged is not the making of the

City and at that very moment, the intention becomes evident

Falsification of Private Document

that the accused wanted to detain him for ransom, the Court
thereat has jurisdiction to try the case of murder filed against
the accused, although the killing was committed outside the city
limits.

affidavit in Manila, but the intention to give false evidence in

Iloilo, by means of such affidavit.

The crime of falsification of a private document is

consummated at the time and place where the document is

Libel

falsified, whether the document is or is not thereafter put to the

improper or illegal use for which it was intended.

Where persons are kidnapped and detained in Bulacan,

The rules on venue on libel in Article 360 of the Revised

Penal Code as amended by R.A. No. 1289 and RJL No. 4363 may

then taken to Nueva Ecija, defendants may be tried and

Crime Within City Limits

be stated thus:

punished in Bulacan, where the crime was commenced and

consummated, though continued elsewhere.

In a case, defendant was fould guilty of homicide. Counsel for

a.

Whether the offended party is a public official or a private

person, the criminal action may be filed in the Regional Trial
Court of the province or city where the libelous article is
printed and first published.

b.

If the offended party is a private individual, the criminal

defense contended that the Court of First Instance of Manila, in which the

Kidnapping with serious illegal detention is a continuing

crime

where

the

deprivation

of

liberty

is

persistent

and

case was heard, had no jurisdiction as the offense was committed outside
the city limits.

continuing from one place to another.

Held: As the crime was committed within two and a half miles of

Estafa by Railroad Conductor

Where a railroad conductor collects one peso and twentytwo centavos from a passenger and issues a false ticket for a

action may also be filed in the Regional Trial Court of the

the city limits, the court had the necessary jurisdiction.

province where he actually resided at the time of the

commission of the offense.

The Court of First Instance of Manila has jurisdiction over a

crime of robbery committed upon a steamboat in the Bay of
Manila at a point two and a half miles beyond the city limits.
c.

shorter journey for which the charge is eighteen centavos, the

Manila at the time of the commission of the offense, the

Perjury

estafa is committed where his account was rendered and the

If the offended party is a public officer whose office is in

action may be filed in the Regional Trial Court of Manila.

stub of the false ticket was turned in.

The lower court oflloilo found that the crime charged
Under Article 29 of the General Compilation of Laws upon
Criminal Procedure, jurisdiction is vested in the court, where
accused made use of the document (stub of the ticket) alleged
to be false.

The fact that the Court of First Instance of Manila took

jurisdiction of the estafa because the place of its commission
was not clearly shown, is not an obstacle to the court declaring
itself without jurisdiction as soon as the lack of jurisdiction
appeared.

(perjury) in the information was completed in Manila, inasmuch

d.

If the offended party is a public officer holding office outside

as the affidavit upon which the charge of perjury rested was

of Manila, the action may be filed in the Court of First

subscribed and sworn to before a notary in the city, and

Instance of the province or city where he held office at the

sustained a demurrer, dismissing the case on ground of lack of

time of the commission of the offense.

jurisdiction.
For the guidance, of both the bench and the bar, the Court
It is immaterial where the affidavit was subscribed and
sworn, so long as it appears from the information that

finds it appropriate to reiterate its earlier pronouncement in the

case of Agbayani, to wit:

defendant, by means of such affidavit, swore to and knowingly

submitted false evidence, material to a point at issue in a judicial

75

In order to obviate controversies as to the venue of the criminal

action for written defamation, the complaint or information

should contain allegations as to whether, at the time the offense
was committed, the offended party was a public officer or a
private individual and where he was actually residing at that
time.

jurisdictional waters the court stated in certain cases, the comity

respect to which, as it is a violation of the penal law in force at

of nations is observed, as in Mali u. Keeper of the Common Jail,

the place of the commission of the crime, only the court

wherein it was said that disorders which disturb only the peace

established in the said place itself has competent jurisdiction, in

of the ship or those on board are to be dealt with exclusively by

the absence of an agreement under an international treaty.

the sovereignty of the home of the ship, but those which disturb
Whenever possible, the place where the written defamation was
printed and first published should likewise be alleged.

the public may be suppressed and the offenders punished by

proper authorities of the local jurisdiction.

That allegation would be a sine qua non if the circumstance as to

where the libel was printed and first published is used as the basis of the
venue of the action.

When the exact place where the crime was committed is

unknown and the strong presumption arises at the trial that it
was committed on board a ship navigating within the waters

It may not be easy at all times to discover to which of the

two jurisdictions a particular act of disorder belongs.

included in the territory of this Archipelago, the court competent

to try such a crime is that of the district and province at one of
whose ports the ship or vessel arrives.

CRIMES ON BOARD FOREIGN MERCHANT SHIPS WITHIN

TERRITORIAL LIMITS

Much will depend upon the attending circumstances of the

particular case, but all must concede that a felonious homicide is
a subject for local jurisdiction; and if the authorities are

There are two fundamental rules in International Law

regarding jurisdiction to punish crimes committed abroad foreign

proceeding with the case in the regular way the consul has no
right to interfere with it.

CRIMES COMMITTED OUTSIDE OF THE PHILIPPINES

PUNISHABLE UNDER ARTICLE 2 OF THE REVISED PENAL
CODE
ART. 2. Application of its provisions. Except as provided in the

merchant vessels:

treaties and laws of preferential application, the provisions of this Code

The offense of failing to provide suitable means for

The French rule, according to which such crimes should not

securing animals while transporting them on a ship from a

be prosecuted in the court of the country within which they are

foreign port to a port in the Philippine Islands, is within the

committed, unless their commission affects the peace and

jurisdiction of the courts of the Philippines when the forbidden

security of the territory; and

conditions existed during the time the ship was within territorial

shall be enforced not only within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone, but also outside of its
jurisdiction, against those who:

a.

Should commit an offense while on a Philippine ship or airship;

waters, regardless of the fact that the same conditions existed

The English rule, based on the territorial principle, followed
by the United States, according to which such crimes are in

when the ship sailed from the foreign port and while it was on

b.

Should forge or counterfeit any coin or currency note of the

Philippine Islands or obligations and securities issued by the Government

the high seas.

of the Philippine Islands;

general triable in the courts of the country within whose territory

Although the mere possession of a thing of prohibited use

they are committed.

Of these two rules, the last one obtains in this jurisdiction,

as the Philippines was then a territory of the United States.

Should be liable for acts connected with the introduction into

these islands of the obligations and securities mentioned in the preceding

ports, does not, as a general rule, constitute, a crime triable by

number;

the courts of this country, on account of such vessel being

considered as an extension of its own nationality, the same rule
does not apply when the article, the use of which is prohibited

In certain cases, the comity of nations is observed.

c.

in these islands, aboard a foreign vessel in transit, in any of their

d.

While being public officers or employees, should commit an

offense in the exercise of their functions; or

within the Philippine Islands, is landed from the vessel upon

Whether the courts of the Philippines have jurisdiction over
a crime (such as smoking of opium within our territorial limits)
committed

aboard

foreign

merchant

vessels

anchored

in

Philippine soil.

e.

Should commit any of the crimes against national security and

the law of nations, defined in Title One of Book Two of this Code.

In the present case, a can of opium was landed, thus

constituting an open violation of the laws of the land, with

76

While under Sec. 15(d) "other crimes committed outside of

the Philippines but punishable therein under article 2 of the

Intervention of the Offended Party in Criminal Action

Revised Penal Code shall be cognizable by the proper court in

which the charge is first filed."

The prime purpose of the criminal action is to punish the

Intervention of Offended Party

offender in order to deter him and others from committing the

same or similar offense, to isolate him from society, reform and

Where the crime is committed by a public officer in relation

Explaining the scope of the Rule and the meaning of

to his office and is classified as Grade 27 and higher, jurisdiction

offended party, the Court stated that under Section 5, Rule 110

is with the Sandiganbayan.

of the Rules, all criminal actions covered by a complaint or

WHEN PROCEEDINGS ARE CONDUCTED

PREMISES OF THE PENAL INSTITUTION

WITHIN

THE

for the resolution, reparation or indemnification of the private

control of the public prosecutor.

offended party ror the damage or injury he sustained by reason

of the delictual or felonious act of the accused.

Thus, even if the felonies or delictual acts of the accused

result in damage or injury to another, the civil action for the

case for robbery with homicide requested the transfer of the

recovery of civil liability based on the said criminal acts is

original court, the Regional Trial Court of Quezon City. Mario is a

life termer and had been ordered committed to the National
Bureau of Prisons in Muntinlupa.

impliedly instituted and the offended party has not waived the

Under Article 104 of the Revised Penal Code, the following

are the civil liabilities of the accused:

civil action, reserved the right to institute it separately or

instituted the civil action prior to the criminal action, the
prosecution of the action inclusive of the civil action remains
under the control and supervision of the public prosecutor.

Pursuant to Administrative Circular No. 2, dated December

2, 1976, and Administrative Circular No. 6, dated December 5,

On the other hand, the sole purpose of the civil action is

information shall be prosecuted under the direct supervision and

A sister of detention prisoner Mario, accused in a criminal

case from the Regional Trial Court at Calamba, Laguna to the

rehabilitate him or, in general, to maintain social order.

The prosecution of offenses is a public function.

ART. 104. What is included in civil liability. The civil liability

established in Articles 100, 101, 102 and 103 of this Code includes:
1.
2.
3.

Restitution;
Reparation of the damage caused;
Indemnification for consequential damages.

1977, he cannot be brought out of the penitentiary for

appearance or attendance in other criminal cases in any court
without authority from the Supreme Court.

When the offended party, through counsel, has asserted

Under Section 16, Rule 110 of the Rules of Criminal
Procedure, the offended party may intervene in the criminal

his right to intervene in the proceedings, it is error to consider

his appearance merely as a matter of tolerance.

action personally or by counsel, who will act as private

Said circulars also provide that judges in Metro Manila who
shall require the appearance or attendance of such prisoners as

prosecutor for the protection of his interests and in the interest

of the speedy and inexpensive administration of justice.

witness or as accused before their respective courts shall

conduct such proceedings within the premises of the penal
institution.

National Penitentiary.

inferred that while criminal actions as a rule are prosecuted

under the direction and control of the fiscal, however, an

A separate action for the purpose would only prove to be

offended party may intervene in the proceeding, personally or by

costly, burdensome and time-consuming for both parties and

attorney, especially in cases of offenses which cannot be

further delay the final disposition of the case.

prosecuted except at the instance of the offended party.

The Court resolved to grant Ms. Llanto's request but the

trial of the case shall be conducted within the premises of the

From Sections 5 and 16 of Rule 110, it can clearly be

The multiplicity of suits must be avoided.

The only exception to this rule is when the offended party

waives his right to civil action or expressly reserves his right to
institute it, in which case, he loses his right to intervene upon

With the implied institution of the civil action in the crimiSEC. 16.

nal action, the two actions are merged into one composite
proceeding, with the criminal action predominating the civil.

77

the theory that he is deemed to have lost his interest in its

prosecution.

And, in any event, whenever an offended party intervenes

public prosecutor for the recovery of the civil liability of the

in the prosecution of a criminal action, his intervention must

If there are offended parties, petitioner's contention that

always be subject to the direction and control of the prosecuting

no damages are to be recovered in the criminal action must be

official.

untenable.

accused.

Under Section 16, Rule 110 of the Revised Rules of

Criminal Procedure, the offended party may also be a private
be

individual whose person, right, house, liberty or property was

offended party may appear not only as a matter of tolerance on

Even in cases which do not involve any civil liability, an

performed not exclusively by fiscals or other public officers, but

actually or directly injured by the same punishable act or

the part of the court.

by private attorneys in cases where they are allowed to

omission of the accused, or that corporate entity which is

intervene as private prosecutors.

damaged or injured by the delictual acts complained of.

The

public

function

of

prosecuting

offenses

can

In this respect, the law makes no distinction between

cases that are public in nature and those that can only be
prosecuted at the instance of the offended party.

After all, in the performance of their professional duties,

Such party must be one who has a legal right; a sub-

lawyers are officers of the court and assume public and official

stantial interest in the subject matter of the action as will entitle

responsibilities.

him to recourse under the substantive law, to recourse if the evidence is sufficient or that he has the legal right to the demand

The Right to Notice of Offended Party

In either case, the law gives the offended party the right to

OFFENDED PARTIES FOR VIOLATION OF ANTI-GRAFT LAW

AND FALSIFICATION OF PUBLIC DOCUMENTS

and the accused will be protected by the satisfaction of his civil

liabilities.

intervene, personally or by counsel, and he is deprived of such

right only when he waives the civil action or reserves his right to
institute one.

The offended party may be the State or any of its

instrumentalities, including local governments or government-

Such interest must not be a mere expectancy, subordinate

or inconsequential.

owned or controlled corporations which, under substantive laws,

Where the private prosecution has asserted its right to
intervene in the proceedings, it is error to consider the

are entitled to restitution of their properties or funds, reparation,

or indemnification.

appearance of counsel merely as a matter of tolerance.

The offended party is entitled to be notified and heard on
motions filed in the criminal proceedings especially when there is
a conflict in the positions between the public prosecutor and of
the offended party.

The interest of the party must be personal; and not one

based on a desire to vindicate the constitutional right of some
third and unrelated party.

For instance, in malversation of public funds or property

under Article 217 of the Revised Penal Code, frauds under Article
213 of the Revised Penal Code, and violations of the Forestry
Code of the Philippines, P.D. No. 705, as amended, to mention a
few, the government is the offended party entitled to the civil

In the felony of falsification of public document, the

existence of any prejudice caused to third person or the intent to
cause damage, at the very least, becomes immaterial.

liabilities of the accused.

Offended Parties in Illegal Practice of Medicine
In an information for illegal practice of medicine a private
prosecutor was allowed to intervene.

The controlling consideration is the public character of a

For violations of Section 3(e) of Rep. Act No. 3019, any
party, including the government, may be the offended party if

the

violation

of the

public

faith

and

the

The offender does not, in any way, have civil liability to a

third person.

All the witnesses who testified before the fiscal are

information belongs to the class of harmful ones.

and

destruction of truth therein solemnly proclaimed.

such party sustains undue injury caused by the delictual acts of

the accused.

offended parties it appearing that the offense alleged in the

document

In such cases, the government is to be represented by the

78

WHEN MAY THE OFFENDED PARTY LOSE HIS RIGHT TO

INTERVENE IN THE PROSECUTION OF THE CASE

It was earlier held in a case for illegal possession of

firearms and violation of the Dangerous Drugs Law that: "It is

The presumption that he approved of the motion is not

the

axiomatic that the prosecution of a criminal case is the

enough, especially since we are dealing here with the liberty of a

prosecution of a criminal case, when he has waived the civil

responsibility of the government prosecutor and must always be

person who had a right at least to be notified of the move to

action or expressly reserved his right to institute the civil action

under his control.

prosecute him again.

An

offended

party

loses

right

to

intervene

in

arising from the offense.

This is true even if a private prosecutor is allowed to assist
The reason of the law in not permitting the offended party
to intervene in the prosecution of the offense if he has waived or

him and actually handles the examination of the witnesses and

the introduction of other evidence.

reserved his right to institute the civil action is that by such

action his interest in the criminal case has disappeared.

It was, however, held that the offended party has the right
The witnesses, even if they are the complaining witnesses,
cannot act for the prosecutor in the handling of the case.

Its prosecution becomes the sole function of the public

prosecutor.

no personality to move for its dismissal or revival as they are not

losses right to intervene. Where the offended party in a crimi-

to file a motion for reconsideration of the order considering the

information against petitioner as withdrawn even without the
conformity of the public prosecutor or to file motion for

Although they may ask for the filing of the case, they have

Reservation of right of civil damages; offended party

The fact that he was not so informed made the irregularity

even more serious."

reconsideration of a decision of the Supreme Court enjoining a

criminal prosecution.

even parties thereto nor do they represent the parties to the

action.

Legal Personality of Offended Party

nal case has expressly reserved his right to present an

independent civil action for damages arising from the offense
charged, he loses his right to intervene in the prosecution of the
criminal case.

Their only function is to testify.

In a criminal prosecution, the plaintiff is represented by

Filing of Separate Civil Action

Undoubtedly, an offended party loses his right to intervene

in the prosecution of a criminal case, not only when he has
waived his right to institute, but also when he has actually
instituted the civil action arising from the offense.

For by either of such actions his interest in the criminal

case has disappeared.

the government prosecutor, or one acting under his authority,

and by no one else."

While it is the SolGen that may bring or defend actions on

behalf of the Republic of the Philippines or represent the people
or the state in criminal proceedings pending before the Supreme
Court or Court of Appeals, the private offended party retains the
right to bring a special civil action for certiorari in his own name
in criminal proceedings before the court of law.

It follows that a motion for revival of the cases filed by

prosecution witnesses (who never even testified) should have
been summarily dismissed by the trial judge.

It follows that the offended party has legal personality to

file a motion for reconsideration of an order of dismissal.
The case was distinguished from Caes v. Intermediate

The mere fact that the government prosecutor was

furnished a copy of the motion and he did not interpose any

Appellate Court, which is a violation of the dangerous drugs law

where there is no immediate and direct offended party.

objection was not enough to justify the action of these witnesses.

Moreover, if the court, independently of the appeal of the

accused, has jurisdiction, within fifteen days from the date of the

The Right to File Motion for Revival

The prosecutor should have initiated the motion himself if

he thought it proper.

judgment, to allow the appeal of the offended party, it also has

jurisdiction to pass upon the motion for reconsideration filed by
the private prosecution in connection with the civil liability of the

79

accused.

The institution of, or the reservation of the right to

d.

file, any of said civil actions separately waives the others.

The rule also incorporated Circular 57-97 on the filing of

actions for violation of Batas Pambansa Big. 22 mandating
the inclusion of the corresponding civil action for which the
filing fee shall be paid based on the amount of the check

This is no longer provided for.

involved.

The reservation and waiver referred to refers only to

In other cases, no filing fees shall be required for

the civil action for the recovery of civil liability arising from

actual damages.

the offense charged.

RULE 111
PROSECUTION OF CIVIL ACTION

History of Amendment

This does not include recovery of civil liability under

Articles 32, 33, 34 and 2176 of the Civil Code of the

SECTION 1.

Philippines arising from the same act or omission which may

Institution of criminal and civil actions

Changes in the Rule at a Glance
a.

The rule changes the 1985 rule as amended in 1988.

be prosecuted separately even without a reservation.

c.

The rulings in Shafer v. Judge, RTC of Olongapo City,

allowing a third-party complaint, and the ruling in Javier v.

No other rule in criminal procedure have been as hotly

debated upon as the rule on prosecutions of civil actions. The
rule have been amended four times.
a.

Juridical Basis of the Principle of Implied Institution of the

Civil Action with the Criminal Action

Intermediate Appellate Court, as well as Cabaero v. Cantos

allowing a counterclaim are no longer in force.

Dual Concept of Civil Liability

Under the 1985 Rule, the action for recovery of civil

liability arising from crime including the civil liability under
Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines arising from the same act or omission are

Under the Revised Rules on Criminal Procedure, these

pleadings are no longer allowed.

punished by law (ex-delicto) and from quasi-delict.

deemed impliedly instituted with the criminal action unless

the offended party waives the civil action, reserves his right
to institute it separately, or institutes the civil action prior to

Any claim which could have been the subject thereof

may be litigated in a separate civil action.

the criminal action.

damages in favor of the accused.

reserves his right to institute it separately, or institutes the

civil action prior to the criminal action.

provisions of Article 2177, and of the pertinent provisions of

Chapter 2, Preliminary Title, on Human Relations, and of
Title XVIII on Human Relations, regulating damages.4

from the offense charged is deemed instituted with the

criminal unless the offended party waives the civil action

Civil obligations arising from the criminal offenses

shall be governed by the penal laws, subject to the

Thus, a court trying a criminal case cannot award

Under the present rule, only the civil liability arising

Under Article 1157 of the Civil Code of the Philippines,

obligations may arise, inter alia, from acts or omissions

The task of the trial court is limited to determining the

guilt of the accused and if proper, to determine his civil

Article 100 of the Revised Penal Code provides that

every person criminally liable shall also be civilly liable (ex-

liability.

delicto) while Article 2176 of the Civil Code provides that

b.

Under the former rule a waiver of any of three civil actions

extinguishes the others.

A criminal case is not the proper proceedings to

determine the private complainant's civil liability.

80

"whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the
damage done.

The same act or omission which gives rise to two

Code, or create an action for quasi-delict or culpa-contractual under

Articles 1902-1910 of the Civil Code."

Such fault or negligence, if there is no pre-existing

separate and distinct sources of civil liability may be

prosecuted separately and independently of each other,

contractual relation between the parties, is called a quasi-

subject only to the limitation that the satisfaction of either

The other differences pointed out between crimes and

delict and is governed by the provisions of this Chapter."

bars recovery of the other, on the principle that plaintiff

culpa aquiliana are:

cannot recover twice for the same act or omission.

The Code expressly provides that responsibility for the

1)

fault or negligence for quasi-delict is entirely separate and

That crimes affect public interest, while quasi-delicts

Otherwise stated, civil liability, although arising from

are only of private concern;

distinct from the civil liability arising from negligence under

the same act or omission, may not only be prosecuted

the Penal Code, subject only to the limitation that the

plaintiff cannot recover damages twice for the same act or

2)

omission of the defendant.

either in a criminal or civil action, but in a criminal and civil

That consequently, the Penal Code punishes or corrects

action.

the criminal act, while the Civil Code by means of

indemnification merely repairs the damage;

Briefly stated, the negligent act causing damages may

The procedural enforcement of these distinct civil

produce two kinds of civil liability on the part of the

liabilities, albeit based on the same act or omission, are

3)

offender, that is, civil liability arising from the crime under

That delicts are not as broad as quasi-delicts, because

likewise separate and distinct, subject only to the caveat

the former are punished only if there is a penal law

Article 100 of the Revised Penal Code, or create an action

under Article 2177 of the Civil Code that the offended party

clearly covering them, while the latter, quasi-delicts,

for quasi-delict or culpa extra-contractual under Articles

cannot recover damages under both types of civil liabilities.

include all acts in which any kind of fault or negligence

1902-1910 of the Civil Code.

intervenes.
c.

The distinct nature of the dual concept of the civil

Civil Liability Based on Crime

The plain inference is that the civil liability based on

liability was stressed in Diana v. Batangas Transportation

delict springs out of and is dependent upon facts which, if

Co., citing the earlier case of Barredo v. Garcia, in the

true, would constitute a crime.

following words:

The civil liability based on a crime, unless reserved, is

generally enforced in the criminal action, and was governed
by the Rules on Criminal Procedure, more particularly Rule

Such civil liability is a necessary consequence of

"These two cases involve two different remedies.

criminal responsibility, and is to be declared and enforced in

the criminal proceeding except where the injured party

As the Court aptly said: A quasi-delict or culpa aquiliana is a

reserves his right to avail himself of it in a distinct civil

separate legal institution under the Civil Code, with a substantivity

action.

all its own, and individuality that is entirely apart and independent

111 on the prosecution of civil actions, which provides that

when a criminal action is instituted the civil action for
recovery of civil liability arising from the offense charged is
impliedly instituted with the criminal action, unless the
offended party expressly waives the civil action or reserves
his right to institute it separately.

from a delict or crime.

b.

Modes of Enforcement

Civil liability under Article 2176 was then enforced

A distinction exists between the civil liability arising from a

crime

and

the

responsibility

for

quasi-delict

or

culpa

extra-

contractual.

The same negligent act causing damages may produce civil

separately by means of a civil action and is governed by the

The dual concept of civil liability, ex-delicto and quasidelicto,

has

thus

brought

enforcement.

about

dual

mode

Rules on civil actions.

of
Consequently, when a criminal action is filed, what
was deemed impliedly instituted thereunder was only the

liability arising from a crime under Article 100 of the Revised Penal

81

civil liability arising from or based on the crime.

namely, the punishment of the offender and indemnity to

f.

The Independent Civil Actions

the offended party, its dominant and primordial objective is

the punishment of the offender.

Thus, the accused may be held civilly liable in the

criminal action, if he is found to be criminally liable.

In 1949, the (new) Civil Code of the Philippines

introduced the so-called independent civil actions.

The civil action is merely incident and consequent to

the conviction of the accused, which may even be waived or

If the accused is acquitted, he cannot be held civilly

This is because criminal actions are primarily intended

The obvious reason, as stated in People u. Amistad is

to vindicate an outrage against the sovereignty of the State,

that the civil liability recoverable in the criminal action is

and to impose the corresponding penalty for the vindication

one solely dependent upon conviction, because said liability

of the disturbance to the social order caused by the

arises from the offense, since what was deemed impliedly

Thus, where the accused is acquitted in the criminal

the

civil

liability

that

is

Such civil action may proceed independently of the

evidence.

case, the interest of the State ends, and no civil liability

deemed

This has raised the question of whether or not a

arising from the crime charged could be imposed upon him.

extinguished with the extinction of the penal even with a

reservation to file a separate civil action for the cases

pronouncement that the fact from which the civil action

might proceed does not exist."

What the private offended party should do is to file a

separate civil action.

d.

distinct from the criminal action.

criminal action and shall require only a preponderance of

other.

also

may also constitute criminal offenses entirely separate and

accused is intended solely to indemnify the former.

of civil liability arising from the offense charged, and no

is

These articles allow the injured party to file a civil

action for damages in the cases mentioned therein which

offender; the action between the private person and the

instituted, unless reserved, was the civil action for recovery

This

These are Articles 32, 33, and 34.

the prosecution thereof reserved in a separate civil action.

liable in the criminal action.

Early Rulings

mentioned therein is necessary for the exercise of such

right.

The Supreme Court flip-flopped from one extreme to

the other.

In the early stages of criminal procedure, the policy

was to strictly adhere to the distinct and discrete nature of
the criminal from purely civil actions, and the civil liability

One school of thought is of the considered view that

e.

Original Rule, The 1940 Rules of Court

that is sought to be enforced thereunder.

which may be exercised by the injured party even without

The Rule was originally governed by Rule 107 of the

What is deemed impliedly instituted and governed by

based on other sources of obligation such as quasi-delict

may be enforced only in a purely civil action.

any reservation.

1940 Rules of Court which then provided that:

the rules on criminal procedure, unless reserved, was only

the civil liability arising from the crime, while civil liability

the provisions of the Civil Code are substantive in nature

A contrary rule is unconstitutional.

"When a criminal action is instituted the civil action for recovery of
civil liability arising from the offense charged is impliedly instituted
with the criminal action, unless the offended party expressly waives
the civil action or reserves his right to institute it separately. Thus,
what was deemed impliedly instituted unless there is a waiver or
reservation is the civil liability arising from the crime."

While the criminal action may have a dual purpose,

Thus, the criminal action as well as the civil action for

the recovery of the civil liability arising from a crime may
proceed simultaneously and independently of the other,
without any reservation subject only to the limitation that,

82

the injured party cannot recover twice for the same act or

extinction

omission as provided for in Article 2177 of the Civil Code.

proceeds from a declaration in a final judgment

g.

The Amendments

of

the

civil,

unless

the

extinction

that the fact from which the civil might arise did
The other school of thought is of the view that the

1)

not exist.

First Amendment

provisions of the new Civil Code or the exercise of the right

granted under the Civil Code is merely procedural which

In view of the provisions of the new Civil Code on the

may be regulated under the Rule-making power of the

so-called

Supreme Court.

independent

civil

actions,

the

rule

was

amended in 1964 by adding a new section, viz.

In other cases, the person entitled to the

civil action may institute it in the jurisdiction and in
the manner provided by law against the person
who may be liable for restitution of the thing and
reparation or indemnity for the damage suffered.

To simplify the proceedings and avoid conflicting

The reservation requirement for Other Civil Actions:

decisions, all civil actions for the recovery of damages

arising from the same act or omission should only be

The Supreme Court, however, declared Section 2 as

litigated in one proceeding.

SEC. 2. Independent civil action. In the cases provided for in

inoperative. Thus, in Mendoza v. Arrieta, quoting from

Articles 31, 32, 33, 34 and 2177 of the Civil Code of the

Garcia v. Florida, that:

Philippines, an independent civil action entirely separate and

The injured party must have to elect whether he

distinct from the criminal action, may be brought by the injured

chooses to prosecute his claim in the criminal action or in a

party during the pendency of the criminal case, provided the

"* * * the same negligent act causing damages may produce a

separate civil action either by a timely reservation or the

right is reserved as required in the preceding section. Such civil

civil liability arising from crime or create an action for quasi-

filing of the civil action prior to the institution of the criminal

action shall proceed independently of the criminal prosecution,

delict or culpa extra-contractual.

action.

and shall require only a preponderance of evidence.

The former is a violation of the criminal law, while the latter is a
SEC. 3. Other civil actions arising from offenses. In all cases

The gravity and complexity of the question is best

not included in the preceding section the following rules shall

exemplified by the four amendments of the Rule.

distinct and independent negligence, having always had its own

foundation and individuality.

be observed,
Some legal writers are of the view that in accordance with

The minutes of the proceedings from the Fernan to

the Davide, Jr., committee disclose the heat of the debate
and the numerous sessions not only of the Committee but
also by the Court en bane.

By no means can it be said that the issue had been

a.

Criminal and civil actions arising from the same offense

may be instituted separately, but after the criminal action has been commenced the civil action can not be
instituted until final judgment has been rendered in the
criminal action;
b.

finally laid to rest.

After a criminal action has been commenced, no

delayed, it is because of Rule 111. It took the court several

sessions before the present rule was reluctantly adopted,

and regardless of the result of the latter.

Hence; the proviso in Section 2 of Rule 111 with reference to x

x x Articles 32, 33 and 34 of the Civil Code is contrary to the
letter and spirit of the said articles, for these articles were
drafted x x a and are intended to constitute as exceptions to

prosecuted, and the same shall be suspended, in

the general rule stated in what is now Section 1 of Rule 111.

stage

it

may be

found,

until

final

judgment in the criminal proceeding has been ren-

The prouiso, which is procedural, may also be regarded as an

dered;

unauthorized amendment of substantive law, Articles 32,33 and

34 of the Civil Code, which do not provide for the reservation

which ended with a rule similar to the 1940 Rules of Court,

prior to the four amendments.

independently of the criminal proceeding for criminal negligence

civil action arising from the same offense can be

whatever

If the Revised Rule on Criminal Procedure have been

Article 31, the civil action based upon quasi-delict may proceed

c.

Extinction of the penal action does not carry with it

83

required in the proviso. x x x"

criminal action. The 1985 amendment did not live very

long.

In his concurring opinion in the above case, Mr. Justice

However, in view of Article 2177 of the said code which

Antonio Barredo further observed that inasmuch as

Articles 2176 and 2177 of the Civil Code create a civil

provides that the offended party may not recover twice

3.

for the same act or omission of the accused, and in line

Third Amendment

liability distinct and different from the civil action

arising from the offense of negligence under the
Revised Penal Code, no reservation, therefore, need be

with the policy of avoiding multiplicity of suits, these

In 1988, Rule 111 was amended for the third time.

made in the criminal case; that Section 2 of Rule 111 is

inoperative, "it being substantive in character and is
not

within

the

power of

the

Supreme

Court

to

promulgate; and even if it were not substantive but

adjective, it cannot stand because of its inconsistency
with Article 2177, an enactment of the legislature
superseding the Rules of 1940."

2.

It actually restored the 1964 amendment.

Second Amendment

objections were overruled.

In any event, the offended party was not precluded

from filing a civil action to recover damages arising
from quasi-delict before the institution of the criminal

The rule further clarified the civil actions that are

action, or from reserving his right to file such a

deemed impliedly instituted is not confined to civil

separate civil action, just as he is not precluded from

actions arising from a crime but also the civil actions to

filing a civil action for damages under Articles 32, 33

recover civil liability under Articles 32, 33, 34 and 2176

and 34 before the institution of the criminal action, or

of the Civil Code arising from the same act or omission

from reserving his right to file such a separate civil

of the accused unless the offended party waives the

action.

civil action, reserves his right to institute it separately,

Accordingly, the 1985 Rules on Criminal Procedure did

or institutes the civil action prior to the criminal action.

away with the need for RESERVATION in cases provided

It is only in those cases where the offended party has

not previously filed a civil action or has not reserved his

for in Articles 32, 33 and 34 of the Civil Code of the

Explaining the amendment, Justice Jose Y. Feria, then a

right to file a separate civil action that his action is

Philippines and instead recognized that "an independent

member and later chairman of the Revision of Rules of

deemed impliedly instituted with the criminal action.

civil action entirely separate and distinct from the

Court Committee elucidated:

criminal action, may be brought by the injured party

during the pendency of the criminal case.

While it was ruled in Abella u. Marave,u that a

"The 1988 amendment expands the scope of the civil action

reservation of the right to file an independent civil

which is deemed impliedly instituted with the criminal action

action is not necessary, such a reservation is necessary

unless waived, reserved or previously instituted x x x.

under the 1988 amendment.

Such a civil action includes not only recovery of

Without such reservation, the civil action is deemed

indemnity under the Revised Penal Code and damages

impliediv instituted with the criminal action, unless

Under the 1985 amendment, what is deemed impliedly

under Articles 32, 33, 34 of the Civil Code of the

previously waived or instituted.

instituted with the criminal action unless there is a

Philippines, but also damages under Article 2176 of the

reservation or a prior civil action filed is the civil action

said code. x x x"

Such civil action shall proceed independently of the

criminal

prosecution

and

shall

require

only

preponderance of evidence."

Such civil actions are not limited to those which arise

for the recovery of the civil liability arising from the

offense charged.

"from the offense charged."

Objections were raised to the inclusions in this Rule of
quasi-delicts under Article 2176 of the Civil Code of the

This is the civil action that may be reserved in the

Philippines.

In other words, the right of the injured party to sue

separately for the recovery of the civil liability whether

84

arising from crimes (ex delicto or from quasi delict

Rule 107 contemplates a case where the offended party

under Art. 2176 of the Civil Code must be reserved

The court, however, went further by limiting the civil

desires to press his right to demand indemnity from the

otherwise they will be deemed instituted with the

liability that is deemed instituted with the criminal only

accused in the criminal case which he may assert either

criminal action).

to the civil liability arising from the offense charged.

in the same criminal case or in a separate action.

This includes the right to recover damages against the

All decisions to the contrary are no longer controlling.

Under this rule, a waiver from failure to reserve does

employer pursuant to Article 2180 in relation to Article

The independent civil actions under Articles 32, 33, 34

not include a cause of action not arising from civil

2176 of the Civil Code.

and 2176 are no longer deemed or impliedly instituted

liability involved in the criminal case but from culpa

with the criminal action or considered as waived even if

contractual, such as a civil case is based on alleged

there is no reservation.

culpa contractual incurred by the Philippine Air Lines,

Elsewise stated, prior reservation is a condition sine

qua non before any of these independent civil actions
including

the

action

for

quasi-delict

against

Inc. because of its failure to carry safely the deceased

the

employer can be instituted and thereafter have a

The reservation applies only to the civil liability arising

continuous determination apart from or simultaneous

from the offense charged.

The criminal case involves the civil liability of the

with the criminal action.

The employer may no longer be held civilly liable for
4.

Fourth Amendment

passenger to his place of destination.

quasi delict in the criminal action as ruled in Maniago

accused, who bear no relation whatsoever with said

entity and are complete strangers to it.

(supra) and San Ildefonso lines (supra) and the pro hac
The Revised Rules on Criminal Procedure is a virtual
return to the 1940 Rules of Court (and the 1985
amendment) which deemed as instituted with the

vice decision in Rafael Reyes Trucking Corporation

The accused are complete strangers to the respondent

(supra), and all other similar cases, since quasi-delict is

company.

not deemed instituted with the criminal.

The latter is not in any way involved therein. Plaintiff is

criminal action only the civil liability arising from the

offense charged.

The civil liability is deemed instituted not merely

If at all, the only civil liability of the employer in the

concerned with the civil liability of the latter, regardless

criminal action would be his subsidiary liability under

of the civil liability of the accused in the criminal case.

the Revised Penal Code.

The failure, therefore, on the part of the plaintiff to

"impliedly" instituted with the institution of the criminal

action.

The rule has also done away with third party complaints

reserve her right to institute the civil action in the

and counterclaims in criminal actions.

criminal case cannot in any way be deemed as a waiver

on her part of the right to institute a separate civil

The amendment modified the recommendation of the

Committee on the Revision of the Rules of Court to

These claims must have to be ventilated in a separate

deem as impliedly instituted only the civil liability of the

civil action.

The fourth amendment is similar to the original rule in

Rule

The purpose of the Committee was to limit the civil

107

contractual liability, or on culpa aquiliana under Articles

1902 to 1910 to of the Civil Code.

accused from all sources of obligation arising from the

same act or omission.

action against the respondent company based on its

of

the

Rules

amendment.

liability to be instituted with the criminal action to that

of

Court

and

the

1985

The two actions are separate and distinct and should

not be confused one with the other.

Under Article 31 of the Civil Code: "When the civil

of the accused and not the employer.

85

action is based on an obligation not arising from the act

may be brought by the injured party and may proceed

or omission complained of as a felony, such civil action

simultaneously;

may proceed independently of the criminal proceedings

and regardless of the result of the latter."

In cases of negligence, the offended party has the choice

between an action to enforce civil liability arising from crime
under the Revised Penal Code and an action for quasi-delict

The civil liability is not extinguished where acquittal is

under the Civil Code.

based on reasonable doubt.

The Principle Allowing Separate Civil Actions noT Allowed for Violations of
BP Big. 22

It may further be noted that Article 31 is not among the

civil actions that are deemed impliedly instituted with

Two Separate Civil Liabilities from Same Act or Omission

the filing of the criminal.

The principle does not apply to violations of B.P. Big. 22

An act or omission causing damage to another may give

It may likewise be noted that in Corpus v. Page, the

rise to two separate liabilities on the part of the offender, i.e.,

court ruled that Article 33 did not contemplate reckless

imprudence or criminal legligence cases.

covers

crimes

committed

civil action.
civil liability ex delito, under Article 100 of the
Revised Penal Code, and

Corpus v. Page is not controlling and held that Article

also

Pambanss Big. 22 shall be deemed to include the corresponding

1)

However in Maceda v. Caro, the court observed ;hat

33

which provides that "The criminal action for violation of Batas

thru

criminal

negligence.

2)

independent civil liabilities, such as those

(a) not arising from an act or emission complained of as a

The Court explained that this rule was enacted to help

felony, e.g., culpa contractual or obligations arising

declog court dockets which are filled with B.P. Big. 22 cases as

from law under Article 32, of the Civil Code, intentional

creditors actually use the courts as collectors.

And, in Eicano v. Hill, the court ruled that the concept

torts under Articles 32 and 34, and culpa aquiliana

of quasi-delict includes intentional acts, i.e., acts or

under Article 2176 of the Civil Code; or

Because ordinarily no filing fee is charged in criminal cases

omissions punishable by law.

for actual damages, the payee uses the intimidating effect of a

(b) where the injured party is granted a right to file an

The foregoing concepts would allow more than one civil

No reservation to file such civil action separately shall be

allowed."

independent and distinct criminal action.

criminal charge to collect his credit gratis and some times, upon
being paid, the trial court is not even informed thereof

action to recover civil liability arising from the same act

or ommission.

Either of these two possible liabilities may be enforced

against

The only limitation is against double recovery.

the

offender

(separately

and

simultaneously)

subject, however, to the caveat under Article 2177 of the

The inclusion of the civil action in the criminal case is

expected to significantly lower the number of cases filed before
the courts for collection based on dishonored checks.

Civil Code that the attended party cannot recover damages

This is in effect the present rule.

twice for the same act or emission or under both causes.

However, a separate civil action based on subsidiary

The Principle of Simultaneous Civil Actions

cases.

liability cannot be instituted during the pendency of the

criminal case.

Instead of instituting two separate cases, one for criminal

Thus, civil liability arising from crime and civil liability

arising from Articles 32, 33, 34 and 2176 quasi-delict or contract

It is also expected to expedite the disposition of these

and another for civil, only a single suit shall be filed and tried.
Civil Actions in Cases of Negligence

are entirely separate and distinct from the criminal action that

It should be stressed that the policy laid down by the Rules

86

is to discourage the separate filing of the civil action.

violation of B.P. Big. 22 filed by the for the issuance of bouncing

for insufficiency or lack of funds.

checks in payment of the same obligation which deemed as

The Rules even prohibit the reservation of a separate civil
action, which means that one can no longer file a separate civil

included the civil action recovery of the sum of money sought to

be recovered in the civil action.

The issuance of worthless checks is prohibited because of its

deleterious effects on public interest and its effects transcend the private
interest of the parties directly involved in the transaction and touches the

case after the criminal complaint is filed in court.

Action Based on Compromise Agreement held as Different from Violation
of B.P. Big. 22

interest of the community at large.

The only instance when separate proceedings are allowed

is when the civil action is filed ahead of the criminal case.

In the present civil case, no such transcendental public interest

An action, however for collection based on violation of a

exists.

Memorandum Agreement entered into where parties also agreed

Even then, the Rules encourage the consolidation o the
civil and criminal cases.

to dismiss the criminal proceedings for violation of B.P. Big. 22

was held as not violative of the rule against forum shopping
because, there is no identity of parties, rights or causes of
action, sand relief sought. The Court stated:

We have previously observed that a separate civil action

for the purpose of recovering the amount of the dishonored
checks would only prove to be costly, burdensome and timeconsuming for both parties and would further delay the final
disposition of the case.

Right to Intervene in Estafa Cases

The fact, however, that the Rules do not allow the
reservation of civil actions in B.P. Big. 22 cases canot deprive
private complainant of the right to protect her interests in the

HERE, THE TWO CASES INVOLVED ARE THE INSTANT

CIVIL CASE FOR COLLECTION OF SUM OF MONEY WHERE
PETITIONER IS THE DEFENDANT, AND THE B.P. BIG. 22
CASES WHERE PETITIONER IS THE ACCUSED.

criminal action for estafa.

Nothing in the current or rules on B.P. Big. 22 vests the

jurisdiction of the corresponding civil case exclusively in the

Clearly, there is no identity of parties for in the criminal case, the

This multiplicity of suits must be avoided.

Court trying the B.P. Big. cases.

plaintiff is the State with Ligon only as a complaining witness. In the case
at bar, Ligon himself is the plaintiff.

In promulgating the Rules, the Court did not intend to

Where petitioners' rights may be fully adjudicated in the

proceedings before the trial court, resort to a separate action to

There is also a difference in the causes of action.

recover civil liability is clearly unwarranted.

leave the offended parties without any remedy to protect their

interests in estafa cases.

In the instant case, the cause of action is petitioner's breach of

In view of this special rule governing actions for violation

contract as embodied in the Memorandum of Agreement, while in the

criminal case, it is the violation of B.P. Big. 22.

ofB.P. Big. 22, Article 31 of the Civil Code cited by the trial court
will not apply to the case at bar.

The pendency of the civil action before the court trying the
criminal case bars the filing of another civil action in another

Private complainant's intervention in the prosecution of the

estafa and B.P. Big. 22 is justified not only for the prosecution
other interests, but also for the speedy and inexpensive

There is also a difference in reliefs sought because in the civil case,

administration of justice as mandated by the Constitution despite

what is sought is the enforcement of the terms in their Memorandum of

the necessary inclusion of the corresponding civil; action in the

Agreement, while in the criminal case, it is the punishment of the offense

proceedings for violation of BP 22 pending before the MTC.

committed against a public law.

court on the ground of litis pendentia.

As we explained in Go v. Dimagiba, civil liability differs from

The only limitation is that a recovery in one bars the other.

criminal liability.

Thus, the complaint for recovery of sum of money based

on a contractual debt filed in the Regional Trial Court was
dismissed because of the pendency of a criminal case for

On the other hand a separate civil action for failure to

What is punished in the latter is not the failure to pay an obligation
but the issuance of checks that subsequently bounced or were dishonored

87

comply with the obligations under the Trust Receipts was

allowed although the a criminal case for violation of the Trust

arising from the dredging contracts subject of the criminal

receipts law had already been filed.

action.

deemed abandoned."
Extent of Damages Awarded in Civil Liability Arising from Crimes

According to the Court:

However, the Court held that petitioner's counterclaim is

deemed abandoned by virtue of Section 4 of P.D. No. 1606, as

THE RIGHT TO FILE A SEPARATE COMPLAINT FOR A SUM

OF MONEY IS GOVERNED BY THE PROVISIONS OF
ARTICLE 31 OF THE CIVIL CODE, TO WIT:
"Article 31. When the civil action is based on an obligation not

amended.

The last paragraph of Section 4 of P.D. No. 1606, as

Attorney's fees may be awarded but only when a separate

civil action to recover civil liability has been filed or when

amended, provides that:

exemplary damages are awarded.

arising from the act or omission complained of as a felony, such civil

action may proceed independently of the criminal proceedings and
regardless of the result of the latter."

Civil liability arising from crime includes, moral damages,

exemplary damages and loss of earning capacity.

Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the

Life expectancy is included in award of damages.

recovery of civil liability shall at all times be simultaneously instituted

Where the complaint against petitioners was based on the

failure of the latter to comply with their obligation as spelled out
in the Trust Receipt executed by them.

the

The only civil liability that may thus be imposed in a

Sandiganbayan or the appropriate courts, the filing of the criminal action

criminal action is that arising from and consequent to the

being deemed to necessarily carry with it the filing of the civil action, and

criminal liability oi the accused on the principle that every person

with,

and

jointly

determined

in,

the

same

proceeding

by

no right to reserve the filing of such civil action separately from the criminal action shall be recognized:

This includes restitution, reparation of damages caused

This breach of obligation is separate and distinct from any

criminal liability for "misuse and/or misappropriation of goods or

Provided, however. That where the civil action had heretofore been

proceeds realized from the sale of goods, documents or

filed separately but judgment therein has not yet been rendered, and the

instruments released under trust receipts", punishable under

Section 13 of the Trust Receipts Law (P.D. No. 115) in relation to
Article 315(1), (b) of the Revised Penal Code.

Complementary thereto, are the subsidiary civil liability of

court, said civil action shall be transferred to the Sandiganbayan or the

innkeepers, tavern keepers and proprietor of establishments,

appropriate court, as the case may be, for consolidation and joint

employers, teachers, persons and corporations engaged in any

shall be deemed abandoned.

delicto, the civil action may proceed independently of the

The Court held that Petitioner's counterclaim in the civil

criminal proceedings instituted against petitioners regardless of

case pending with the Malabon trial court for the return of the

the result of the latter.

amount DPWH paid NIC is an action to recover civil liability ex

delicto.

case filed with the Malabon Trial Court, praying for the return of
its payment made to the Navotas Industrial Corporation (NIC)

Broader Concept of Civil Liability

(A law making the issuance of a bouncing check criminal) the

However, this action to recover civil liability ex delicto is by

lower court rejected the appearance of a private prosecutor on

operation of law included in the criminal cases filed with the

the ground that B.P. Big. 22 does not provide for any civil

Sandiganbayan.

liability or indemnity and, hence it is not a crime against

pending in the

Sandiganbayan lodged its own counterclaim to the collection

duties.

In Banal v. Tadeo, Jr., a case of violation of B.P. Big. 22,

The Sandiganbayan Rule: Prohibition against Separate Civil Action

Section 3(e) and (g) of R.A. No. 3019

kind of industry, for felonies committed by their servants, pupils,

workmen, apprentices, employees in the discharge of their

Being based on an obligation ex contractu and not ex

estafa thru falsification of public documents and for violation of

and indemnification of consequential damages.

criminal case is hereafter filed with the Sandiganbayan or the appropriate

determination with the criminal action, otherwise the separate civil action

Petitioner DPWH the offended party in a criminal case for

criminally liable is also civilly liable.

property but public order.

By mandate of R.A. No. 8249, the counterclaim filed earlier
in the separate civil action with the Malabon trial court "shall be

88

The Supreme Court, in setting aside the order, gave a

broader concept of the civil liability that may be recovered in a

criminal action. The Supreme Court said:
"GENERALLY, THE BASIS OF CIVIL LIABILITY ARISING
FROM CRIME IS THE FUNDAMENTAL POSTULATE OF OUR
LAW THAT EVERY MAN CRIMINALLY LIABLE IS ALSO
CIVILLY LIABLE."

criminal case, unless a waiver or the reservation of the civil

"EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR
NEGLIGENTLY CAUSES DAMAGE TO ANOTHER, SHALL
INDEMNIFY THE LATTER FOR THE SAME.
Regardless, therefore, of whether or not a special law so
provides, indemnification of the offended party may be had on
account of the damage, loss or injury directly suffered as a

Underlying this legal principle is the traditional theory that when a

person commits a crime, he offends two entities, namely:
(1)

(2)

the society in which he lives in or the political entity called the

State whose law he had violated; and
the individual member of that society whose person, right,
honor, chastity or property was actually or directly injured or
damaged by the same punishable act or omission, x x x."

consequence of the wrongful act of another.

The indemnity which a person is sentenced to pay forms

an integral part of the penalty imposed by law for the
commission of a crime.

action is made.
When Reservation May Be Made
The reservation of the right to institute the separate civil
action arising from the offenses charged shall be made before
the prosecution starts to present its evidence and under
circumstances

affording

the

offended

party

reasonable

opportunity to make such reservation.

The purpose of the rule requiring reservation is to prevent

the offended party from recovering damages twice for the same

Every crime gives rise to a penal or criminal action for the

act or omission.

punishment of the guilty party; and also to civil action for the
Viewing things pragmatically, we can readily see that what
gives rise to the civil liability is really the obligation and the

restitution of the thing, repair of the damage and indemnification

for the losses.

moral duty of everyone to repair or make whole the damage

caused to another by reason of his own act or omission, done
intentionally or negligently, whether or not the same be

about by the cases of Tactaquin v. Palileo, Manio v. Gaddi, where

Civil liability is however, improper in illegal possession of
firearms qualified by murder.
The civil liability arising from the death may be claimed

In other words, criminal liability will give rise to civil

damage or injury to another and is the direct and proximate
cause thereof.

either in a separate action or impliedly instituted with the

Effect of Failure to Allege Damages in Complaint or Information

the complaint of information is of no legal consequence.

Article 20 of the New Civil Code provides:

reservation, and held that the mere appearance of a private

prosecutor in the criminal case against the private respondents
did not necessarily constitute such intervention on the part of
the aggrieved party as could only import an intention on her part
of her right to file a separate civil action for damages because
the accused had pleaded guilty upon arraignment and was

liable.

liable, it is enough that the act or omission complained of is

damage to another.

the need to give the offended party in opportunity to make a

to press her claim for damages in said criminal case and waiver
Every person criminally liable for a felony is also civilly

punishable, regardless of whether or not it also causes material

sentenced.

The Supreme Court in ,he case of Reyes v. Diy, stressed

the civil action.

Such is not the case in criminal actions for, to be criminally

of the plea of guilty of the accused who was accordingly

criminal action for murder or homicide."

The fact that there is, no claim or allegation of damages in

Damage or injury to another is evidently the foundation of

despite the appearance of a private prosecutor, the offended

party was not able to present evidence on the damages because

punishable by law.

liability only if the same felonious act or omission results in

The proviso requiring that the reservation may be made

before the prosecution starts to present evidence was brought

immediately sentenced, there was no chance for the aggrieved

It has, therefore, been held that even if the complaint or

party to present evidence in support of her claim for damages

information is silent as to the damages or the intention to prove

and to enter i reservation in the record to file a separate civil

and claim them, the offender is still liable for them, and the

action

offended has the right to prove and claim for them in the

89

The Court held that the dismissal was improper and ruled thus:

Reservation Need not be Express but May Be Implied

informed thereof, then the actual filing of the civil action is even
far better than a compliance with the requirement of an express

While a reading of the afore-quoted provisions shows that

the offended party is required to make a reservation of his right
to institute a separate civil action, jurisprudence instructs that
such reservation may not necessarily be express but may be
implied which may be inferred not only from the acts of the
offended party but also from acts other than those of the latter.

In

the

Vintola

case,

the

fact

that

plaintiff

"TRUE, APPELLANTS, THROUGH PRIVATE PROSECUTORS,

WERE ALLOWED TO INTERVENE WHETHER PROPERLY
OR IMPROPERLY WE DO NOT DECIDE HERE IN THE
CRIMINAL ACTION AGAINST APPELLEE'S DRIVER, BUT IF
THAT AMOUNTED INFERENTIALLY TO SUBMITTING IN
SAID CASE THEIR CLAIM FOR CIVIL INDEMNITY, THE
CLAIM COULD HAVE BEEN ONLY AGAINST THE DRIVER
BUT NOT AGAINST APPELLEE WHO WAS NOT A PARTY
THEREIN.

private prosecutor, is of no moment.

As a matter of fact, however, inspite of appellee's statements to

the contrary in its brief, there is no showing in the record before Us that

Where a separate civil action to recover the civil liability of

the accused arising from the crime charged has been reserved,
the heirs of the deceased are precluded from recovering
damages in the criminal case against the accused, for they are
of the accused.

appellants made of record their claim for damages against the driver or
his employer; much less does it appear that they had attempted to prove

In ruling that the Estafa case is not a bar to the institution

the prosecution presented its evidence.

not entitled to recover damages twice for the same criminal act

actively

intervening in the prosecution of the criminal case through a

reservation that should be made by the offended party before

such damages.

The trial court erred in awarding to the heirs of the

deceased P30,000.00 as civil indemnity for his death despite
their reservation.

of a civil action for collection, this Court held that:

The failure of the court to make any pronouncement in its decision

"[I]T IS INACCURATE FOR THE VINTOLAS TO CLAIM THAT

THE JUDGMENT IN THE ESTAFA CASE HAD DECLARED
THAT THE FACTS FROM WHICH THE CIVIL ACTION MIGHT
ARISE, DID NOT EXIST, FOR IT WILL BE RECALLED THAT
THE DECISION OF ACQUITTAL EXPRESSLY DECLARED
THAT 'THE REMEDY OF THE BANK IS CIVIL AND NOT
CRIMINAL IN NATURE.'

concerning the civil liability of the driver and I or of his employer must
therefore be due to the fact that the criminal action did not involve at all
any claim for civil indemnity."

Effect of Reservation
Later, in Jarantilla, the Court ruled that the failure of the
or

It has been held that the prescription of action does not

unfavorable, as to the civil liability of the accused amounts to a

prescribe for the civil action that have been reserved in the
criminal action.

trial

court

to

make

any

pronouncement,

favorable

This amounts to a reservation of the civil action in IBAA's favor for

reservation of the right to have the civil liability litigated and

the Court would not have dwelt on a civil liability that it had intended to

determined in a separate action, for nowhere in the Rules of

extinguish by the same decision."

Court is it provided that if the court fails to determine the civil

liability, it becomes no longer enforceable.

In the Bernaldes case, plaintiffs spouses Nicasio Bernaldes,

Sr. and Perpetua Besas together with their minor son, Jovito,
filed a complaint for damages against defendant Bohol Land
Transportation Co. for the death of Jovito's brother Nicasio, Jr.
and for serious physical injuries obtained by Jovito when the bus
in which they were riding, fell off a deep precipice.

Note: Under Section 2, Rule 111 during the pendency of

the criminal action, the running of the period of prescription of
the civil action which cannot be instituted separately or whose

Nothing in the records at hand shows that private

proceeding shall be tolled.

respondent ever attempted to enforce its right to recover civil

liability during the prosecution of the criminal action against

Waiver of Civil Liability Arising from Crime

petitioners.
The civil liability arising from a crime may be waived.

Defendant bus company moved to dismiss the complaint

on the ground that in the criminal case earlier filed against its
bus driver, plaintiffs intervened through their counsel but did not
reserve therein their right to file a separate action for damages.

Thus, even if there was no reservation in the criminal case

and that the civil action was not filed before the filing of the
criminal action but before the prosecution presented evidence in
the criminal action, and the judge handling the criminal case was

90

No counterclaim, cross-claim or third-party complaint may

be filed by the accused in the criminal case, but any cause of
action which could have been the subject thereof may be

litigated in a separate civil action.

A court trying a criminal case cannot award damages in

favor of the accused.

The task of the trial court is limited to determining the

guilt of the accused and if proper, to determine his civil liability.

A criminal case is not the proper proceedings to determine

the private complainant's civil liability, if any.

the criminal case, to file any cause of action which could have

dredging contracts with the offended party obviously does not

been the subject thereof in a separate civil action, since the

fall under Articles 32, 33 or 34 (on Human Relations) of the Civil

accused is prohibited from setting up any counterclaim in the

Code. Neither does it fall under Article 2176 (on auasi-delict) of

civil aspect that is deemed instituted in the criminal case.

the Civil Code.

The accused is therefore forced to litigate separately his

counterclaim against the offended party.

separately from the criminal case.

If the accused does not file a separate civil action for
quasi-delict, the prescriptive period may set in since the period
continues to run until the civil action for quasi-delict is filed.

The Court ruled in Cabaero v. Hon. Cantos, that a court

trying a criminal case should limit itself to the criminal and civil
liability of the accused, thus:

Moreover, the accused, who is presumed innocent, has a

right to invoke Article 2177 of the Civil Code, in the same way
that the offended party can avail of this remedy which is

[THUS,] THE TRIAL COURT SHOULD CONFINE ITSELF TO

THE CRIMINAL ASPECT AND THE POSSIBLE CIVIL
LIABILITY OF THE ACCUSED ARISING OUT OF THE CRIME.

independent of the criminal action.

To disallow the accused from filing a separate civil action

for quasi-delict, while refusing to recognize his counterclaim in

The counterclaim (and cross-claim or third-party complaint, if any)

should be set aside or refused cognizance without prejudice to their filing
in separate proceedings at the proper time.

This

paragraph

addresses

the

lacuna

mentioned

in

Cabaero on the "absence of clear-cut rules governing the

prosecution ofimpliedly instituted civil action and the necessary

the criminal case, is to deny him due process of law, access to

the courts, and equal protection of the law.

Notably, the Court did not order the consolidation but

allowed the civil action to proceed separately, otherwise, it would
defeat the prohibition against a counterclaim.

consequences and implications thereof."

Limitation on Separate Civil Action by an Accused in the Sandiganbayan

The civil liability of petitioners for swindling respondent spouses

and for maliciously filing a baseless suit must be litigated in a
separate proceeding.
Separate Civil Action By the Accused
Thus, the accused may file a separate civil action based on
quasi-delict arising from the same incident and may proceed

A separate civil action for collection of sum of money filed

by the accused against the offended party while the criminal

The only other possibility is for the accused's civil action to

fall under Article 31 of the Civil Code which provides:
ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN
OBLIGATION NOT ARISING FROM THE ACT OR OMISSION
COMPLAINED OF AS A FELONY, SUCH CIVIL ACTION MAY
PROCEED INDEPENDENTLY OF THE CRIMINAL PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE
LATTER.
An example of a case falling under Article 31 is a civil
action to recover the proceeds of sale of goods covered by a
trust receipt.

Such civil action can proceed independently of the criminal

action for violation of the trust receipt law.

In such a case, the validity of the contract, on which the

civil action is based, is not at issue.

What is at issue is the violation of an obligation arising

from a valid contract -- the trust receipt.

case in the Sandiganbayan is pending cannot be consolidated

with the criminal case, for the Sandiganbayan has no jurisdiction
over collection cases, nor can it proceed independently of the
criminal cases filed with the Sandiganbayan.

However, when the civil action is based on a purported

contract that is assailed as illegal per se, as when the execution
of the contract is alleged to violate the Anti-Graft and Corrupt
Practices Act, Article 31 does not apply.

simultaneously and independently of the criminal case against

him as provided under section 1(6) which allows "the accused in

Under Section 3 of Rule 111, civil actions falling under

Articles 32, 33, 34 or 2176 may proceed independently and

The accused's collection case for unpaid services from its

91

In such a situation, the contract if proven illegal cannot

tracts can proceed independently of the criminal action.

Commencing with Pajarito v. Seneris68 followed by Ozoa v.

create any valid obligation that can be the basis of a cause of

action in a civil case.

Vda. de Madula69 and Catacutan v. Heirs of Kadusale,70 it is now

This calls then for the application of the second paragraph
of Section 2 of Rule 111 which states that "if the criminal action

Under Article 1409 of the Civil Code, a contract "whose

is filed after the said civil action has already been instituted, the

cause, object or purpose is contrary to law," or a contract that is

latter shall be suspended in whatever stage it may be found

"expressly prohibited or declared void by law," is void from the

before judgment on the merits."

settled that the subsidiary liability of the employer, including the

amounts thereof, may be determined in the same criminal
proceed ings and is reviewable either by writ of error or through
a petitior for review on certiorari on pure questions of law.

very beginning.

The appeal shall be governed by appeals in criminal cases,

Consequently, the civil case for collection pending in the

No party to such void contract can claim any right under

such contract or enforce any of its provisions.

Malabon

Trial

Court

must

be

suspended

until

after

the

termination of the criminal cases filed with the Sandiganbayan.

Under Section 3(g) of the Anti-Graft and Corrupt Practices

In contrast, where the civil action is based on a contract

Act, entering into a contract that is manifestly and grossly

that can remain valid even if its violation may constitute a crime,

disadvantageous to the government is "declared to be unlawful."

the civil action can proceed independently.

since this is but a continuation of the civil proceedings, the

period to be counted not from the promulgation of judgment but
from the notice of the order.

The principle was stressed in Yusay v. Adil,71 a case of less

serious physical injuries and damage to property thru reckless
imprudence, with the Supreme Court's statement that: "The
employer is in substance and effect, a party to the criminal case
against his employee, considering the subsidiary liability imposed

If the act of entering into the contract is assailed as a

crime in itself, then the issue of whether the contract is illegal

Thus, in estafa thru violation of the trust receipt law, the

upon him by law.'

violation of the trust receipt constitutes a crime.

must first be resolved before any civil action based on the

contract can proceed.

Basis of Employer's Subsidiary Liability

However, the trust receipt itself remains valid, allowing a
civil action based on the trust receipt to proceed independently

Only the Sandiganbayan has the jurisdiction to decide

of the criminal case.

subsidiary liability may be proceeded against, it is imperative

whether the act of entering into such contract is a crime, where

that then should be a criminal action whereby the employee's

the salary grade of one of the accused is Grade 27 or higher, as

in

Criminal

Cases

Nos.

16889-16900

filed

with

Retroactive Application of Amendment

the

Sandiganbayan.

Article 31 speaks of a civil action "based on an obligation

not arising from the act x x x complained of as a felony."

criminal negligence or delict and corresponding liability therefor

are proved.

It has been held although the incident and the actions

arising therefrom were instituted before the promulgation of the

If no criminal action was instituted, the employer's liability

1985 Rules on Criminal Procedure, its provisions which are

would not be predicated under Article 103 of the Revised Penal

procedural may apply retrospectively.

Code.

Subsidiary Liability

This clearly means that the obligation must arise from an

act not constituting a crime.

The judgment in the criminal action announcing the

employee to be civilly liable is conclusive on the employer not

To be treated differently is the subsidiary liability of the

Where, the act purporting to create the obligation is

It bears emphasis, however, that before the employer's

employer.

only as to the actuality of the liability but also as to its amount,

from which no appeal by the employer lies from the judgment of
conviction.

assailed as a crime in itself, no civil action based on such con-

92

The employer must be afforded due process, by holding a

hearing to determine his liability on the basis of the conditions
required by law, namely:
(a) the existence of an employer-employee relation ship;
(b) that the employer is engaged in some kind of agency
(c) that the employee is adjudged guilty of the wrongful act
and found to have committed the offense in the
discharge of his duties (not necessarily any offense he
may commit); and
(d) that said employee is insolvent.
Obligations arising from crimes are governed by Article
1161 of the Civil Code, which provides that said obligations are
governed by penal laws, subject to the provision ofArticle 2177
and the pertinent provisions of Chapter 2, Preliminary Title, on
Human Relations, and of Title XVIII of Book IV of the Civil Code.

Article 100 of the Revised Penal Code provides that every

person criminally liable for a felony is also civilly liable.

In default of the persons criminally liable, employers

engaged in any kind of industry shall be civilly liable for felonies
committed by their employees in the discharge of their duties.

Article 33 of the Civil Code provides specifically that in

cases of defamation, a civil action for damages, entirely separate
and distinct from the criminal action, may be brought by the
injured party.

93

Such civil action proceeds independently of the criminal

prosecution and requires only a preponderance of evidence.

Explaining how the foregoing amendment came about,

In Joaquin v. Aniceto, the Court held that Article 33

a)

in the complaint or information" filed in court, then "the

stated:

corresponding filing fees shall be paid by the offended party

upon the filing thereof in court for trial";

contemplates an action against the employee in his primary civil

"THE LAST TWO (2) PARAGRAPHS PRESCRIBE A RULE
DIFFERENT FROM THAT IN MANCHESTER, AND IN THE
1985 RULES ON CRIMINAL PROCEDURE.

liability.

when "the amount of damages, other than actual, is alleged

Justice Narvasa (later Chief Justice) in General v. Claravall,

b)

in any other case, however i.e., when the amount of

damages is not so alleged in the complaint or information

It does not apply to an action against the employer to enforce its

subsidiary civil liability, because such liability arises only after
conviction of the employee in the criminal case or when the
employee is adjudged guilty of the wrongful act in a criminal
action and found to have committed the offense in the discharge
of his duties.

instituted with the criminal action had to be paid first to the Clerk of the

and shall simply "constitute a first lien on the judgment,

Court where the criminal action was commenced, without regard to

except in an award for actual damages."

Any action brought against the employer based on its

Under the 1988 Rules, however, it is only when 'the amount of

subsidiary liability before the conviction of its employee is

damages, other than actual, is alleged in the complaint or information

premature.

Under the 1985 Rules, the filing fees for the civil action impliedly

whether the claim for such damages was set out in the information or not.

that the corresponding filing fees shall be paid by the offended party upon
the filing thereof in court for trial.

Filing Fees in Estafa cases

the civil action "to enforce civil liability against the accused by way of
moral,

nominal,

temperate

or

The ruling in General v. Claravall, especially the last

subparagraph above-quoted, was actually intended to apply to a
situation wherein either: (1) the judgment awards a claim not
specified in the pleading, or (2) the complainant expressly claims
moral, exemplary, temperate and/or nominal damages but has

In any other case i.e., when the amount of damages other than

Section 20 of Rule 141 Approved on September 14, 1999

filed in court, the corresponding filing fees need not be paid

exemplary

damages

shall

(merely)

not specified ANY amount at all, leaving the quantification

thereof entirely to the trial court's discretion and NOT to a
situation

where

the

litigant

specifies

some

amounts

or

provides that filing fees in estafa cases are also required where

constitute a first lien on the judgment except in an award for actual dam-

parameters for the awards being sought, even though the

the offended party fails to manifest within fifteen days following

ages."

different

the filing of the information that the civil liability arising from the
crime has been or would be separately prosecuted.

When the offended party seeks to enforce civil liability

against the accused by way of moral, nominal, temperate or
exemplary damages, the filing fees for such civil action as
judgment except in an award for actual damages.

the

complaint

or

information,

the

corresponding filing fees shall be paid by the offended party

upon the filing thereof in court for trial

not

separately or

To hold otherwise, would be to permit litigants to continue

availing of one more loophole in the rule on payment of filing

civil actions under Section 1, Rule 111 only when "the amount of

fees, and would not serve to attain the purpose of the revised

damages, other than actual, is alleged in the complaint or

Sec. 1 of Rule 111, which is "to discourage the gimmick of libel

information has thus been made manifest by the language of the

complainants of using the fiscal's office to include in the criminal

amendatory provisions."

information their claim for astronomical damages in multiple

millions of pesos without paying any filing fees."

For the guidance of all concerned when a civil action is

In cases wherein the amount of damages, other than

in

be

commencement of an action applicable to impliedly instituted

deemed instituted with the criminal action in accordance with

alleged

sought

doctrine, requiring payment of filing fees at the time of the

provided in these Rules shall constitute a first lien on the

is

of damages

The Court's plain intent to make the Manchester

Filing Fee as a Lien

actual,

types

individually quantified.

Section 1, Rule 111 of the Rules of Court because the

offended party has NOT waived the civil action, or reserved the
right to institute it separately, or instituted the civil action prior
to the criminal action the rule is as follows:

94

SEC. 2.
When Separate Civil Action is Suspended

Suspension of Civil Action Arising from Crimes

termination of the criminal cases filed with the Sandiganbayan.

where the Civil action does not also fall under Articles 32, 33, 34
and 2176 of the Civil Code.

Except for civil actions provided for in Articles 32, 33, 34

The suspension of the civil case for collection of sum of

and 2176 of the Civil Code, the civil action which has been

money (based on an obligation arising from contracts alleged to

In fine, a civil action may not be suspended under Rule

reserved cannot be instituted until final judgment has been

be a crime pending before the Sandiganbayan) will avoid the

111 where the action is not to enforce civil liability from the

possibility of conflicting decisions between the Sandiganbayan

crime charged.

rendered in the criminal action.

and the Malabon trial court on the validity of NIC's dredging

The action contemplated herein is a civil action arising

contracts.

Consolidation of Civil with Criminal Action Even if not Arising from Crime

from a crime.
If the Sandiganbayan declares the dredging contracts

May consolidation of civil actions with the criminal action

If reserved or filed separately and a criminal case is filed,

illegal and void ab initio, and such declaration becomes final,

be allowed where the civil action is not to enforce civil liability

it has to be suspended to await final judgment in the criminal

then NIC's civil case for collection of sum of money will have no

arising from a crime?

action.

legal leg to stand on.

In Naguiat v. Intermediate Appellate Court, the petitioner

It may, however, be consolidated upon application with the

court trying the criminal action.

dredging

filed a complaint for specific performance with damages to

contracts valid, then NIC's collection case before the Malabon

compel the respondent to deliver to him certificates of title

trial court can then proceed to trial.

covering their lots which he had already paid for under a

However,

if

the

Sandiganbayan

finds

the

contract to sell.
Article 31 speaks of a civil action "based on an obligation
not arising from the act x x x complained of as a felony."
No suspension if civil action does not arise from Crime

A criminal action was likewise filed against the respondent

for violation of P.D. No. 957 regulating the sale of subdivision,

This clearly means that the obligation must arise from an

act not constituting a crime.

In Gandiongco u. Penaranda, the Supreme Court affirmed

etc., and providing penalties therefor.

Judge Penaranda's refusal to suspend the civil case for legal

separation and support with damages based on concubinage

Where, the act purporting to create the obligation is

despite the filing of a concubinage case with the municipal court.

Petitioner moved to consolidate the two (2) cases on the

basis of Rule 111, Section 3(a).

assailed as a crime in itself no civil action based on such

contracts can proceed independently of the criminal action.

His reason is that Section 2 of Rule 111 of the 1985 Rules

on Criminal Procedure refers to civil actions to enforce the civil

This calls then for the application of the second paragraph

liability arising from the offense charged.

of Section 2 of Rule 111 which states that "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 judgment on the merits."

The Supreme Court held that the civil actions that may be
An action for legal separation is not to recover civil liability

consolidated under Section 3(a), Rule 111 is one for civil liability

in the main, but is aimed at the conjugal rights of the spouses

arising from the criminal offense or of ex-delicto of which the

and their relations to each other within the contemplation of

civil action in this case is not one, but which is based on the

Articles 97 to 108 of the Civil Code.

contract to sell or a civil action arising ex-contracto, hence, Rule

Consequently, the civil case for collection pending in the

Malabon

Trial

Court

must

be

suspended

until

after

the

The trial court granted consolidation but the Court of

Appeals reversed the order.

111 is not applicable.

The principle applies even with the 1988 Amendments

95

The Supreme Court, however, justified the consolidation of

imposable accessory or other penalties, included in the civil

liability

therein

despite the erroneous procedure of petitioner in seeking a

violation of P.D. No. 957 under Section 1, Rule 31 of the Rules of

irrespective of kind, nature, value or amount thereof, no longer

remedy in filing a petition for certiorari instead of an appeal from

Court as interpreted in Canos v. Peralta,* where the Court

applies since the civil

the erroneous order of the trial court dismissing the action on

sustained the order of a trial court to consolidate a civil action

(an action for the recovery of wage differential, overtime and

arising

from

such

offenses

or

predicated

The Court allowed the indemnity in the foregoing case

the action for specific performance with the criminal action for

action to be consolidated does not arise from the criminal

offense charged.

termination pay, plus damages) with a criminal action (for

The Court stressed that it is "loathe to deprive petitioners

violation of the Minimum Wage Law), it was held that:

The period of prescription of the civil action which cannot

"A COURT MAY ORDER SEVERAL ACTIONS PENDING

BEFORE IT TO BE TRIED TOGETHER WHERE THEY ARISE
FROM THE SAME ACT, EVENT OR TRANSACTION, INVOLVE
THE SAME OR LIKE ISSUES, AND DEPEND LARGELY OR
SUBSTANTIALLY ON THE SAME EVIDENCE, PROVIDED,
THAT THE COURT HAS JURISDICTION OVER THE CASES TO
BE CONSOLIDATED AND THAT A JOINT TRIAL WILL NOT
GIVE ONE PARTY AN UNDUE ADVANTAGE OR PREJUDICE
THE SUBSTANTIAL RIGHTS OF ANY OF THE PARTIES, X X
X"
The obvious purpose of the above rule is to avoid
multiplicity of suits, to guard against oppression and abuse, to

be

instituted

separately

or

whose

proceeding

has

been

crime that has not been reserved or when it is filed ahead of the

The civil action that may be reserved is the civil arising

However, the civil action based on delict may be extinThe civil arising from a quasi-delict is not suspended but
may proceed simultaneously.

The subsidiary liability may only be enforced after the final

private prosecutor in the criminal case, will be conducive to the

arising from the crime especially where the latter action had

early termination of the two (2) cases, and will redound to the

been expressly reserved.

Even if there is a finding in a final judgment that the act or

since this is the only civil liability that is deemed instituted with
the criminal action.

It is a fundamental postulate of our law that "every person

criminally liable for a felony is also civilly liable."

benefit and convenience of the parties; as well as to the speedy

The dismissal of the action based on culpa aquiliana is not
a bar to the enforcement of the subsidiary liability of the
Under this principle, civil actions under Articles 32, 33, 34

employer.

jurisdictional constraints.

Once there is a conviction for a felony, final in character,

the employer becomes subsidiarily liable if the commission of the
in

criminal

cases

which

is

And even if an accused is acquitted of the crime charged,

such will not necessarily extinguish the civil liability, unless the
court declares in a final judgment that the fact from which the

and 2176 may be consolidated with the criminal action subject to

jurisdiction

omission from which the civil liability may arise did not exist.

would only refer to the civil liability arising from the offense

does not operate as a bar to in action to enforce the civil liability

on

guished if there is a finding in a final judgment that the act or

omission from which the civil might arise did not exist, this

counsel may act as counsel for the plaintiff in the civil case and

rule

extinction of the civil.

from the crime.

However, prescription of the cause of action quasi-delicto

The

Effects of Judgment of Acquittal

Extinction of the penal action does not carry with it

The consolidation of two (2) cases where petitioner's

administration of justice.

judgment of conviction based solely on technicality."

criminal action.

judgment of conviction.

least expense and vexation to the parties litigants. * * *

of the indemnity to which they are entitled by law and a final

suspended shall not run, refer to the civil action arising from a

prevent delays, to clear congested dockets, to simplify the work

of the trial court; in short, the attainment of justice with the

the ground prescription since it is an action for quasi-delict.

crime was in the discharge of the duties of the employer.

civil might arise did not exist.

In the landmark case of Padilla v. Court of Appeals, the

Supreme Court en bane, thru Justice Hugo Gutierrez emphasized

determinable by the prescribed penalty regardless of other

that the court may award civil liability in the same proceedings

96

ever if the accused is acquitted.

Duty of Court to Award Civil Liability

pronouncement on the civil liability of the accused and the complainant could file a petition for mandamus to compel the trial

This was to be followed in People v Jalandoni, Maxima v.

Even

before

the

1985

amendments,

the

settled

Geroch, Vizconde u. IAC, People v. Ligon, and other cases, until

jurisprudence is that it is the duty of the trial judge to award civil

the doctrine found its way in the third paragraph of Section 2,

liability in favor of the offended party despite the acquittal of the

Rule 120 of the 1985 Rules on Criminal Procedure, which

accused unless the fact from which the civil might arise does not

provided that "in case of acquittal, unless there is a clear

exist.

showing that the act from which the civil liability might arise did
not exist, the judgment shall make a finding on the civil liability
of the accused in favor of the offended party."

court to include such civil liability in the judgment of acquittal.

Acquittal in a criminal case does not bar continuation of

the civil case connected therewith where:
1)

the acquittal is based on reasonable doubt;

2)

the decision contains a declaration that the liability of

the accused is not criminal but only civil; or

3)

the civil liability is not derived from or based on the

criminal act of which the accused is acquitted.

In a case, the trial judge in not having included civil

liability in the decision, stated that it cannot exercise discretion
alone in determining the liability upon the mere allegations, the

Under The Revised Rules on Criminal Procedure: "In case

same being evidentiary.

the judgment is of acquittal, it shall state whether the evidence

of the prosecution absolutely failed to prove the guilt of the

Considering, however, the fact that the trial court's atten-

accused or merely failed to prove his guilt beyond reasonable

tion was drawn to the existence of a lapsus in the decision, in

doubt.

Thus, the acquittal of the accused from the criminal charge

the motion for reconsideration filed by the complainant, within

will not necessarily extinguish the civil liability unless the Court

the reglementary period, and taking into account the petition to

declares in the judgment that the fact from which the civil

supply what had been omitted, the trial judge could have set the

liability might arise did not exist.

In either case, the judgment shall determine if the act or

omission from which the civil liability might arise did not exist."

There has been a change in the language of the rule.

Whereas the 1985 rule was more categorical in requiring

that "the judgment shall make a finding on the civil liability of

motion for reconsideration for hearing, in order to receive

evidence, as to the value of the properties admittedly stolen by

Similarly, "extinction of the penal action does not carry

the accused, or to the return of the goods, if it was still feasible.

with it the extinction of civil liability unless the extinction

In an identical case, where the lower court had failed to provide

proceeds from a declaration in a final judgment that the fact

for the corresponding civil liability, the Supreme Court ordered

from which the civil liability might arise did not exists."

the said case remanded to the court of origin, for the purpose of
determining the civil liability of the accused.

the accused in favor of the offended party," the present rule

simply states that "the judgment shall determine if the act or
omission from which the civil liability might arise did not exist."

In Caina v. People, however, the extinction of the liability

civil was inferred from a finding that there is no negligence even

The principle applies even in cases of acquittal, unless

there is a clear showing that the act from which the civil liability

if the acquittal is based on failure to prove guilt beyond

reasonable doubt.

might arise did not exist.

It seems fairly obvious, however, that despite the acquittal
of the accused, if the act or omission from which the civil liability
might arise do exist, when the acquittal is merely because of
failure to prove the guilt of the accused beyond reasonable doubt
then the court should award the civil liability in favor of the
offended party in the same criminal action.

Similarly, Sanchez v. Far East Bank and Trust Company,

The duty of the court to a award, civil liability inspite of
acquittal is compellable by mandamus.

held that recourse to appeal the civil aspect from a judgment of

acquittal may only be resorted if the nature of he court's
judgment fall under any of the three categories stated above, as

In Lontoc and Jarantilla, the court held that under the

present jurisprudential matters, where the trial court acquits the

reiterated in Salazar v. People (supra) otherwise, the extinction

of the penal extinguish the civil.

accused on reasonable doubt, it could very well make a

The civil is deemed instituted with the criminal here the

97

presence of any instances precluding the automatic institution of

the civil action together with the criminal complaint.

There being no delict, civil liability ex delicto is out of the

Under the Civil Code, when a person, claiming to be
injured by a criminal offense, charges another with the same, for

Thus, a separate civil action may no longer be prosecuted.

grounds to believe that a crime has been committed, or the

prosecuting

attorney

refuses

or

fails

to

institute

In Calalang v. Intermediate Appellate Court, where a civil

action for damages based on the crime of murder was held as

damages against the alleged offender.

the Supreme Court reiterated the case of People u. Velez, that

the dismissal of the information or the criminal action (upon
motion of the fiscal) does not affect the right of the offended

of Court.

The second instance is an acquittal based on reasonable

doubi on the guilt of the accused.

Such civil action may be supported by a preponderance of

evidence.

In this case, even if the guilt of the accused has not been
satisfactorily established, he is not exempt from civil liability

not extinguished by the dismissal of the criminal case by the

Fiscal for failure of the complaint to establish a prima facie case,

This is the situation contemplated in Rule 111 of the Rules

criminal

proceedings, the complainant may bring a civil action for

CIVIL ACTIONS BASED ON CRIME

must be based on grounds other than the delict complained of.

which no independent civil action is granted in this Code or any

special law, but the justice of the peace finds no reasonable

Principles Allowing- Separate Civil Action Despite Acquittal Even Without

Reservation

question, and the civil action, if any, which may be instituted

which may be proved by preponderance of evidence only

Upon the defendant's motion, the court may require the
plaintiff to file a bond to indemnify the defendant in case the
complaint should be found to be malicious.

This is the situation contemplated in Article 29 of the Civil

Code where the civil action for damages is "for the same act or

party to institute or continue the civil action already instituted

omission.

arising from the offense, because such dismissal or extinction of

If during the pendency of the civil action, an information

the penal action does not carry with it the extinction of the civil

should be presented by the prosecuting attorney, the civil action

action.

shall be suspended until the termination

of the criminal

proceedings.

Although the two actions have different purposes, the

matters discussed in the civil case are similar to those discussed
in the criminal case.

The reason most often given for this holding is that the
Kinds of Acquittal

two proceedings are not between the same parties.

However, the judgment in the criminal proceeding cannot

Different rules as to the competency of witnesses and
weight of evidence necessary to the findings in the two
proceedings also exist.

In a criminal action, the State must prove its case by

evidence which shows the guilt of the defendant beyond

In a criminal action, our law recognizes two kinds of

acquittal, with different effects on the civil liability of the
accused.

First is an acquittal on the ground that the accused is not

the author of the act or omission complained of.

be read in evidence in the civil action to establish any fact there

determined, even though both actions involve the same act or
omission.

The reason for this rule is that the parties are not the
same and secondarily, different rules of evidence are applicable.

reasonable doubt, while in a civil action it is sufficient for the

plaintiff to sustain his cause by preponderance of evidence only.
Therefore, the insufficiency of evidence to support a
murder charge does not imply that there is no sufficient evidence
to support the civil case based on the same alleged act.

This instance closes the door to civil liability, for a person

who has been found to be not the perpetrator of any act or
omission cannot and can never be held liable for such act or
omission.

98

Hence, notwithstanding herein petitioner's acquittal, the

Court of Appeals in determining whether Article 29 applied, was
not precluded from looking into the question of petitioner's
negligence or reckless imprudence.

Illustrative Case:

delict.
In

IN A PROSECUTION FOR ESTAFA OR SWINDLING

THROUGH FALSIFICATION OF A COMMERCIAL DOCUMENT,
THE CIVIL IS DEEMED INSTITUTED WITH THE CRIMINAL
IN THE ABSENCE OF ANY INSTANCES PRECLUDING THE
AUTOMATIC INSTITUTION OF THE CIVIL ACTION
TOGETHER WITH THE CRIMINAL COMPLAINT (THE
OFFENDED PARTY WAIVES THE CIVIL ACTION, RESERVES
THE RIGHT TO INSTITUTE IT SEPARATELY OR INSTITUTES
THE CIVIL ACTION PRIOR TO THE CRIMINAL ACTION).

criminal proceeding.

prosecution

for

estafa

or

swindling

through

This was the teaching ofElcano v. Hill, where it was

expressly held that the extinction of the civil liability referred to

instituted with the criminal where the in the absence of any

in par. (c), Sec. 2 of Rule 111 refers exclusively to civil liability

instances precluding the automatic institution of the civil action

arising from crime; whereas, the civil liability for the same act

together with the criminal complaint (the offended party waives

considered as a quasi-delict only and not as a crime is not

the civil action, reserves the right to institute it separately or

extinguished even by a declaration in the criminal case that the

institutes the civil action prior to the criminal action).

criminal act charged has not happened or has not been

committed by the accused. In other words, an acquittal based on

Respondent's right to damages was deemed prosecuted in the

falsification of a commercial document, the civil is deemed

the finding that the facts upon which civil liability did not exist,

Respondent's right to damages was deemed prosecuted in

the criminal proceeding.

bars the filing of an independent civil action if it is based on the

crime.

Thus, a separate civil action may no longer be prosecuted where

Thus, a separate civil action may no longer be prosecuted

the accused was acquitted on the ground that the accused has not

where the accused was acquitted on the ground that the accused

committed the crime Imputed to her.

Application of the rule was illustrated by Justice Relova in

has not committed the crime imputed to her.

Marcia v. Court of Appeals, as follows: "Otherwise stated, unless the

This refers to the Civil liability arising from the crime that was
deemed instituted with the criminal.

act from which the civil liability arises is declared to be non-existent in the
final judgment, the extinction of the criminal liability will not carry with it

Civil Actions Not Based on Crime Not Extinguished

the extinction of the civil liability.

Acquittal

COMPARE

Thus, if a person is charged with homicide and successfully pleaded

Where petitioner sought to enforce respondent's obligation to make

good the value of the checks in exchange for the cash he delivered to

self-defense, his acquittal by reason thereof will extinguish his civil

criminal

action

bars

the

civil

arising

accused did not commit the criminal acts imputed to him.

As earlier ruled by the Supreme Court, the civil liability

proceedings and regardless of the result of the other (under Article 31)

On the other hand, if his acquittal is, for instance, due to the fact

and its filing after the dismissal of the criminal case for estafa and maybe

that he was not sufficiently identified to be the assailant, a civil action for

prosecuted without violating the rule against forum shopping, since they

damages may be maintained. His acquittal is not due to non-existence of

are based on different causes of action, expressly allowed by law.

the crime from which civil liability might arise, but because he was not, in
the eyes of the court, sufficiently identified as the perpetrator.

that is deemed extinguished is the civil liability based on crime.

But not the civil liability based on sources of obligation

other than the criminal offense although arising from the same
act or omission.

The dismissal of the criminal case is not res judicata even if the
civil is alleged to arise from delict, since the nature of the cause of action

Where the court states that the evidence throws no light on the

is determined by the facts alleged in the complaint as constituting a cause

cause of fire and that it was an unfortunate accident for which the

of action.

accused cannot be held responsible, this declaration fits well into the
exception of the rule which exempts the accused from civil liability.

The second sentence of Section 3(b) before under the

1985 Rules provides that in other cases, the person entitled to
the action may institute it in the jurisdiction and in the manner

What Civil Action Is Extinguished

Likewise, in Albornoz v. Albornoz,

culpa criminal and does not include culpa aquiliana or quasi-

liability. He has not incurred any criminal liability.

respondent such civil action may proceed independently of the criminal

The rule of extinction was limited to civil actions based on

in

therefrom where the judgment of acquittal holds that the

33

it was the ruling that "where

provided by law against the person who may be liable for

the judgment in a criminal action contains an express declaration that the

restitution of the thing and reparation or indemnity for the

basis of claimant's action did not exist, the latter's action for civil liability

damage suffered.

is barred under Section l(d), Rule 107 of the Rules of Court."

99

The rule clearly contemplates the filing of a separate civil

action. Article 29 of the Civil Code expressly provides that when

each other, and a favorable and unfavorable judgment in either

Mendoza v. Arrieta, will not find application.

case cannot be considered as a bar to the other.

the accused in a criminal prosecution is acquitted on the ground

that his guilt has not been proved beyond reasonable doubt, a
civil action for damages for the same act or omission may be
instituted.

This provision clearly provides for a separate civil action

A private prosecutor may intervene in the criminal action

for restitution, reparation and indemnity for the damages

without waiving the right to file a separate civil action under

suffered by the offended party without reference to the source of

Articles 32, 33, 34 and 2176 regardless of the result of the

the obligation but was held to refer to Article 29 of the Civil Code

criminal action.

which provides that when the accused in a criminal prosecution

Such action requires only a preponderance of evidence.

is acquitted on the ground that his guilt has not been proved
On the issue of whether or not an action for damages

The civil liability therefor under Articles 32,33, 34 and

arising from a vehicular accident may plaintiff recover damages

2176 or those where the source of civil obligation is not based on

against the employer of the accused driver both in the criminal

the criminal offense is not affected by the result of the criminal

case (delict) and the civil case for damages based on quasi-

action.

delict, but not recover twice for the same act, the court wrote:

beyond reasonable doubt, a civil action for damages for the

same act or omission may be instituted.

A quasi-delict or culpa aquiliana is a separate legal

institution under the Civil Code, with a substantivity all its own,
and individuality that is entirely apart and independent from a

In other words, the extinction of the civil liability referred

"Consequently, a separate civil action for damages lies against the

to in par. (e) of Section 3, Rule 111 (1964 Rules), refers

offender in a criminal act, whether or not he is criminally prosecuted and

exclusively to civil liability founded on Article 100 of the Revised

Penal Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been
committed by the accused.

found guilty or acquitted, provided that the offended party is not allowed,
if he is actually charged also criminally, to recover damages on both sides,
and would be entitled in such eventuality only to the bigger award of the

negligent acts which may be punishable by law.

A distinction exists between the civil liability arising from a

crime and the responsibility for quasi-delict or culpa contractual.

two, assuming the awards made in the two cases vary."

The same negligence causing damages may produce civil

Extinction of Penal Does not Extinguish Civil Liability

liability arising from a crime under the Penal Code, or create an

action for quasi-delicto or culpa extra-contractual under the Civil

In Mendoza v. Arrieta, it was held that where the acquittal

Briefly stated, culpa aquiliana includes voluntary and

delict or crime.

Code.

was not based upon reasonable doubt, a civil action for damages
can no longer be instituted.

Therefore, the acquittal or conviction in the criminal case

is entirely irrelevant in the civil case.

It results, therefore, that the acquittal of Reginal Hill in the

It was clarified in Gula v. Dianila, that Mendoza v. Arrieta

criminal case has not extinguished his liability for quasi-delict,

was based on culpa criminal for which reason "we held the suit

hence that acquittal is not a bar to the instant action against

for damages barred."

him.

Effect of 1988 Amendment and The Revised Rules on Criminal Procedure

Given the 1988 amendments, where the accused is

Criminal Actions To Recover Civil Liability Arising From Delict and Civil
Actions Based on Quasi-Delict may Proceed Simultaneously

Thus, a civil action arising from the crime charged and a

civil action with the civil code provisions as the source of
obligation may proceed simultaneously and independently of

Since the cause of action of plaintiff-appellant is based on

acquitted on the ground that his guilt has not been established

culpa aquiliana and not culpa criminal thus precluding the

beyond reasonable doubt or that the obligation is purely civil

application of the exception in Sec. 3(c) of Rule 111 and the fact

without the court making a finding on the civil liability of the

that it can be inferred from the criminal case that accused was

accused in favor of the offended party, what would be the effect

acquitted on reasonable doubt because of dearth of evidence and

of such judgment on the civil aspect of the case. Will the

lack of veracity of the two principal witnesses, the doctrine in

foregoing rulings permitting the prosecution of a separate civil

100

action still apply?

SEC. 3.

prevent delays, clear congested dockets to simplify the work of

When Civil Action may Proceed Independently

the trial court, or in short, attain justice with the least expense
to

In Heirs of the Late Teodoro Guaring v. Court of Appeals,

the court wrote that Sec. 2(b), Rule 111 of the Rules of Criminal

The civil action which should be suspended after the

Procedure which provides that extinction of the penal action does

institution of the criminal action is that arising from delict and

not carry with it extinction of the civil, unless the extinction

not the civil action based on quasi-delict or culpa aquiliana.

proceeds from a declaration in a final judgment that the fact

from which the civil might arise did not exist" and that this rule
contemplates a civil action arising from a crime and not a civil
action arising from a quasi delict.

the

parties

consolidation,

litigant,

thereby

would

preventing

have
the

easily

sustained

unseeming,

if

a
not

ludicrous, spectacle of two (2) judges appreciating, according to

their

respective

orientation,

perception

and

perhaps

even

prejudice, the same facts differently, and thereafter rendering

conflicting decisions.

Parenthetically, "physical injuries" under Article 33 is used

in a generic sense.

A civil case for replevin may proceed independently of the

criminal cases for falsification and grave coercion.

The

court

underscored

the

statement

in

Tayag

v.

Alcantara, that the civil liability for the same act considered as a
quasi delict only and not as a crime is not extinguished even by

It

includes

consummated,

frustrated

and

attempted

homicide and death arising from delict which includes reckless

imprudence or quasi-delict.

a declaration in the criminal case that the criminal act charged

has not happened or has not been committed.

Further cited by the court to the same effect is Gula u.

Dianala.

While both cases are based on the same facts, the

quantum of proof required for holding the parties liable therein
differ.

Consolidation of Criminal and Civil Cases

Libel A criminal case for libel and a separate and
independent civil action to enforce the civil liability arising from
the libel may be consolidated for joint trial, where the two (2)

SEC. 4.

cases involve common or identical questions of fact and law, and

Effect of Death on Civil Actions

In Bunag v. Court of Appeals, a separate action for

would even have the same witnesses; and thus avoid multiplicity

Damages based on forcible abduction with rape was allowed

of suits, prevent delay, clear congested dockets, and save

despite prior dismissal of case by the Fiscal at the preliminary

unnecessary costs and expenses, and simplify the work of the

investigation stage.

trial court.

Death of Accused on Appeal

The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability

Jurisdiction of Court to Pass upon Motion for Reconsideration of Offended Party in Connection with Civil Liability

In fact Mckee v. IAC stressed the need for consolidation

arising from the delict.

of criminal and civil actions to prevent conflicting decisions.

Despite Appeal by Accused

In Torrijos v. Court of Appeals,' a case of estafa, where

The final decision of guilt in criminal action is not relevant

If the court, independently of the appeal of the accused,

to civil action based on quasi-delict.

has jurisdiction, within fifteen days from the date of the

judgment, to allow the appeal of the offended party, it also has
jurisdiction to pass upon the motion for reconsideration filed by

despite the death of the accused during the pendency of his

appeal, which thereby extinguished his criminal liability, the
appeal was allowed to proceed with respect to the issue of civil

There is no legal impediment against such consolidation.

liability of the accused (arising from a contract of purchase and

sale).

the private prosecution in connection with the civil liability of the

accused.

Section 1, Rule 31 of the Rules of Court which seeks to

avoid multiplicity of suits, guard against oppression and abuse,

101

(The rule was not observed in People v. Satorre, where the

case for Murder was dismissed in view of the death of the

appellant.)

extinguished by his death, but the civil liability remains.

"1. Death of the accused pending appeal of his conviction

However, in People u. Salcedo, where the accused in a

murder case died during appeal, the case was dropped with

extinguishes his criminal liability as well as the civil liability

The claim of the government for the civil liability survives

based thereon.

but only if the offense can be proved.

respect to his criminal liability only.

appellate

As opined by Justice Regalado, in this regard, the

This was followed by People v. Sendaydiego a case of

jurisdiction over the petitioner's possible civil liability for the

death of the accused prior to final judgment terminates his

malversation thru falsification, where it was held that despite the

money claims of the government arising from the alleged

criminal liability and only the civil liability directly arising

death of the accused, the Supreme Court can continue to

criminal acts complained of, in much the same way as when no

from and based solely on the offense committed, i.e., civil

exercise appellate jurisdiction over an accused's possible civil

criminal action had been filed. No separate civil action need be

liability ex in senso strictiore.

liability for the money claims of the claimants arising from

instituted.

The

Supreme

Court

continues

to

exercise

criminal acts complained of, as if no criminal case has been

2.

instituted against him, thus making applicable, in determining

his civil liability, Article 30 of the Civil Code.

Corollarily,

the

claim

for

civil

liability

survives

notwithstanding the death of accused, if the same may also

Thus, as every crime gives rise to a penal or criminal

be predicated on a source of obligation other than delict.

action for the punishment of the guilty party, and also to a civil
action for the restitution of the thing, repair of the damage and

When a separate civil action is brought to demand civil

indemnification for the losses whether the particular act or

Article 1157 of the Civil Code enumerates these other

liability arising from a criminal offense, and no criminal pro-

omission is done intentionally or negligently or whether or not

sources of obligation from which the civil liability may arise

ceedings are instituted during the pendency of the civil case,

punishable by law, subsequent decisions of the Supreme Court

as a result of the same act or omission:

preponderance of evidence shall likewise be sufficient to prove

held

the act complained of.)

extinguished by his death, his civil liability subsists.

that

while

the

criminal

liability

of

an

appellant

is

The Supreme Court further stated that Sendaydiego's

In such case, the heirs of the deceased appellant are

appeal will be resolved only for the purpose of showing his

substituted as parties in the criminal case and his estate shall

criminal liability which is the basis of the civil liability for which

answer for his civil liability.

3.

his estate would be liable.

pendency of an appeal extinguished his criminal liability, his civil

Law
Contracts;
Quasi-contracts; xx x; and
Quasi-delicts.

Where the civil liability survives, as explained in Number 2

above, an action for recovery therefor may be pursued but

ABANDOMENT
Though the death of an accused-appellant during the

a.
b.
c.
d.

OF

SENDAYDIEGO;

DEATH

OF

only by filing a separate civil action and subject to Section

ACCUSED PENDING APPEAL EXTINGUISH CIVIL LIABILITY

1, Rule 111 of the 1985 Rules on Criminal Procedure as

BASED ON CRIME

amended.

liability survives.

Extinction of criminal liability does not necessarily mean

that the civil liability is also extinguished.

People v. Bayotas, overruled People v. Sendaydiego, where

This separate civil action may be enforced either

it was held that despite the death of the accused during the

against the executor/administrator or the estate of the

pendency of the appeal, the proceedings shall continue for the

accused depending on the source of obligation upon which

purpose of determining his civil liability arising from the crime.

the same is based as explained above.

In People v. Navoa, and in People v. Sendaydiego, the

Supreme Court ruled that only the criminal liability (including the
fine, which is pecuniary, but not civil) of the accused is

The Supreme Court en bane held in Bayotas (which is a

case of rape) that:

4.

Finally, the private party need not fear a forfeiture of his

right to file this separate civil action by prescription, in

102

cases where during the prosecution of the criminal action

proposal was for the Court to continue in the same proceedings vith the

and prior to its extinction, the private offended party

other civil actions that were deemed impliedly instituted vith the criminal,

instituted together with the civil action.

despite the death of the accused. Since, however, he Revised Rules on

Criminal Procedure limited the civil liability leemed instituted with the

Section 7 limits a prejudicial question to a "previously

instituted civil action" in order to minimize possible abuses by

criminal action to the civil liability aris-ng from the offense, there is no

the subsequent filing of a civil action as an afterthought for the

In such case, the statute of limitations on the civil

more need for the proposal since with the death to the accused, the civil

purpose of suspending the criminal action.

liability is deemed interrupted during the pendency of the

liability arising from the offense is also extinguished. The rule was,

criminal case, conformably with the provisions of Article

1155 of the Civil Code, that should thereby avoid any
apprehension

on

possible

deprivation

of

right

by

prescription.

however, retained by the Court to apply to the separate civil actions under
Section 3 of the same Rule. This would, however, only apply if these

a.

The rule on precedence of the criminal action does not apply

when the civil action is a prejudicial question.1

actions are consolidated with the criminal. Otherwise, since these are
purely civil actions, the effects of death should be governed by the Rules
on Civil procedure.16

b.

Prejudicial question is an exception to precedence of

criminal case.

Thus the Supreme Court applying this set of rules to the

case at bench held that the death of the appellant extinguished

SEC. 5.

his criminal liability and the civil liability based solely on the act
complained

of,

i.e.,

rape.

Consequently,

the

appeal

Judgment in Civil Action not a Bar

was

dismissed."

Prejudicial Question, Defined: Elements of a Prejudicial Question

According to jurisprudence, a prejudicial question involves

a similar issue in a civil action which was pending when the

COMMENT:

criminal action was instituted or before the amendment, in a civil

Bayotas was reiterated in People v. Rosalijos,ll where
during the pendency of the appeal convicting the accused of
murder, the latter died, the court ordered the dismissal of the
criminal liability of accused and ordered the substitution of his
heirs as to the civil liability.

WHILE EVERY PERSON CRIMINALLY LIABLE IS ALSO

CIVILLY LIABLE, THE CONVERSE IS NOT TRUE.
EXTINCTION OF THE PENAL DOES NOT CARRY WITH IT
EXTINCTION OF THE CIVIL UNLESS THE EXTINCTION
PROCEEDS FROM A DECLARATION IN A FINAL JUDGMENT
THAT THE FACT FROM WHICH THE CIVIL MIGHT ARISE
DID NOT EXIST.

However, in light of Bayotas, the appeal was dismissed

both as to the criminal and civil aspects thereof.

ing of a separate civil action arising from the same act or

It is one based on a fact distinct and separate from the

crime but so intimately connected with it that it determines the
guilt or innocence of the accused, and for it to suspend the
criminal action, it must appear not only that said case involves
facts intimately related to those upon which the criminal

Similarly, a final judgment rendered in a civil action absolving the

prosecution would be based but also that in the resolution of the

defendant from the civil liability is no bar to a criminal action unless the

issue or issues raised in the civil case, the guilt or innocence of

civil is a prejudicial question which involves an issue similar or intimately

The ruling in Bayotas and its progeny which require the fil-

action filed after the institution of the criminal action.

related to the issue raised in the criminal, the resolution of which

the accused would necessarily be determined.

determines whether or not the criminal action may proceed.

omission where the accused dies during the pendency of the

The doctrine of prejudicial question comes into play

action was criticized since these civil actions are deemed

generally in a situation where civil and criminal actions are

impliedly instituted with the criminal action unless reserved

waived or a separate civil action was filed.

SEC. 6.
Suspension by Reason of Prejudicial Question

COMMENT ON THE NEW RULE

SEC. 7.
The original proposal of the Committee was to modify Bayotas. The

Elements of Prejudicial Question

103

pending and the issues involved in both cases are similar or so

closely-related that an issue must be pre-emptively resolved in
the civil case before the criminal action can proceed.
Thus, the existence of a prejudicial question in a civil case
is alleged in the criminal case to cause the suspension of the
latter pending final determination of the former.

Where the civil case is not based on a fact distinct and

that indeed the alleged prior deed of sale was a forgery and

do not involve the pivotal question of who planted the

spurious.

sugarcane and, therefore, are not determinative juris et de

jure of guilt or innocence in the Criminal Action.

separate from the estafa, as both actions arose from the same
fact or transaction, the former does not constitute ,a prejudicial

b.

question, for the determination of the criminal action.

CASES
a.

The pendency of an intestate proceeding will not constitute

a prejudicial action in a criminal case for Theft of standing

If as the Guanteros contend, they were the ones who

crops filed by a person claiming to have a valid contract of

did the planting, that is a matter of defense that may be

lease on the property from its legal owner against a person

interposed by them in the Criminal Action.

claiming co-ownership of the land leased whose claim is

An Action for Nullity of a Deed of Sale Based on the Ground

pending in an intestate proceeding."

that It is a Forgery and is Spurious is Prejudicial to a

It is not an issue that must be preemptively resolved

in the civil case before proceedings in the Criminal Action

Criminal Action for Estafa based on the Execution of said

Even if the Intestate Court should annul the project of

Sale

may be undertaken.

partition and uphold private respondent's ownership of the

lots herein, that would not be determinative of the criminal

For a civil case to be considered prejudicial to a

responsibility

criminal action as to cause the suspension of the criminal

Where the defense (as defendant) in the civil case of

the nullity and forgery of the alleged prior deed of sale in
favor of plaintiff in the civil case and complaining witness in
the criminal case is based on the very same facts which
would be necessarily determinative of the guilt or innocence
as accused in the criminal case, the civil case constitutes a
prejudicial question.

for

theft

of

the

d.

A civil action for accounting and recovery of sum of money

are not determinative of the innocence or guilt of petitioner
in the prosecution for seventy-five (75) counts of estafa

mortgagee.

which the criminal prosecution is based, but also that the

accused.

respondents

in good faith by virtue of a valid contract of lease with the

not only that the civil case involves the same facts upon

necessarily determinative of the guilt or innocence of the

private

standing sugar crop, which petitioner claims he has planted

action pending the determination of the civil, it must appear

resolution of the issue raised in said civil action would be

of

The issues in the civil case for accounting and

recovery of sums of money are not determinative of the

c.

Ejectment: Pendency of an ejectment case does not

innocence or guilt of the petitioner in the prosecution of the

constitute a prejudicial question to the charge of the theft

seventy-five (75) counts of estafa.

filed by alleged lessee against a person claiming co-ownership rights with the lessor, for illegal harvest of sugarcane

* * * the only question to be resolved in the criminal cases for estafa

is whether or not the petitioner's acts of receiving and collecting
monies from the customers in payment for goods purchased, and
failing to immediately account for and deliver the said collections
having deposited them in his own personal bank accounts constitute
estafa under Article 315(l-b) of the Revised Penal Code.

on land leased.

Pendency of action for damages based on illegal

possession of property not a prejudicial question to the
charge of theft filed by the alleged lessee against the

* * * a finding in the civil case for accounting and recovery of

a sum of money is not juris et de jure determinative of the

plaintiff in the damage suit.

innocence of the petitioner in the subsequent seventy-five (75)

criminal cases of estafa filed against him.

If the first alleged sale is void or fictitious, then there

would be no double sale and petitioner would be innocent of
the offense charged.

A conviction in the criminal case (if it were allowed to

proceed ahead) would be a gross injustice and would have
to be set aside if it were finally decided in the civil action

As the two cases are based on the same facts, and the
entitlement to damages being predicated on the unlawful
taking treated of in the Criminal Action, no necessity arises
for that civil case to be determined ahead of the Criminal
Action.

Stated differently, the issues raised in the civil cases

104

e.

A civil case for Annulment of Deed of Sale not prejudicial to

Criminal Case for Estafa Arising from Issuance of Rubber
Check."

At the time the acts complained of in CR No. 1423-1

were committed, the deed of sale sought to be later

annulled in CV No. 8769 was binding upon the parties

thereto, including the petitioners.

A Civil Case for the Collection of a Sum of Money Allegedly Embezzled is

not a Prejudicial Question to the Criminal Action arising from the same
Acts of Embezzlement

c.

Article 33 manifests that as between the civil and criminal

cases arising from the same fraudulent act, the doctrine of the prejudicial
question cannot be invoked as both cases may proceed independently of
each other, i.e., in the same way that the civil suit can be tried, so must

The two (2) essential elements for a prejudicial

Thus, as teller authorized to receive payments of electric bills from

her own use money collected from different consumers.

(a) the civil action involves an issue similar or intimately

related to the issue raised in the criminal action; and

When she refused to pay the amount defrauded, the cooperative

sued her for damages. Later, at the instance of the cooperative, several

(b) the resolution of such issue in the civil action

determines whether or not the criminal action may
proceed.

informations for estafa were filed against her before the municipal court.

As correctly observed by the appellate court, the issue

collection suit is a prejudicial question.

private

prejudicial character and should be resolved before the

criminal case for bigamy.

Likewise, a civil action involving title to property

to said property.

The reason is that in said cases the procedure in a

a. No prejudicial question exists.

what

A civil action involving the nullity of a second marriage is of

HELD:

315, No. 2(d) of the Revised Penal Code.

specifically,

a.

should first be decided before a criminal action for damages

in CR No. 1423-1 is whether or not the petitioners could be

found guilty under Batas Pambansa Big. 22 or under Article

When Action for Annulment of Marriage Prejudicial to Bigamy Case

After pleading not guilty to the estafa charges, Godofreda moved to

suspend the proceedings in the criminal case on the ground that the

More

the criminal prosecution run its course.

the electric cooperative's customers, Godofreda allegedly embezzled to

question to exist are:

respondents

complained of in CR No. 1423-1 is that the Checks issued by

petitioners in their favor were dishonored for lack of funds

decide, as for example, the issue of validity or nullity of the

The issue in the civil action is the cooperative's right to recover

The issue in the criminal case is whether her failure to account for

obligation to pay private respondents pursuant to the deed

of sale, continued to subsist.

marriage.

from Godofreda the amount allegedly embezzled by the latter.

upon due presentment to the drawee bank.

Undeniably, at the time of said dishonor, petitioners'

civil proceeding and not of the criminal case is more fitted to

her collections as a teller constitutes estafa under Article 315 of the

Revised Penal Code.

But in all such cases the prejudicial civil question

refers to a dispute of purely civil character but connected in
such manner to the crime on which the criminal case is
based and is determinative of the guilt or innocence of the

A finding in the civil case for or against Godofreda is not juris et

accused.

dejure determinative of her innocence or guilt in the estafa cases.

And because petitioners' checks were dishonored for

lack of funds, petitioners are answerable under the law for
the consequences of their said acts.

And even if CV No. 8769 were to be finally adjudged

to the effect that the said deed of sale should be annulled,
such declaration would be of no material importance in the
determination of the guilt or innocence of petitionersaccused in CR No. 1423-1.

A civil action filed by the husband involving the nullity

B.
MOREOVER ARTICLE 33 OF THE CIVIL CODE
EXPLICITLY STATES THAT IN CASE OF DEFAMATION,
FRAUD AND PHYSICAL INJURIES A CIVIL ACTION FOR
DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM THE
CRIMINAL ACTION, MAY BE BROUGHT BY THE INJURED
PARTY.
Such civil action shall proceed independently of the criminal
prosecution and shall require only a preponderance of evidence.

105

of a second marriage is of prejudicial character and should

be resolved before the criminal case for bigamy.

In such a case, the prejudicial civil question refers to a

dispute of purely civil character but connected in such
manner to the crime on which the criminal case is based
and is determinative of the guilt or innocence of the
accused.

The

rule

does

not,

however,

apply

where

the

complaint for annulment was filed by the wife. Thus:

bigamy case pending decision on the validity of the two

Domestic Relations Court a civil action for declaration of

marriages.

nullity of her marriage with Leonilo, contracted in 1978.

The Court held that the mere fact that there are actions
to annul the marriage entered into by the accused in a
bigamy case does not mean that "prejudicial questions"
are automatically raised in civil actions to warrant the
suspension of the criminal case.

"a) The filing, while the bigamy case is pending, of a civil

action by the woman in the second marriage for its
annulment by reason offeree and intimidation upon her
by the man, is not a bar or defense to the criminal

In order that the case of annulment of marriage be

considered a prejudicial question to the bigamy case
against the accused, it must be shown that the
accused's consent to such marriage must be the one
that was obtained by means of duress, force and
intimidation to show that his act in the second marriage
must be involuntary and cannot be the basis for his
conviction for the crime of bigamy.

action.

The civil action does not decide that he entered the

marriage against his will and consent, because the
complaint therein does not allege that he was the
victim of force and intimidation in the second marriage.

The situation in the second case is markedly different.

It was he who used the force or intimidation and he
may not use his own malfeasance to defeat the action
based on his criminal act."

b.

So also is an annulment of marriage filed by the first

wife not prejudicial to bigamy.

c.

accused with Bigamy for contracting a second marriage

The second wife, likewise, filed an annulment of her

marriage with the accused on the ground offeree,
threats,

and

intimidation

allegedly

accused

and

because

its

of

employed

allegedly

by

character.

Accused filed a third party complaint against the first

wife praying that his first marriage be declared null and

d)

Donato interposed the defense that his second marriage

was void since it was solemnized without a marriage
license and that force was employed by Paz to get
Leonilo's consent to the marriage.

Before the second marriage was solemnized, Leonilo

and Paz had lived together as husband and wife,

And it was the second spouse, not the accused who

filed the action for nullity on the ground of force,
threats and intimidation, x x x

Code.

Therefore, he who contracts a second marriage before

the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy.

bigamous

Leonilo was already married to Rosalinda.

without the benefit of wedlock for at least five years,

Parties to the marriage should not be permitted to

judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts and
only when the nullity the marriage is so declared can be
held as void, and so long as there is no such
declaration the presumption is that the marriage exists.

without first dissolving their marriage.

marriage, since she had no previous knowledge that

At the time petitioner was indicted for bigamy, the fact

that two marriage ceremonies have been contracted
appeared to be indisputable.

Assuming that the first marriage was null and void on

the ground alleged by the accused, that fact would not
be material to the outcome of the criminal case.

In Landicho v. Hon. Reloua, the first wife charged the

She alleged that she consented to entering into the

Donato v. Luna Leonilo was charged with bigamy in

the Court of First Instance.

void on the ground that his consent to the first

for which reason, the requisite marriage license was

dispensed with pursuant to Article 76 of the New Civil

Before the criminal case could be tried, Leonilo moved

to suspend the proceedings on the ground that the
annulment case raises a prejudicial question, which
must be determined before the criminal case can
proceed.

The trial court denied the motion to suspend the

proceedings, citing Landicho v. Relova.

The Supreme Court sustained the trial judge.

The issue before the Domestic Relations Court touching

upon

the

nullity

crime of bigamy.

marriage was obtained by means of threats, force, and

The information was based on the complaint of Paz.

intimidation, and moved for the suspension of the

Before Leonilo could be arraigned, Paz filed with the

106

of the

second

marriage

is

not

determinative of Leonilo's guilt or innocence in the

Furthermore, it was Paz, Leonilo's second wife, who

nullity of a previous marriage maybe invoked for purposes

second marriage is not per se an argument for the

filed the complaint for annulment of the Second

of remarriage on the basis solely of a final judgment

avoidance of criminal liability for bigamy.

marriage on the ground that her consent was obtained

declaring such marriage void.

through deceit.

Pertinently, Article 349 of the Revised Penal Code

So that in a case for concubinage, the accused need

criminalizes "any person who shall contract a second or

Leonilo cannot apply the rule on prejudicial question

not present a final judgment declaring his marriage void for

subsequent marriage before the former marriage has been

since a case for annulment of marriage can be

he can adduce evidence in the criminal case of the nullity of

legally dissolved, or before the absent spouse has been

considered a prejudicial question to the bigamy case

his marriage other than proof of a final judgment declaring

declared presumptively dead by means of a judgment

against the accused only if it is proved that Leonilo's

his marriage void.

rendered in the proper proceedings."

consent to such marriage was obtained by means of

duress in order to establish that his act in the
subsequent marriage was an involuntary one and as
such, the same cannot be the basis for conviction.

The Court, however, hastened to add that even if his

A plain reading of the law, therefore, would indicate

marriage is void from the beginning the subsequent

that the provision penalizes the mere act of contracting a

pronouncement that his marriage is void from the beginning

second or a subsequent marriage during the subsistence of

is not a defense, citing Landicho u. Relova, cited in Donate

a valid marriage.

Obviously, Leonilo merely raised the issue of prejudicial

v. Luna," holding that "so long as there is no such

question to evade the prosecution of the criminal case.

declaration (of nullity) the presumption is that the marriage

Prior to Leonilo's second marriage, he had been living

exists.

with Paz as husband and wife for more than five years

of bigamy had already been consummated.

without the benefit of marriage.

Therefore, he who contracts a second marriage before

the judicial declaration of nullity of the first marriage

Thus,

Leonilo's

averments

that

his

consent

was

assumes the risk of being prosecuted for bigamy.

entering a subsequent marriage is belied by the fact

that both he and Paz executed an affidavit which stated

is a second or subsequent marriage, and a subsequent

2)

to criminal prosecution for bigamy

marriage

without benefit of marriage for five years, one month

A declaration of the nullity of the second marriage on

and one day until their marital union was formally

the ground of psychological incapacity is of absolutely no

ratified by the second marriage and that it was Paz who

moment insofar as the State's penal laws are concerned.

As a second or subsequent marriage contracted during

the subsistence of petitioner's valid marriage to Villareyes,
petitioner's second marriage to Ancajas would be null and
void
to criminal prosecution for concubinage

Under Article 40 of the Family Code: "The absolute

is

null

and

void

on

the

ground

of

for bigamy is concerned.

The State's penal laws protecting the institution of

marriage are in recognition of the sacrosanct character of

eventually filed the civil action for nullity.

of psychological incapacity is not a prejudicial question

that

psychological incapacity, at least insofar as criminal liability

that they had lived together as husband and wife

An Action for declaration of nullity of marriage on ground

There is no cogent reason for distinguishing between a

subsequent marriage that is null and void purely because it

obtained by Paz through force and undue influence in

1)

Thus, as soon as the second marriage was celebrated

during the subsistence of the valid first marriage, the crime

ab

initio

completely

regardless

of

petitioner's

this special contract between spouses, and punish an

individual's deliberate disregard of the permanent character
of the special bond between spouses, which petitioner has
undoubtedly done.

psychological capacity or incapacity.

Although the judicial declaration of the nullity of a
Since a marriage contracted during the subsistence of
a valid marriage is automatically void, the nullity of this

107

marriage on the ground of psychological incapacity retroacts

to the date of the celebration of the marriage insofar as the

vinculum between the spouses is concerned, it is significant

complaint.

If at all, it should be the latter that should be suspended.

to note that said marriage is not without legal effects.

A pending civil case may, however, be considered to be in
Among these effects is that children conceived or born

the nature of a prejudicial question to an administrative case.

before the judgment of absolute nullity of the marriage shall

with law constitutes a prejudicial question vis-a-vis a criminal

be considered legitimate.

In proper cases, a pending administrative case may also

be considered in the nature of a prejudicial question to a civil

There is therefore a recognition written into the law

itself that such a marriage, although void ab initio, may still
produce legal consequences.

Among these legal consequences is incurring criminal

A civil action instituted to resolve whether the designations

of certain persons as sectoral representatives were in accordance

case.

case for violation of the anti-graft law premised on the accused's

partiality and evident bad faith in not paying the former's
salaries and per diem as sectoral representatives.

Thus, an administrative case between parties involving a

parcel of land subject matter of an ejectment case is a

There is no prejudicial question where the outcome of the

prejudicial question which would operate as a bar to said

civil case is not in any way determinative of the guilt or

ejectment case.

innocence of the respondent in the criminal cases.

RULE 112
PRELIMINARY INVESTIGATION

liability for bigamy.

Thus, it has been held that the question of ownership
To hold otherwise would render the State's penal laws

which is pending in a civil case a prejudicial question justifying

on bigamy completely nugatory, and allow individuals to

suspension of proceedings in the criminal case for violation of

deliberately ensure that each marital contract be flawed in

the Anti-Squatting Law.

Formerly, the right to a preliminary investigation refers only to offenses

cognizable by the Regional Trial Court.

some manner, and to thus escape the consequences of

contracting multiple marriages, while beguiling throngs of
hapless

women

with

the

promise

of

futurity

OTHER CASES

and

commitment.

SECTION 1.
Preliminary Investigation Defined; When Required

An action to cancel copyright is not prejudicial to criminal

prosecution for infringement of copyright.

There is no prejudicial question where one case is administrative and the

other is civil

A civil action of replevin is not prejudicial to theft.

In view, however, of the expanded jurisdiction of the Municipal Trial Court

under R.A. No. 7691, jurisdiction over certain offenses which before falls
under the exclusive jurisdiction of the Regional Trial Court were vested in
the Municipal Trial Court and accordingly, under the former rule were no
longer entitled to preliminary investigation.
The present rule includes among offenses entitled to preliminary
investigation those punishable by at least four (4) years, two (2) months
and one (1) day, even if the same is cognizable by the Municipal Trial
Court.

Purpose of Preliminary Investigation

It has been held that one thing is administrative.

Where the issue before the Court of Appeals is the authenticity of a motion to withdraw which at the same time is the

Quite another is the criminal liability.

object of a falsification charged pending in CFI, there is a

prejudicial question involved in the civil case which justifies the

The

determination

of

the

administrative

liability

for

suspension of the criminal case.

falsification of public documents is in no way conclusive of his

lack of criminal liability.

Pisalban u. Tesoro, a criminal case for falsification of an

affidavit presented in a cadastral case should not be suspended

The

dismissal

of

the

administrative

case

does

not

As provided for in the foregoing section, the preliminary

investigation should determine whether there is a sufficient
ground to engender a well-grounded belief that a crime has been
committed and that the respondent is probably guilty thereof,
and should be held for trial.
And if the evidence so warrants, the investigating prosecutor is
duty bound to file the corresponding information.
The Purposes of a Preliminary Investigation or a previous Inquiry of Some
Kind are

a.

to await termination of civil case.

necessarily bar the filing of a criminal prosecution for the same

or similar acts which were the subject of the administrative

108

for the investigating prosecutor to determine if a crime has

been committed.

b.

c.

d.

to protect the accused from the inconvenience, expense and

burden of defending himself in a formal trial unless the
reasonable probability of his guilt shall have been first
ascertained in a fairly summary proceeding by a competent
officer.

granted) is a "substantial one."

to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and
public accusation of a crime, from the trouble, expenses and
anxiety of a public trial; and

While that right is statutory rather than constitutional in its

fundament, since it has in fact established by statute, it is a
component part of due process in criminal justice.
The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and, hence
formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right.

to protect the state from having to conduct useless and

expensive trials.
Scope of Preliminary Investigation

Preliminary investigation is merely inquisitorial, and it is often

the only means of discovering the persons who may be
reasonably charged with a crime, to enable the fiscal to prepare
his 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, and it does not place the person against whom
it is taken in jeopardy.
Nature of Right to Preliminary Investigation
Neither the 1935 nor the 1973 (or 1987) Constitution requires
the holding of a preliminary investigation.
It is a settled doctrine that the right thereto is of statutory
character and may be invoked only when specifically created by
statute.
It is not a fundamental right and is not among the rights
guaranteed to him in the Bill of Rights.

Its denial over his opposition is a "prejudicial error in that it

subjects the accused to the loss of life, liberty or property
without due process of law."

The accused in a criminal trial is inevitably exposed to prolonged

anxiety, aggravation, humiliation, not to speak of expense; the
right to an opportunity to avoid a process painful to any one
save, perhaps, to hardened criminals, is a valuable right.
To deny petitioner's claim to a preliminary investigation would be
to deprive him of the full measure of his right to due process.
While a preliminary investigation is not an occasion for a full and
exhaustive display of the parties evidence, being merely an
inquiry to determine whether or not there is sufficient ground to
engender a founded belief that a crime has been committed and
that the respondent is probably guilty thereof, the right to such
preliminary investigation is still an indispensable element of our
criminal justice system that may not be treated lightly, let alone
ignored.
The right of the accused not to be brought to trial except when
remanded therefor as a result of a preliminary examination
before a committing magistrate, has been held as a substantial
one.

It may be waived expressly or by silence.

Its denial over the objections of the accused is prejudicial error

in that it subjects the accused to the loss of life, liberty or
property without due process of law.
If it is not waived may amount to a denial of due process.

As stated in Marcos u. Cruz, "the preliminary investigation in

criminal cases is not a creation of the Constitution; its origin is
statutory and it exists and the right thereto can be invoked when
so established and granted by law.

As stated in a case, the Solicitor General's argument that the

right to a preliminary investigation may be waived and was in
fact waived by the petitioner, impliedly admits that the right
exists.

It is so specifically granted by procedural law.

Since the right belongs to the accused, he alone may waive its
denial.

If not waived the absence thereof may amount to a denial of due

process.

If he demands it, the State may not withhold it.

Thus, the right of accused (to a preliminary investigation when

The purpose is, however, satisfied if the accused is given all the

109

opportunity to submit countervailing evidence.

Probable cause merely implies probability of guilt and should be
determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a
trial where an accused can demand the full exercise of his rights,
such as the right to confront and cross-examine his accusers to
establish his innocence.
Thus, the lack of authentication of the document presented
during the preliminary investigation does not impair the validity
of the investigation.
The only purpose of a preliminary investigation is "to determine
whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof."
The Court have maintained a consistent policy of noninterference in the determination by the Ombudsman of the
existence of probable cause, provided there is no grave abuse in
the exercise of its discretion.
While it may be true that the documents were unauthenticated,
this is a matter of defense best passed upon after a full-blown
trial.
As ruled in Webb v. De Lean, "the validity and the merits of a
party's defense or accusation as well as the admissibility of
testimonies and evidences are better ventilated during the trial
stage than in the preliminary investigation level."
Effect of Absence of Preliminary Investigation
As the absence of a preliminary investigation is not a ground to
quash the complaint or information, the proceedings upon such
information in the Sandiganbayan should be held in abeyance
and the case should be remanded to the office of the
Ombudsman for him or the Special Prosecutor to conduct a
preliminary investigation.
Thus, the absence of preliminary investigation does not affect
the court's jurisdiction over the case, but merely to the
regularity of the proceedings.
Nor do they impair the validity of the information or otherwise
render it defective; but, if there were no preliminary
investigation and the defendants, before entering their plea,
invite the attention of the court to their absence, the court,
instead of dismissing the information, should conduct such
investigation, or order the fiscal to conduct it.
Moreover, the absence of a preliminary investigation will not
justify petitioner's release because such defect did not nullify the
information and the warrant of arrest against him.

COMPARE:

In Rolito Go v. Court of Appeals, despite the fact that trial on the

merits had began and the prosecution had already presented
four witnesses, the trial was ordered suspended and the accused
allowed to be released on bail pending the preliminary
investigation.
The right to bail was emphasized in Tolentino v. Camano, Jr.
Right May be Waived
The right to a preliminary investigation may be waived by failure
to invoke the right prior to or at least at the time of their plea.
The rule was restated in People v. Monteverde, where the
Supreme Court stated:
"A PRELIMINARY INVESTIGATION IS MANDATORY AND A
CERTIFICATION THAT SUCH INVESTIGATION WAS HELD
IS REQUIRED, STILL THIS RULE DOES NOT APPLY IF THE
ISSUE IS RAISED ONLY AFTER CONVICTION.
After a plea of not guilty to the information, an accused is deemed to have
foregone the right of preliminary investigation and to have abandoned the
right to question any irregularity that surrounds it."

In People v. Lambino, Lambino, before commencement of trial,

demanded his right to preliminary investigation. His motion for
preliminary investigation was denied by the trial court which, in
due course of time, convicted Lambino.
On appeal, the Supreme Couri held that the trial court did not
err in denying Lambino's motion for preliminary investigation
because said motion was filed after he had entered a plea of not
guilty and because he took no steps to bring the matter to a
higher court to stop the trial of the case.
The right to a preliminary investigation shall be deemed waived
for failure to invoke it during arraignment in People u. Valencia
People v. Hubilo, People v. De Asis, or by failing to go to
Appellate Court on certiorari to question denial.
The right to a preliminary investigation may not be raised for the
first time on appeal.
Consenting to be arraigned and entering a plea of not guilty
without invoking the right to preliminary investigation is a
waiver.
It should be invoked prior to or at least, at the time of the plea.
It is also deemed waived by going to trial without previously
claiming that they did not have the benefit of preliminary
investigation.
It may be waived expressly or by silence.

No Waiver When Properly Invoked

A waiver, whether express or implied, must be made in clear and
unequivocal manner.
Mere failure of petitioner and his counsel to appear before the
City Prosecutor cannot be construed as a waiver of his right to
preliminary investigation, where petitioner has been vigorously
invoking his right to a regular preliminary investigation since the
start of the proceedings before the City Prosecutor.
The right is not waived even if the accused had filed an
application for bail and arraigned over his objections and trial on
the merits already began with four witnesses having testified
where accused had from the beginning demanded that a
preliminary investigation be conducted and forthwith brought the
case on certiorari to the Supreme Court.
Presumption of Regularity
The accused who alleges lack of preliminary investigation must
prove such allegation convincingly.
When it does not appear from the record that a preliminary
investigation was not granted, it must be presumed that the
proceedings in the trial court were in accordance with law.
In the absence of evidence to the contrary, the Court will
presume that the fiscal or officer who conducted the requisite
investigation did so in accordance with law.
Effect of Lack of Certification
Lack of certification by the fiscal that a preliminary investigation
had been conducted does not vitiate the information, as a
preliminary investigation is not an essential part of the
information.
The absence of a certification is waived by the failure to allege it
before the plea.
Cases on Right to a New Preliminary Investigation Where Allegation on
Complaint Is Amended

The need to conduct a new preliminary investigation when the

defendant demands it and the allegations of the complaint have
been amended, has been more than once affirmed by the
Supreme Court:
"(a) xxx, the Court finds that since the information for alleged violation of
the Anti-Graft Law was filed without any previous notice to petitioners and
due preliminary investigation thereof, and despite the dismissal of the
original charge for falsification as being without any factual or legal basis,'
petitioners are entitled to a new preliminary investigation for the graft
charge, with all the rights to which they are entitled under section 1 of

110

Republic Act No. 5180, approved September 8, 1967, as invoked by them

anew from respondent court, viz., the submittal of the testimonies in
affidavit form of the complainant and his witnesses duly sworn to before
the investigating fiscal, and the right of accused, through counsel, to
cross-examine them and to adduce evidence in their defense.
In line with the settled doctrine as restated in People v. Abejuela,
respondent court shall hold in abeyance all proceedings in the case before
it until after the outcome of such new preliminary investigation.

OTHER CASES ON WHETHER OR NOT

PRELIMINARY INVESTIGATION IS NEEDED
a.

ANOTHER

If after preliminary investigation, a case is filed in the Court

of First Instance which was dismissed, the Fiscal cannot file
another information charging a different offense based on
the same preliminary investigation.

c.

In Almeda v. Villaluz, the amendment as to habitual

delinquency was not considered substantial.
d.

He must conduct another preliminary investigation.

The principle does not apply where the original information
was not dismissed.
b.

In Bandiala u. Court of First Instance of Misamis Occidental,

where the preliminary investigation was for robbery in band
(with one of the two accused waiving the second stage), the
Court held that the provincial fiscal could not file against the
accused an information for the graver crime of robbery with
kidnapping, without giving the accused "ample opportunity
at full-blown preliminary investigation to demonstrate that
what the fiscal regards as 'kidnapping* in the legal sense
was merely an incident of, and is therefore absorbed in the
crime of robbery."
The Court noted once again that "(A) preliminary
investigation, it must be borne in mind, is a practical device
created by statute and by mandate of our Rules of Court,
principally for the purpose of preventing hasty, malicious
and ill-advised prosecution," and pointedly emphasized that
"(T)he Rules of Court on the matter of preliminary
investigation, construed in their intregrated entirety, direct
that, in the circumstances here obtaining, the Fiscal, if he
believes that he should raise the category of the offense,
must conduct a preliminary investigation anew as to the
entire charge.
Fundamental principles of fair play dictate this course of
action.
The Fiscal is not allowed by the Rules of Court to wait in
ambush; the role of a Fiscal is not mainly to prosecute, but
essentially to do justice to every man and to assist the
courts in dispensing that justice."
A new preliminary investigation is not, however, necessary
after the amendment of the information, where there has
been no change in the nature of the crime charged which is
rebellion, and moreover, petitioner, who was already in
custody when the amended information was filed, should
have asked, but did not, for a re-investigation of said case
within the period of five days from the time he learned of
the amended information.

Where the amendment to an information is not substantial,

there is no need of another preliminary investigation.

e.

A new preliminary investigation is not called for where the

court orders the filing of correct information involving a
cognate offense, such as unfair competition to infringement
of trademarks."
Where only a formal amendment was involved such as
frustrated murder to consummated murder where death of
the victim supervened a preliminary investigation is
unnecessary and cannot be demanded by the accused.

f.

If the crime originally charged is related to the amended

charge such that an inquiry into one would elicit
substantially the same facts that an inquiry into the other
would reveal, a new preliminary investigation is
unnecessary.

g.

In Gaspar v. Sandiganbayan, the Supreme Court pointed

out that there is no rule or law requiring the Tanodbayan to
conduct another preliminary investigation of a case under
review by it.

h.

A motion for reinvestigation should, after the court had acquired

jurisdiction over the case, be addressed to the trial judge and to
him alone. Neither the Secretary of Justice, the State Prosecutor,
nor the Fiscal may interfere with the Judge's disposition of the
case, much less impose upon the court their opinion regarding
the guilt or innocence of the accused, for the court is the sole
judge of that.
The private complainant cannot move for reinvestigation.
But he can appeal to the DOJ or the Ombudsman as the case
maybe.
Caution by Court in Granting Reinvestigation
Courts are, however, called upon to exercise great restraint in
granting any reinvestigation with the consequent delay involved,
since the weighing and evaluation of such evidence in defense of
the accused against the State's evidence is best left to its
judgment and its verdict rather than to that of the prosecution.
To ferret out the truth, trial is to be preferred to a
reinvestigation.
It cannot be denied that in the search for truth, a trial has
distinct merits over a reinvestigation.
A preliminary investigation or reinvestigation, unlike a trial, is
summary in nature.

It is a fundamental principle that when on its face the

information is null and void for lack of authority to file the
same, it cannot be cured nor resurrected by an amendment.

The direct examination of witnesses is substituted by the

complainant's sworn statement and that of his witnesses, and by
the counter-affidavit of the respondent and his witnesses.

Another preliminary investigation must be undertaken and

thereafter, based on the evidence adduced, a new
information should be filed.

While the respondent may be present at the investigation, he

has no right to cross-examine the witnesses against him.

Exception to Right of Preliminary Investigation

Exception There is no right of preliminary investigation under
Section 7, Rule 112 when a person is lawfully arrested unless
there is waiver of the provisions of Article 125 of the Revised
Penal Code.
There is no waiver of the right to a preliminary investigation
despite trial and presentation of four (4) witnesses over the
objection of the accused.
There is a right to preliminary investigation where warrantless
arrest is not lawful.
Motion for Reinvestigation Addressed to Trial Judge

111

To ferret out the truth, therefore, a trial is to be preferred to a

reinvestigation.
Rather than delay the trial of private respondents waiting for the
conduct and outcome of a reinvestigation, it is best that
respondent Judge set the case for immediate trial
As a general rule, the practice of holding in abeyance a criminal
case already filed for reinvestigation of a case filed by the fiscal
upon the accused's motion to present evidence or newly
discovered evidence should be discouraged because it generates
the impression that the accused would be able to fix his case or
that it would be easier for him to manipulate and maneuver its
dismissal in the fiscal's office.

SEC. 2.
Officers Authorized to Conduct Preliminary Investigations

The COMELEC may, however, deputize other prosecuting

arms of government to conduct the investigation and
prosecute the offense in Court

Under the B.P. Big. 129

SEC. 37. Preliminary Investigation. Judges of Metropolitan Trial Courts,
except those in the National Capital Region, of Municipal Trial Courts, and
Municipal Circuit Trial Courts shall have authority to conduct preliminary
investigation of crimes alleged to have been committed within their
respective territorial jurisdictions which are cognizable by the Regional
Trial Courts.

The preliminary investigation shall be conducted in accordance

with the procedure prescribed in Section 1, paragraphs (a), (b),
(c), and (d) of Presidential Decree No. 911;
Provided, however. That he shall forward the records of the case
if after the preliminary investigation the Judge finds a prima
facie he shall forward the records of the case to the
Provincial/City Fiscal for the filing of the corresponding
information with the proper court.
No warrant of arrest shall be issued by the Judge in connection
with any criminal complaint filed with him for preliminary
investigation, unless after an examination in writing and under
oath or affirmation of the complaint and his witnesses, he finds
that a probable cause exists.
Any warrant of arrest issued in accordance herewith may be
served anywhere in the Philippines.
The Supreme Court has expanded the offenses offense where
the penalty prescribed by law is at least four (4) years, two (2)
months and one (1) day without regard to the fine even if it is
cognizable by municipal trial courts.
The provisions ofP.D. No. 911 had been incorporated in Section
3.
A.M. No. 05-8-26-SC (Effective October 3, 2005) removed the
authority of first level judges to conduct preliminary
investigations.
Upon effectivity of the amendments, first level courts shall no
longer accept new cases for preliminary investigation, which fall
under the exclusive jurisdiction of other levels.
Other Persons Authorized to Conduct Preliminary Investigation

a.

The COMELEC is vested with power and authority to conduct

preliminary investigations of all election offenses punishable
under the Omnibus Election Code and to prosecute offenses
in court.

b.

The 1987 Constitution mandates the COMELEC not only to

investigate but also to prosecute cases of violation of
election laws
This means that the COMELEC is empowered to conduct
preliminary investigation in cases involving, election
offenses for the purpose of helping the Judge determine
probable cause and for filing an information in court. This
power is exclusive with COMELEC, whether it involves a
private individual or public officer or employee, and in the
later instance, irrespective of whether the offense is
committed in relation to his official duties or not.
In other words, it is the offender that matters.
As long as the offense is an election offense, jurisdiction
over the same rests exclusively with the COMELEC in view of
its all-embracing power over the conduct of elections.
Hence, the Provincial Prosecutor, as such assumes no role ii
the prosecution of election offenses.
If the Fiscal or Prosecutor file; an information charging an
election offense or prosecutes a violation of election law, it
is because he has been deputized by the COMELEC.
He does not do so under the sole authority of his office.

Preliminary Investigation of Sandiganbayan Case! a. Office of the

Ombudsman

The Ombudsman is clothed with authority to conduct preliminary

investigation and to prosecute all criminal cases involving public
officers and employees, not only those within the jurisdiction of
the Sandiganbayan, but those within the jurisdiction of the
regular court as well.
The authority of the Ombudsman to investigate and prosecute
offenses committed by public officers and employees is founded
in Section 15 and Section 11 of R.A. No. 6770.
Section 15 vests the Ombudsman with the power to investigate
and prosecute any act or omission of any public officer or
employee, office or agency, when sue act or omission appears to
be illegal, unjust, improper or inefficient
The power to investigate and to prosecute granted by law to the

112

Ombudsman is plenary and unqualified.

It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal,
unjust, improper or inefficient.
The law does not make a distinction between cases cognizable
by the Sandiganbayan and those cognizable by regular courts.
It has been held that the clause "any illegal act or omission of
any public official" is broad enough to embrace any crime
committed by a public officer or employee.
The reference made by R.A. No. 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope
of the investigatory and prosecutory power of the Ombudsman
to such cases.
Section 15 of R.A. No. 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases."
The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers
and employees cognizable by other courts.
The exercise by the Ombudsman of his primary jurisdiction over
cases cognizable by the Sandiganbayan is not incompatible with
the discharge of his duty to investigate and prosecute other
offenses committed by public officers and employees.
Indeed, it must be stressed that the
legislature to the Ombudsman are very
kinds of malfeasance, misfeasance and
by public officers and employees during

powers granted by the

broad and encompass all
non-feasance committed
their tenure of office.

Power to Investigate, to file and to prosecute, distinguished

A distinction should be made between the power to investigate,

to file and to prosecute ombudsman cases.
A prosecutor has a shared authority to investigate and prosecute
ombudsman cases not cognizable by the Sandiganbayan.

With respect to cases cognizable by the Sandiganbayan, the

ombudsman has primary authority to investigate and exclusive
authority to file and prosecute Sandiganbayan cases
Section 5, Rule II of Administrative No. 8 of the Office of the
Ombudsman provides that: "Cases falling under the jurisdiction
of the Office of the Ombudsman which are. cognizable by
municipal trial courts, including those subject to the Rule on
Summary Procedure may only be filed in court by Information
approved by the Ombudsman, or the proper Deputy
Ombudsman in all other cases."

jurisdiction in accordance with section ll(4c) of R.A. No.

6770, viz., "to perform such other duties assigned to it by
the Ombudsman."
c.

Under Republic Act No. 6770, the power to investigate and

prosecute cases which are cognizable by the Sandiganbayan is
now lodged with the Ombudsman.
This includes Ombudsman cases which are cognizable by regular
courts.

If the Ombudsman delegates his authority to conduct

administrative investigation to the Special Prosecutor and
the latter finds that preventive suspension is warranted, the
Special Prosecutor may recommend to the ombudsman to
place the said public officer or employee under preventive
suspension."

The Office of the Special Prosecutor (The Tanodbayan)

As a new Office of the Ombudsman was established, the then

existing Tanodbayan became the Office of the Special Prosecutor
which continued to function and exercise its powers provided by
law, except those conferred on the Office of the Ombudsman
created under the 1987 Constitution.

c-1 Moreover, unless authorizing by the Ombudsman the special

prosecutor is not authorized to file an information.
All that was delegated to the special prosecutor by Office
Order No. 40-05 was the discretional authority to review
and modify the deputy ombudsman-authorized information,
but even this is subject to the condition that such
modification must be "without departing from, or varying in
any way, the contents of the basic resolution, order or
decision."

Distinction between Office of the Ombudsman and Office of the Special

Prosecutor

a.

The jurisdiction of the office of the Ombudsman should not

be equated with the limited authority of the Special
prosecutor under Section 11 of R.A. No. 6770 which was
established after the creation of the Office of the Special
Prosecutor.
The office of the special prosecutor is merely a component
of the Office of the Ombudsman and may only act under the
supervision and control and upon authority of the
Ombudsman.
Its power to conduct preliminary investigation and to
prosecute is limited to criminal cases within the jurisdiction
of the Sandiganbayan.

b.

The Office of the Special Prosecutor (the Tanod Bayan), was

made an organic component of the Office of the
Ombudsman, who under the supervision and control and
upon authority of the Ombudsman may conduct preliminary
investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan.
Or

to

prosecute

cases

outside

the

Sandi-ganbayan's

While the Ombudsman's investigatory and prose-cutory

power is plenary and unqualified, the authority of the
Special Prosecutor is limited. While the Ombudsdman may
delegate his investigatory function, including the power to
conduct administrative investigation, to the Special
Prosecutor, the latter has no power to preventively suspend
which is only granted to the Ombudsman and the Deputy
Ombudsman.

The doctrine was made operative to cases filed upon the

finality of the decision.
d.

Deloso v. Domingo upheld the primary and concurrent

jurisdiction of Ombudsman to investigate cases cognizable
by the Sandiganbayan under section 15(i) of R.A. No. 6770
to all kinds of malfeasance by any officer or employee
during his tenure of office.
Preliminary Investigation By Ombudsman

Section 18 of R.A. No. 6770 allows the Office of the Ombudsman

to promulgate its rules of procedure for the effective exercise or
performance of its powers, functions, and duties.
The rules of procedure shall include a provision whereby the
Rules of Court are made suppletory.
Accordingly, the Office of the Ombudsman promulgated
Administrative Order No. 07 known as the RULES OF
PROCEDURE OF THE OFFICE OF THE OMBUDSMAN (Appendix K)

113

and Administrative Order No. 08 CLARIFYING AND MODIFYING

CERTAIN RULES OF PROCEDURE OF THE OMBUDSMAN
The order clarified that: "The preliminary investigation of an
Ombudsman case does not have to be conducted strictly in
accordance with Section 3, Rule 112 of the Rules of Court.
Said rule shall be applied as modified by Rule II of
Administrative Order No. 07 of the Office of the Ombudsman.
Particular attention is directed to the provisions thereof of which
are not exactly in conformity with Section 3, Rule 112 of the
Rules of Court, such as, those on the:

(1) issuance of an order in lieu of subpoena for the filing of

counter-affidavits;
(2) prohibition against a motion to dismiss, motion for a bill
of particulars, and second motion for reconsideration or
reinvestigation;
(3) manner of conducting clarificatory questioning; and the
(4) form of affidavits and counter-affidavits.
It is to be understood, however, that the preliminary
investigation Ombudsman case in accordance with Rule 112 of
the Rules of Court is perfectly valid.
The changes in such procedure effected by Administrative Order
No. 07 are designed merely to expedite the process of
preliminary investigation and to conform with the provisions of
Republic Act No. 6770.
The officer who review a case on appeal should not be the same
person whose decision is under review.
Primary Jurisdiction Refers To Cases in Relation To Public Office of
Accused

The primary jurisdiction, refers to cases in relation to public

office of accused [and punishable for more than six years or a
fine of P6,000.00.]
The Ombudsman's primary power to investigate is dependent on
the cases cognizable by the Sandiganbayan.
Thus, the public prosecutor may conduct preliminary
investigation of Mayor's criminal acts not in relation to his public
office.
For Ombudsman's authority to overrule investigatory prosecutor,
see Cruz v. People, and Sec. 4, Rule 112.

Any officer authorized to conduct a preliminary investigation who

is investigating an offense or felony committed by public officer
must determine if the crime was committed by the respondent in
relation to his office.

It has primary jurisdiction over cases cognizable by the Sandiganbayan

and, in the exercise of this primary jurisdiction, it may take over, at any
stage, from any investigatory agency of Government, the investigation of
such cases

If it was, the investigating officer shall forthwith inform the office

of the Ombudsman who may either:

Section 11 grants the Office of the Special Prosecutor, an organic

component of the Office of the Ombudsman... the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan. It states:

(a) take over the investigation of the case pursuant to

Section 15(1) of R.A. No. 6770 or
(b) deputize a prosecutor to act as special investigator or
prosecutor to assist in the investigation and prosecution
of the case pursuant to section 31 thereof.
In light of the broad powers conferred by law on the
Ombudsman and the Special Prosecutor, it is completely
inconsequential that the complaint by which a criminal case was
instituted charging a crime cognizable by the Sandiganbayan
might have been originally filed with the Iloilo Prosecution Office,
or the preliminary investigation therein conducted.
Power Includes all Criminal Cases Involving Public Officers and Employees

In its Resolution On March 20, 2001 The Court in George Uy v

Sandiganbayan, which was reiterated in Office of the
Ombudsman v. Breua, categorically stated that: "the
Ombudsman is clothed with authority to conduct preliminary
investigation and to prosecute all criminal cases involving public
officers and employees, not only those within the jurisdiction of
the Sandiganbayan, but those within the jurisdiction of the
regular courts as well."
Elaborating on its n ruling nullifying its earlier decision, writes:
THE AUTHORITY OF THE OMBUDSMAN TO INVESTIGATE
AND PROSECUTE OFFENSES COMMITTED BY PUBLIC
OFFICERS AND EMPLOYEES IS FOUNDED IN SECTION 15
AND SECTION 11 OF R.A. NO. 6770. SECTION 15 VESTS
THE OMBUDSMAN WITH THE POWER TO INVESTIGATE
AND PROSECUTE ANY ACT OR OMISSION OF ANY PUBLIC
OFFICER OR EMPLOYEE, OFFICE OR AGENCY, WHEN SUCH
ACT OR OMISSION APPEARS TO BE ILLEGAL, UNJUST,
IMPROPER OR INEFFICIENT, THUS:

"Sec. 11. Structural Organization. xxx xxx

xxx

xxx

(4) The Office of the Special Prosecutor shall, under the supervision and
control and upon authority of the Ombudsman, have the following
powers:

Moreover, the jurisdiction of the Office of the Ombudsman

should not be equated with the limited authority of the Special
Prosecutor under Section 11 of R.A. No. 6770 [whose] power to
conduct preliminary investigation and to prosecute is limited to
criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to these
types of cases.
The Ombudsman is mandated by law to act on all complaints
against officers and employees of the government....
The Presidential Commission on Good Government (PCGG)

(a) To conduct preliminary investigation and prosecute criminal cases

within the jurisdiction of the Sandiganbayan;

Prosecution for Violations of RA. No. 3019 (Anti-Graft Law) and

RA. No. 1379 (Unexplained Wealth)

The power to investigate and to prosecute granted by law to the

Ombudsman is plenary and unqualified.

Under Executive Order No. 14, signed by President Aquino on

May 7,1986.

It pertains to any act or omission of any public officer or

employee when such act or omission appears to be illegal,
unjust, improper or inefficient.
The law does not make a distinction between cases cognizable
by the Sandiganbayan and those cognizable by regular courts.

The Presidential Commission on Good Government with the

assistance of the Office of the Solicitor General and other
government agencies, were empowered to file and prosecute all
cases investigated by it under Executive Order No. 1, dated
February 28, 1986 and Executive Order No. 2, dated March 12,
1986, as may be warranted by its findings.

It has been held that the clause "any illegal act or omission of
any public official" is broad enough to embrace any crime
committed by a public officer or employee.

The Presidential Commission on Good Government shall file all

such cases, whether civil or criminal, with the Sandiganbayan,
which shall have exclusive and original jurisdiction thereof.

The reference made by R.A. No. 6770 to cases cognizable by the

Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope
of the investigatory and prosecutory power of the Ombudsman
to such cases.

Upon the other hand, civil suits for restitution, reparation of

damages, or indemnification for consequential damages,
forfeiture proceedings provided for under Republic Act No. 1379,
or any other civil actions under the Civil Code or other existing
laws, in connection with Executive Order No. 2, dated March 12,
1986, may be filed separately from and proceed independently
of any criminal proceedings and may be proved by
preponderance of evidence.

Section 15 of R.A. No. 6770 gives the Ombudsman primary

jurisdiction over cases cognizable by the Sandiganbayan.

"Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:

The law defines such primary jurisdiction as authorizing the

Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases."

(1) Investigate and prosecute on its own or on complaint by any person,

any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient.

The grant of this authority does not necessarily imply the

exclusion from its jurisdiction of cases involving public officers
and employees cognizable by other courts.

From the foregoing provisions of law, particularly Sections 2(b)

and 3(a) of Executive Order No. 1 and Sections 1 and 2 of
Executive Order No. 14, the PCGG has the power to investigate
and prosecute such ill-gotten wealth cases of the former
President, his relatives and associates, and graft and corrupt
practices cases that may be assigned by the President to the
PCGG to be filed with the Sandiganbayan.
The authority to investigate extended to the PCGG includes the
authority to conduct a preliminary investigation.
The ruling was further clarified in Cruz, Jr. v. Sandiganbayan:

114

THE COURT THEN HELD THAT SECTIONS 2(A) AND 3, OF

EXECUTIVE ORDER NO. 1, IN RELATION WITH SECTIONS
1, 2 AND 3 OF EXECUTIVE ORDER NO. 14, SHOWS THAT
WHAT THE AUTHORITY OF THE RESPONDENT PCGG TO
INVESTIGATE AND PROSECUTE COVERS ARE:
a.
The investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No. 1379, accumulated by former President Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines
or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through his nominees, by taking undue
advantage of their public office and/or using their powers, authority
and influence, connections or relationship; and
b.

The investigation and prosecution of such offenses committed in the

acquisition of said ill-gotten wealth as contemplated under Section
2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act
not otherwise falling under the foregoing categories, require a
previous authority of the President for the PCGG to investigate and
prosecute the same in accordance with Section 2(b) of Executive
Order No. 1.
Otherwise, jurisdiction over such cases is vested in the Ombudsman
and other duly authorized investigating agencies as the provincial
and city prosecutors, their assistants, the Chief State Prosecutor and
his assistants, and the state prosecutors.

c.

The PCGG would not have jurisdiction over an ordinary case falling
under Rep. Act Nos. 3019 and 1379.
The PCGG may, however, investigate and cause the prosecution of
active and retired members of the AFP for violations ofR.A. Nos.
3019 and 1379 only in relation to E.O. Nos. 1, 2, 14, and 14-a, i.e.,
insofar as they involve the recovery of ill-gotten wealth of former
President Marcos and his family and his cronies.

d.

e.

The appropriate prosecutory agencies that may investigate and file

the petition under R.A. No. 1379 and file the petition for forfeiture of
unexplained wealth against a private citizen are the provincial
prosecutor and the Solicitor General
For violation of R.A. No. 3019 and 1379 of those who are still in
office the agency granted the power to investigate and prosecute
them is the office of the Ombudsman.
Under Presidential Decree No 1606, as amended and Batas
Pambansa Big. 195, violation of Rep. Act Nos. 3019 and 1379 shall
be tried by the Sandiganbayan.
It is a civil procreedings in rem but criminal in nature

The law underwent several changes. Under R.A. No. 6770 the
Ombudsman was granted the authority to investigate and initiate
the proper action for the recovery of ill-gotten and/or

unexplained wealth amassed after 25 February 1986 and the

prosecution of the parties involved.
After reviewing the legislative history of the Sandiganbayan and
the Office of the Ombudsman, the Court declared that
"UNDER R.A. NO. 8249, THE SANDIGANBAYAN IS VESTED
WITH EXCLUSIVE ORIGINAL JURISDICTION IN ALL CASES
INVOLVING VIOLATIONS OF R.A. NO. 3019, R.A. NO.
1379, AND CHAPTER II, SEC. 2, TITLE VII, BOOK II OF
THE REVISED PENAL CODE, WHERE ONE OR MORE OF THE
ACCUSED ARE OFFICIALS OCCUPYING THE FOLLOWING
POSITIONS WHETHER IN A PERMANENT, ACTING OR
INTERIM CAPACITY, AT THE TIME OF THE COMMISSION
OF THE OFFENSE:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of the
Compensation and Position Classification Act of 989 (R.A. No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other city department heads;
(b)

City mayor, vice-mayors, members of the sangguniang panlungsod,

city treasurers, assessors, engineers, and other city department
heads;

(c)

Officials of the diplomatic service occupying the position of consul

and higher;

(d)

Philippine army and air force colonels, naval captains, and all officers
of higher rank;

the Court will not interfere nor pass upon the findings of the
Ombudsman to avoid its being hampered by innumerable
petitions assailing the dismissal of investigatory proceedings
conducted by the Office of the Ombudsman with regard to
complaints filed before it, and that it will not review the exercise
of discretion on the part of the fiscals or prosecuting attorneys
each time they decide to file an information in court or dismiss a
complaint by a private complainant.
The court, however, stressed that while it is the Ombudsman
who has full discretion to determine whether or not a criminal
case should be filed in the Sandiganbayan, once the case has
been filed with said court, it is the Sandiganbayan, and no longer
the Ombudsman, which has full control of the case so much so
that the informations may not be dismissed without the approval
of said court.
No Injunction Against Ombudsman to Delay Investigation

Under Section 14 of Republic Act No. 6770: No writ of injunction

shall be issued by any court to delay an investigation being
conducted by the Ombudsman under this act, unless there is a
prima facie evidence that the subject matter of the investigation
is outside the jurisdiction of the office of the Ombudsman.
Moreover, no court shall hear any appeal or application for
remedy against the decision or findings of the Ombudsman
except the Supreme Court, on pure question of law.
Remedy
The remedy of aggrieved parties from resolutions of the office of
the Ombudsman finding probable cause in criminal cases or nonadministrative cases, when tainted with grave abuse of
discretion, is to file an original action for certiorari with the
Supreme Court and not with the Court of Appeals.

(e)

Officers of the Philippine National Police while occupying the position

of provincial director and those holding the rank of senior
superintendent or higher;

(f)

City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;

Jurisdiction over money-laundering cases

Presidents, directors or trustees, or managers of government-owned

or controlled corporations, state universities or educational
institutions

The Anti money-laundering law provides for two kinds of cases

which are independent of each other.

The PCGG may, however, also investigate and prosecute graft

and corrupt practices cases that may be assigned by the
President to the PCGG to be filed with the Sandiganbayan.

The criminal action for anti-money-laundering offense and the

civil forfeiture proceedings which may be filed separately and
proceed independently of the criminal prosecution.

(g)

Non-interference with Ombudsman

The Court recognizing the investigatory and prosecutory powers
granted by the Constitution to the office of the Ombudsman and
for reasons of practicality, declared in an en bane resolution
dated August 30, 1993, issued in Ocampo u. Ombudsman, that

115

a.

The Criminal Action

Republic Act No. 9160 as amended (The Anti-Money
Laundering Act of 2001)
Defines

Money Laundering Offense. Money laundering is a crime

whereby the proceeds of an unlawful activity are transacted,
thereby making them appear to have originated from
legitimate sources.
It is committed by the following:
1)

Any person knowing that any monetary instrument or

property represents, involves, or relates to the proceeds
of any unlawful activity, transacts or attempts to
transact said monetary instrument or property.

The Rule shall govern all proceedings for civil forfeiture,

asset preservation and freezing of monetary instrument,
property, or proceeds representing, involving, or relating to
an unlawful activity or a money laundering offense under
Republic Act No. 9160, as amended.

other remedial proceedings through the Office of the

Solicitor General with the Regional Trial Court.

The Revised Rules of Court shall apply suppletorily when not

inconsistent with the provisions of this special Rule.

It is only in criminal cases that the AMLC is authorized to

cause the filing of complaints with the Department of Justice
or the Ombudsman for the prosecution of money laundering
offenses.

There is no similar authority to file such cases with the

Sandiganbayan.

II of the Rule provided only for Civil Forfeiture in the

Regional Trial Court. Thus
TITLE

But unlike Civil Forfeiture under R.A. No. 1379 which

specifically authorized its filing by the Ombudsman or thru
the Office of Special Prosecutor in the Sandiganbayan.
No similar authority have been granted the Ombudsman
with respect to civil forfeiture under the Anti-money
Laundering Law.

SEC.

b.

2)

Any person knowing that any monetary instrument or

property involves the proceeds of any unlawful activity,
performs or fails to perform any act as a result of which
he facilitates the offense of money laundering referred
to in paragraph (a) above.

3)

Any person knowing that any monetary instrument or

property is required under this Act to be disclosed and
filed with the Anti-Money Laundering Council (AMLC),
fails to do so.

2. Party to institute proceedings. The Republic of the

Philippines, through the Anti-Money Laundering Council, represented
by the Office of the Solicitor General, may institute actions for civil
forfeiture and all other remedial proceedings in favor of the State of
any monetary instrument, property, or proceeds representing,
involving, or relating to an unlawful activity or a money laundering
offense.
SEC.

3. Venue of cases cognizable by the regional trial court. A

petition for civil forfeiture shall be filed in any regional trial court of
the judicial region where the monetary instrument, property, or
proceeds representing, involving, or relating to an unlawful activity
or to a money laundering offense are located;

Jurisdiction of Money Laundering Cases

Those committed by public officers and private persons who

are in conspiracy with such public officers shall be under the
jurisdiction of the Sandiganbayan.

A significant amendment is the 2nd paragraph of par. (b) regarding

respondent's right to examine all other evidence submitted by the
complainant of which he may not have been furnished and to obtain
copies thereof at his expense.

The law created an Anti-Money Laundering Council (AMLC).

tasked with implementing the law, was empowered:

If such records are voluminous the complainant may be required to

specify and identify those which he intends to present against the
respondent to support the charge against the latter and these shall
be made available for examination, copying or photographing by
respondent at his expense.

(3) to institute civil forfeiture proceedings and all other

remedial proceedings through the Office of the Solicitor
General;

The Civil Forfeiture Proceedings

The law provided that in petitions for civil forfeiture the
Revised Rules of Court shall apply.

The Rule expressly provided that

1.
Amendment in paragraph (a) requires that the complaint should
be accompanied by affidavits of the complainant and his witnesses as
well as other supporting papers relied upon by him (the complainant)
to establish probable cause.

The Rule does not provide for civil forfeiture before the
Sandiganbayan.

The foregoing section apparently refers to the criminal

offense of anti-money laundering as defined in section 4 of
the law.

In consequence thereof, the Supreme Court issued the RULE

OF PROCEDURE IN CASES OF CIVIL FORFEITURE, ASSET
PRESERVATION,
AND
FREEZING
OF
MONETARY
INSTRUMENT, PROPERTY, OR PROCEEDS REPRESENTING,
INVOLVING, OR RELATING TO AN UNLAWFUL ACTIVITY OR
MONEY LAUNDERING OFFENSE UNDER REPUBLIC ACT NO.
9160, AS AMENDED

COMMENT:

Provided, however. That where all or any portion of the monetary

instrument, property, or proceeds is located outside the Philippines,
the petition may be filed in the regional trial court in Manila or of the
judicial region where any portion of the monetary instrument,
property, or proceeds is located, at the option of the petitioner.

The regional trial courts shall have jurisdiction to try all

cases on money laundering.

c.

SEC. 3.
Procedure

The amendment was brought about because of the case of

Commissioner of Internal Revenue v. Court ofAppeals, where among
the issues raised is the failure of the complainant to produce the
documents in support of the complaint.

(4) to cause the filing of complaints with the Department of

Justice or the Ombudsman for the prosecution of money
laundering offenses;

For obvious reasons, objects as evidence need not be furnished

either party but shall be made accessible for examination, copying or
photocopying by the complainant or respondent at the expense of
the requesting party.

(5) to initiate investigations of covered transactions, money

laundering activities and other violations of this Act.
d.

Civil and Criminal Forfeiture Distinguished

It is to be noted that under the Anti-Money Laundering Act,
so far as Civil Forfeiture is concerned it is the AMLC that is
authorized to institute civil forfeiture proceedings and all

116

2.

The amendment in paragraph (c) prohibits the filing of a motion to

dismiss. This is a significant amendment.
It abrogates the ruling in Commissioner of Internal Revenue v. Court
of Appeals, where the court castigated the investigator for
proceeding without first acting on respondents' motion to dismiss.

innocent
against
hasty,
malicious
and
oppressive
prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety
of a public trial, and to protect the state from useless and
expensive trials.
The right to a preliminary investigation is a statutory grant,
and to withhold it would be to transgress constitutional due
process."

Since a motion to dismiss is now a prohibited pleading, the

investigator may properly ignore such a motion.
The amendments require the respondent to submit counter-affidavits
and other supporting documents relied upon by him for his defense.
3.

The amendment in sub-par, (d) requires the prosecutor to resolve

the complaint based on the evidence presented by the complainant if
the respondent cannot be subpoenaed or, if subpoenaed, does not
submit counter-affidavit[s] within the ten (10-day period.

4.

In sub-par, (e), the clarificatory hearing shall only be limited to facts

and issues which the investigating officer believes need to be
clarified.

However, in order to satisfy the due process clause, it is not

enough that the preliminary investigation is conducted in
the sense of making sure that a transgressor shall not
escape with impunity.

The clarificatory hearing shall be held within ten (10) days from
submission of the counter-affidavit and other documents, or from
expiration of the period for their submission. It shall be terminated
within five (5) days.

A preliminary investigation serves not only the purposes of

the State.

5.

More important, it is a part of the guarantee of freedom and

fair play which are birthrights of all who live in our country.

The investigation shall then be deemed concluded and the

investigating officer shall, within ten (10) days, determine whether
or not there is sufficient ground to hold the respondent for trial upon
the evidence adduced.

It is, therefore, imperative upon the fiscal or the judge as

the case may be, to relieve the accused from the pain of
going through a trial once it is ascertained that the evidence
is insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to the
guilt of the accused.

Preliminary Investigation Concept

a.

A preliminary investigation is merely inquisitorial, but it is

considered as a judicial proceeding wherein the prosecutor
or investigating officer, by the nature of his functions acts as
a quasi-judicial officer.

Although there is no general formula or fixed rule for the

determination of probable cause since the same must be
decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon
the finding or opinion of the prosecutor (judge) conducting
the examination, such a finding should not disregard the
facts before the prosecutor (judge) nor run counter to the
clear dictates of reasons.

The conduct of a preliminary investigation is the initial step

towards the criminal prosecution of a person.
After such preliminary investigation, if the investigating
officer finds that there is sufficient ground to engender a
well-founded belief that a crime has been committed and
that the respondent is probably guilty thereof and should be
held for trial, then the corresponding complaint or
information shall be filed in the competent court.

Such a preliminary investigation must be undertaken in

accordance with the procedure provided in Section 3, Rule
112 of The Revised Rules on Criminal Procedure.

It is the filing of said complaint or information that initiates

the criminal prosecution of the accused when he is brought
to court for trial.
b.

This procedure is to be observed in order to assure that a

person undergoing such preliminary investigation will be
afforded due process.

Importance of Preliminary Investigation

The Supreme Court stressed the importance of a preliminary
investigation or how the same should be conducted in order
for it to conform with the essential requisites of due process
and reiterated its ruling in the cases of Salonga v. Pano, et
al., and Geronimo v. Ramos, that:
"The purpose of a preliminary investigation is to secure the

c.

The Proceedings are Considered as Judicial in Nature

Thus, the conduct of a preliminary investigation, which is
defined as "an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender
a well-founded belief that a crime has been committed and
that the respondent is probably guilty thereof, and should
be held for trial," is, like court proceedings, subject to the

117

requirements
process.

of both

substantive

and

procedural

due

This is because a preliminary investigation is considered a

judicial proceeding wherein the prosecutor or investigating
officer, by the nature of his functions, acts as a quasijudicial officer, but only to the extent that, like quasi-judicial
bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court.
d.

DOJ is not a quasi-judicial agency; Preliminary Investigation

is not a quasi-judicial proceeding reviewable under Rule 43
The Court, however, clarified that: A preliminary
investigation is not a quasi-judicial proceeding, and the DOJ
is not a quasi-judicial agency exercising a quasi-judicial
function when it reviews the findings of a public prosecutor
regarding the presence of probable cause.
The Court pointedto its ruling in Bautista u. Court of
Appeals, holding that a preliminary investigation is not a
quasi-judicial proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine
the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions.
Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged
with a crime and to enable the fiscal to prepare his 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 the fiscal makes that determination, he cannot be said to be
acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.

Though some cases describe the public prosecutor's power

to conduct a preliminary investigation as quasi-judicial in
nature, this is true only to the extent that, like quasi-judicial
bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court, and
the similarity ends at this point.
A quasi-judicial body is as an organ of government other
than a court and other than a legislature which affects the
rights of private parties through either adjudication or rulemaking.
A quasi-judicial agency performs adjudicatory functions such

that its awards, determine the rights of parties, and their

decisions have the same effect as judgments of a court.
Such is not the case when a public prosecutor conducts a
preliminary investigation to determine probable cause to file
an information against a person charged with a criminal
offense, or when the Secretary of Justice is reviewing the
former's order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not one
of those agencies whose decisions, orders or resolutions are
appealable to the Court of Appeals under Rule 43, the
resolution of the Secretary of Justice finding probable cause
to indict petitioners for estafa is, not appealable to the Court
of Appeals via a petition for review under Rule 43.
However, the Resolution of the DOJ Secretary is appelable
administratively to the Office of the President where the
offense charged is punishable by Reclusion perpetua."
The availability of the remedy of a petition for review under
Rule 43 of the Rules of Court to appeal the Decision and
Resolution of the Office of the President effectively foreclose
the right to resort to a special civil action for certiorari.

In our criminal justice system, the law enforcer who conducted

the criminal investigation, gathered the evidence and thereafter
filed the complaint for the purpose of preliminary investigation
cannot be allowed to conduct the preliminary investigation of his
own complaint. It is to say the least arbitrary and unjust.
One cannot be a prosecutor and judge at the same time.
Having gathered the evidence and filed the complaint as a law
enforcer, he cannot be expected to handle with impartiality the
preliminary investigation of his own complaint, this time as a
public prosecutor.
Since a preliminary investigation is designed to screen cases for
trial, only evidence may be considered.
While reports and even raw information may justify the initiation
of an investigation, the stage of preliminary investigation can be
held only after sufficient evidence has been gathered and
evaluated warranting the eventual prosecution of the case in
court.
Meaning of Probable Cause for Purpose of Filing Information

The term does not mean "actual or positive cause"; nor does it
import absolute certainty.
It is merely based on opinion and reasonable belief.
Determination of Probable Cause
As summed up in Webb u. de Leon, a finding of probable cause
needs only to rest on evidence showing that more likely than not
a crime has been committed and was committed by the
suspects.
Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt.
As well put in Brinegar v. United States, while probable cause
demands more than "bare suspicion," it requires "less than
evidence which would justify x x x a conviction."
A finding of probable cause merely binds over the suspect to
stand trial.
It is not a pronouncement of guilt.

RESPONDENT CANNOT BE COMPELLED TO SUBMIT COUNTER-AFFIDAVIT

BEFORE COMPLAINANT HAS SUBMITTED ITS AFFIDAVITS; CRIMINAL
INVESTIGATION AND PRELIMINARY INVESTIGATION DISTINGUISHED

Probable cause is a reasonable ground of presumption that a

matter is, or may be, well founded does not mean actual and
positive cause nor does it import actual certainty.

The respondent undergoing a preliminary investigation may not

be compelled to submit a counter-affidavit before the submission
of complainant's affidavit.

It is merely based on opinion and reasonable belief.

Thus, probable cause should be determined in a summary but

scrupulous manner to prevent material damage to a potential
accused's constitutional right to liberty and the guarantees of
freedom and fair play.

Thus, a finding of probable cause does not require an inquiry

into whether there is sufficient evidence to procure a conviction.

The preliminary investigation is not the occasion for the full and
exhaustive display of the parties evidence.

It is enough that it is believed that the act or omission

complained of constitutes an offense charged.

It is for the presentation of such evidence as may engender a

well grounded belief that an offense has been committed and
that the accused is probably guilty thereof.

The general power of investigation of the PCGG as consisting of

two stages; the first stage, called the criminal investigation, is a
fact-finding inquiry conducted by law enforcement agents,
whereby they gather evidence and interview witnesses and
afterwards assess the evidence so that, if they find sufficient
basis, they can file a complaint for the purpose of preliminary
investigation.
The second stage, called the preliminary investigation stage, is
conducted for the purpose of ascertaining if there is sufficient
evidence to bring a person to trial.
Having found petitioner prima facie guilty of violation of Rep. Act
No. 3019 for which reason it issued a freeze order against him
and filed a civil complaint for recovery of alleged ill-gotten
wealth, the PCGG could not thereafter act as an impartial judge
in conducting a preliminary investigation of criminal complaints
based on the same facts found by it to constitute prima facie
evidence against petitioner.

Precisely, there is a trial for the reception of evidence of the

prosecution in support of the charge.
Probable cause is the existence of such facts and circumstances
as would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted.
As a protection against false prosecution and arrest, the
knowledge of facts, actual or apparent must, however, be strong
enough to justify a reasonable man in the belief that he has
lawful grounds for arresting the accused
It is such a state of facts in the mind of the prosecutor as would
lead a person of ordinary caution and prudence to believe an
honest or strong suspicion that a thing is so.

118

It is a means of discovering the persons who may be reasonably

charged with a crime.
The validity and merits of a party's defense or accusation, as
well as admissibility of the testimonies and evidence, are better
ventilated during trial proper than at the preliminary
investigation level.
No Need to Set Investigation for Clarificatory Questioning

Considering the low quantum and quality of evidence needed to

support a finding of probable cause, the court held that the DOJ
Panel did not gravely abuse its discretion in refusing to call the
NBI witnesses for clarificatory questions.

The decision to call witnesses for clarificatory questions is

addressed to the sound discretion of the investigator and the
investigator alone.
If the evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing.
Probable cause merely implies probability of guilt and should be
determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a
trial where an accused can demand the full exercise of his rights,
such as the right to confront and cross-examine his accusers to
establish his innocence.
It is not the proper forum for an exhaustive production of
evidence.

propositions, namely:
(1) that the conduct of a preliminary investigation is "not a
judicial function x x x (but) part of the prosecution's
job, a function of the executive,"
(2) that wherever "there are enough fiscals or prosecutors
to conduct preliminary investigations, courts are
counseled to leave this job which is essentially
executive to them," and the fact "that a certain power is
granted does not necessarily mean that it should be
indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure,
declared effective on October 1, 1988, did not restore that
authority to Judges of Regional Trial Courts; said amendments
did not in fact deal at all with the officers or courts having
authority to conduct preliminary investigations.

Section 3, Rule 112 of the Rules of Court expressly provides that

the respondent shall only have the right to submit a counteraffidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound
clarificatory questions to the parties or their witnesses, to be
afforded an opportunity to be present but without the right to
examine or cross-examine.
The parties may propound questions thru the investigating
officer.
Absence of Counsel
Where the accused is not represented by a counsel during the
preliminary investigation, such irregularity which amounts to an
absence of preliminary investigation should be raised before the
trial court.

Stages of Preliminary Investigation: Former and Present Rule

The Court, pointed out in Sangguniang Bayan ofBatac v. Judge

Efren Albano, that the two stages under the old rule, namely:

(1) the preliminary examination stage, during which the

investigating judge determines whether there is reasonable
ground to believe that an offense has been committed, and
the accused is guilty thereof, so that a warrant of arrest
may be issued and the accused hold for trial; and

(2) the preliminary investigation proper, where the complaint or

information is read to the accused after his arrest and he is
informed of the substance of the evidence adduced against
him, after he is allowed to present his evidence in his favor
if he so desires, was changed by Presidential Decree No.
911, upon which the present rule is based which removed
the preliminary examination stage and integrated it into the
preliminary investigation proper.
Now, the proceedings consist only of one stage.
JUDGES OF REGIONAL TRIAL COURTS (FORMERLY COURTS OF FIRST
INSTANCE) NO LONGER HAVE AUTHORITY TO CONDUCT PRELIMINARY
INVESTIGATIONS

That authority, at one time, reposed in them under Sections 13,

14 and 16, Rule 112 of the Rules of Court of 1964 was removed
from them by the 1985 Rules on Criminal Procedure, effective on
January 1, 1985, which deleted all provisions granting that
power to said judges.
The Supreme Court had occasion to point this out in Salta v.
Court of Appeals, and to stress as well certain other basic

Judges' Power (Duty) to Conduct Preliminary Examination

This is not to say, however, that somewhere along the line, RTC
Judges also lost the power to make a preliminary examination
for the purpose of determining whether probable cause exists to
justify the issuance of a warrant of arrest (or search warrant).
Such a power indeed, it is as much a duty as it is a power
has been and remains vested in every judge by the provision in
the Bill of Rights in the 1935, the 1973 and the present 1987
Constitutions securing the people against unreasonable searches
and seizures, thereby placing it beyond the competence of mere
Court rule or statute to revoke.
The distinction must, therefore, be made clear.
While an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for
the filing of a criminal complaint or information, he retains the
authority when such a pleading is filed with his Court, to
determine whether there is probable cause justifying the
issuance of a warrant of arrest.
It might be added that this distinction accords, rather than
conflicts, with the rationale of Salta because both law and rule,
in restricting to judges the authority to order arrest, recognize
that function to be judicial in nature.
No Right of Cross-Examination
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses which
the complainant may present.

119

When so raised, the trial court is called upon not to dismiss the
information but hold the case in abeyance and conduct its own
investigation or require the fiscal to hold a reinvestigation.
This is the proper procedure since the absence of such
investigation did not impair the validity of the information or
otherwise render it defective.
Much less did it affect the jurisdiction of the trial court.
The right to a preliminary investigation, being waivable does not
argue against the validity of the proceedings.
The most that should be done is to remand the case in order
that such investigation could be conducted.
No Right to Counsel During Preliminary Investigation

It has been held that there is nothing in the rules which renders
a preliminary investigation invalid because defendant was
without counsel.
See, however, People v. Abano, where the confession obtained
during preliminary investigation without the assistance of
counsel was held as inadmissible.
The Right of Accused to Discovery Procedures
In Webb u. de Leon, the court held that an accused is entitled
during preliminary investigation to discovery procedure.
While recognizing the absence of any provision in the Rules on
Criminal Procedure for discovery proceedings during preliminary

investigation, the Court held that such failure does not, however,
negate its use by a person under investigation when
indispensable to protect his constitutional right to life, liberty and
property.
Preliminary investigation is not too early a stage to guard
against significant erosion of the constitutional right to due
process of a potential accused; x x x and upheld the legal basis
of the right of petitioners to demand from their prosecutor, the
NBI, the original copy of the sworn statement and the FBI report
considering
their
exculpatory
character,
and
hence,
unquestionable materiality to the issue of their probable guilt.
Under the present rule, the respondent shall have the right to
examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense.
If the evidence is voluminous, the complainant may be required
to specify those which he intends to present against the
respondent, and these shall be made available for examination
or copying by the respondent at his expense.
Preliminary Designation of Offense Not Conclusive

The preliminary designation of the offense in a directive to file

counter affidavits is not conclusive as to the true nature of the
offense charged.
The Right to be Present Not Absolute
The New Rules on Criminal Procedure does not require as a
condition sine qua non to the validity of the proceedings in the
preliminary investigation; the presence of the accused for as
long as efforts to reach him were made, and an opportunity to
controvert the evidence of the complainant is accorded him.
The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of offenses
by hiding themselves or by employing dilatory tactics.
Thus, preliminary investigation can be conducted ex-parte if the
respondent cannot be subpoenaed or does not appear after due
notice.
The fiscal need not call the witnesses for clarificatory questioning
if the evidence on hand already yields probable cause.
The Right to Notice
The, respondent is, however, entitled to be notified of the
proceedings and to be present thereat.
The fact that he was not so notified is a denial of fundamental

fairness which taints the preliminary investigation.

In a petition for forfeiture under R.A. No. 1379 respondent must
be furnished a copy of the resolution directing the filing of a
petition for forfeiture and to file a motion for reconsideration.
The notice must be sent at the right address.
Preliminary Investigation Must Be Completed
Where the rules of the Ombudsman (R.A. No. 6770, Sec. 7, Rule
II, Administrative Order No. 7), allows a party to file a motion
for reconsideration, but the respondents were not furnished a
copy of the resolution and an opportunity to file a motion for
reconsideration before the filing of the information against them
in court, the Supreme Court held that, they were deprived of
their right to a full preliminary investigation preparatory to the
filing of the information against them, which warranted the
remand of the case to the Office of the Ombudsman to complete
the preliminary investigation.
The failure, however, to furnish the respondent with a copy of an
adverse resolution pursuant to Section 6, Rule II of the Rules of
Procedure of the Office of the Ombudsman, does not affect the
validity of information thereafter filed.
Under Section 7(b) of the same Rule no motion from
reconsideration or reinvestigation shall be entertained after the
information shall have been filed in court, except upon order of
the court wherein the case was filed.
Thus, when required by law the right to a preliminary
investigation is a substantial right and its denial amounts to a
denial of due process.
Its absence, however, is not a ground for a motion to quash.
General Court Martial
Under Military law, the conduct of investigations is primarily
governed by Articles 71 of the Articles of War, which provides:
Charges and specifications must be signed by a person subject
to military law, and under oath either that he has personal
knowledge of, or has investigated the matters set forth therein
and that the same are true in tact, to the best of his knowledge
and belief.
No charge will be referred to a general court martial for trial until
after a thorough and impartial investigation thereof shall have
been made.
This investigation will include inquiries as to the truth of the
matter set forth in said charges, form of charges, and what
disposition of the case should be made in the interest of justice
and discipline.

120

At such investigation, full opportunity shall be given to the

accused to cross-examine witnesses against him if they are
available and to present anything he may desire in his own
behalf, either in defense or mitigation, and the investigating
officer shall examine available witnesses requested by the
accused.
If the charges are forwarded after such investigation, they shall
be accompanied by a statement of the substance of the
testimony taken on both sides.
Before directing the trial of any charge by general court-martial
the appointing authority will refer it to his staff judge advocate
for consideration and advise.
SEC. 4.
Resolution of Investigating Prosecutor and its Review
COMMENTS:
1.

Under the amendment, whether the recommendation of the

investigating officer is to file or dismiss the case, he shall, within five
(5) days from his resolution, forward the records of the case to the
provincial or city prosecutor or chief state prosecutor or, for offenses
cognizable by the sandiganbayan in the exercise of its original
jurisdiction, to the ombudsman or his deputy the latter shall take
appropriate action thereon within ten (10) days from receipt and
shall immediately inform the parties of said action.

2.

For offenses cognizable by the Sandiganbayan in the exercise of its

original jurisdiction, the records should be remanded to the
Ombudsman, since it is the latter that has primary jurisdiction to
investigate, file and prosecute said cases.'

3.

The rule recognize the right of a party to appeal to the Secretary of

Justice and requires that the parties be notified of the
recommendation of the action to be taken thereon.
Under Sec. 11 of Rule 116, among the grounds for suspension of the
arraignment is when:
"(c) A petition for review of the prosecutor's resolution is pending at
either the department of justice or the office of the president:
Provided, That the period of suspension shall not exceed sixty
(60) days counted from the filing of the petition with the
reviewing office."

Role of the Prosecutor

Prosecutors should not allow, and should avoid giving the
impression that their noble office is being used or prostituted,
wittingly or unwittingly, for the political ends or other purposes
alien to, or subversive of, the basic and fundamental objective of

serving the interest of justice even-handedly, without fear or

favor to any and all litigants alike, whether rich or poor, weak or
strong, powerless or mighty.
Only by strict adherence to the established procedure may the
public's perception of the impartiality of the prosecutor be
enhanced.

121

Officer Conducting Preliminary Investigation Must be Impartial

An indispensable requisite of due process is that the person who

presides and decides over a proceeding, including a preliminary
investigation, must possess the cold neutrality of an impartial
judge.
Although such a preliminary investigation is not a trial and is not
intended to usurp the function of the trial court, it is not a casual
affair.
The officer conducting the same investigates or inquires into the
facts concerning the commission of the crime with the end in
view of determining whether or not an information may be
prepared against the accused.
Indeed, a preliminary investigation is in effect a realistic judicial
appraisal of the merits of the case. Sufficient proof of the guilt of
the accused must be adduced so that when the case is tried, the
trial court may not be bound as a matter of law to order an
acquittal.
A preliminary investigation has then been called a judicial
inquiry.
It is a judicial proceeding.
An act becomes judicial when there is opportunity to be heard
and for the production and weighing of evidence, and a decision
is rendered thereon.
The authority of a prosecutor or investigating officer duly
empowered to preside or conduct a preliminary investigation is
no less than that of a municipal judge or even a regional trial
court judge.
While the investigating officer, strictly speaking, is not a "judge,"
by the nature of his functions, he is and must be considered to
be a quasi-judicial officer.
It should be realized that when a man is hailed to court on a
criminal charge, it brings in its wake problems not only for the
accused but for his family as well.
Therefore, it behooves a prosecutor to weigh the evidence
carefully and to deliberate thereon to determine the existence of
prima facie case before filing the information in Court.

Discretion of Prosecutor
The investigating fiscal has discretion to determine the specificity
and adequacy of averments of the offense charged.

The designation of the offense by the Fiscal is not binding upon

the Court.
Remedies if There is No Preliminary Investigation

He may dismiss the complaint forthwith if he finds it to be

insufficient in form or substance or if he otherwise finds no
ground to continue with the inquiry, or proceed with the
investigation if the complaint is, in his new, in due and proper
form.
It is not his duty to require a more particular statement of the
allegations of the complaint merely upon the respondents'
motion and specially where, after an analysis of the complaint
and its supporting statements, he finds it sufficiently definite to
apprise the respondents of the offenses with which they are
charged.
The institution of a criminal action depends upon the sound
discretion of the fiscal. He has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in
court.
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal
Procedure, the Information shall be prepared by the
Investigating Prosecutor against the respondent only if he or she
finds probable cause to hold such respondent for trial.
The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the
respondent despite absence of evidence showing probable cause
therefor.
Duty of Investigation Fiscal; Effect of Absence of Certification

If a preliminary investigation was actually conducted, the

absence of certification by the investigating fiscal that it was
conducted is not fatal.
Absence of certification as to holding of Preliminary Investigation
does not affect validity of information.
The certification "that a preliminary investigation has been
conducted in this case; that there is a reasonable ground to
engender a well-founded belief that a crime has been committed
and that the accused are probably guilty thereof is sufficient.

Anything less would be a dereliction of duty.

The failure to state therein that the accused was informed of the
complaint and was given an opportunity to submit controverting
evidence is fatal and untenable.

The officer who review a case on appeal should not be the same
person whose decision is under review.

Designation of Offense by Fiscal Not Binding Upon Court

122

Absence of preliminary investigation does not impair the validity

of information.
It is not a ground for a motion to quash.
Absence of Preliminary Investigation is not a ground for motion
to quash.
Dismissal for lack of Preliminary Investigation is not allowed,
The remedy is to hold in abeyance proceedings and order the
Fiscal to hold preliminary Investigation
The same principles were stressed in Torralba v. Sandiganbayan.
Proper Forum to Raise Absence of Preliminary Investigation

The proper forum before which absence of preliminary

investigation should be ventilated is the Regional Trial Court and
not the Supreme Court. Absence of a preliminary investigation
does not go to the jurisdiction of the court but merely to the
regularity of the proceedings that could be waived.
Habeas Corpus Not a Remedy
If there was no preliminary investigation, the remedy is not a
petition for habeas corpus but a motion before the trial court to
quash the warrant of arrest, and/or the Information on grounds
provided
by
the
Rules,
or
to
ask
for
an
investigation/reinvestigation of the case.
Habeas corpus would not lie after the Warrant of Commitment
was issued by the Court on the basis of the Information filed
against the accused. So it is explicitly provided for by Section 14,
Rule 102 of the Rules of Court x x x.
Ilagan was a reiteration of the Supreme Court's ruling in People
v. Casiano.
The same rule was reiterated in Doromal v. Sandigabayan.

If there was no preliminary investigation, the accused must

(a) refuse to enter a plea upon arraignment and object to
further proceedings upon such ground;
(b) insist on preliminary investigation;
(c) file certiorari if refused;
(d) raise lack of preliminary investigation as error on appeal;
(e) file prohibition.
When Habeas Corpus allowed
Habeas Corpus was allowed as a remedy for irregular preliminary
investigation conducted by a municipal judge in a murder case,
who without legal authority for being disqualified as a relative
within the 3rd degree and without proper preliminary
examination ordered the issuance of a warrant of arrest as a
consequence of which accused was illegally detained.
The judge then remanded the case to the provincial prosecutor
who was then held as without authority to lift the warrant of
arrest.
The judge was considered, as in construe five custody of the
accused, by virtue of an illegal warrant of arrest.
Appeals to the Secretary of Justice

or sanctions the filing of an information based upon a complaint

where he is not convinced that the evidence would warrant the
filing of the action in court.
As he has the power of supervision and control over prosecuting
officers, the Minister of Justice has the ultimate power to decide
which as between conflicting theories of the complainant and the
respondents should be believed.
Thus, the DOJ Order allows the filing of an Information in court
after the consummation of the preliminary investigation even if
the accused can still exercise the right to seek review of the
prosecutor's recommendation with the Secretary of Justice.
Power of Secretary to Review
The power of the Secretary of Justice to review resolutions of his
subordinates even after the information has already been filed in
court is well settled.
In Marcelo v. Court of Appeals, reiterated in Roberts v. Court of
Appeals, the Court clarified that nothing in Crespo v. Mogul,
forecloses the power or authority of the Secretary of Justice to
review resolutions of his subordinates in criminal cases despite
an information already having been filed in court.

commission of acts; review, approve, reverse or modify acts and decisions

of subordinate officials or units; x x x.'

Supplementing the aforequoted provisions are Section ofR.A.

No. 3783 and Section 37 of Act 4007, which read:
'Section 3. x x x
The Chief State Prosecutor, the Assistant Chief Stat( Prosecutors, the
Senior State Prosecutors, and the Statt Prosecutors shall x x x perform
such other duties as may be assigned to them by the Secretary of Justice
in the in terest of public service.'

SECTION 37. THE PROVISIONS OF THE EXISTING LAW TO

TH( CONTRARY NOTWITHSTANDING, WHENEVER A
SPECIFIC POWER AUTHORITY, DUTY, FUNCTION, OR
ACTIVITY IS ENTRUSTED TO A CHIEF OF BUREAU, OFFICE,
DIVISION
OR
SERVICE,
THE
SAME
SHALL
B( UNDERSTOOD AS ALSO CONFERRED UPON THE PROPER
DEPARTMENT HEAD WHO SHALL HAVE AUTHORITY TO
ACT DIRECTLY IN PURSUANCE THEREOF, OR TO REVIEW,
MODIFY, OR REVOKE ANY DECISION OR ACTION OF SAID
CHIEF OF BUREAU, OFFICE, DIVISION OR SERVICE."
'SUPERVISION' AND 'CONTROL' OF A DEPARTMENT HEAD
OVER HIS SUBORDINATES HAVE BEEN DENNED IN
ADMINISTRATIVE LAW AS FOLLOWS:

Nature of Justice Secretary's Power of Control over prosecutors

The power of supervision and control by the Minister of Justice

over the fiscals cannot be denied.
As stated in Noblejas v. Sales, "Section 79 of the Revised
Administrative Code defines the extent o a department
secretary's power.
The power of control therein contemplated means (the power of
the department head) to alter, modify or nullify or set aside
what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of
the latter.
The power of control implies the right of the President (and,
naturally, of his alter ego) to interfere in the exercise of such
discretion as may be vested by law in the officers of the national
government, as well as to act in lieu of such officers."
For, while it is the duty of the fiscal to prosecute persons who,
according to evidence received from the complainant, are shown
to be guilty of a crime, the Minister of Justice is likewise bound
by his oath of office to protect innocent persons from
groundless, false or serious prosecution.
He would be committing a serious dereliction of duty if he orders

The nature of the Justice Secretary's power of control over

prosecutors was explained in Ledesma u. Court of Appeals, in
this wise:
"DECISIONS OR RESOLUTIONS OF PROSECUTORS ARE
SUBJECT TC APPEAL TO THE SECRETARY OF JUSTICE
WHO, UNDER THE REVISED ADMINISTRATIVE CODE
EXERCISES THE POWER OF DIRECT CONTROL AND
SUPERVISION OVER SAID PROSECUTORS; AND WHO MAY
THUS AFFIRM; NULLIFY, REVERSE OR MODIFY THEIR
RULINGS.
SECTION 39, CHAPTER 8, BOOK IV IN RELATION TO
SECTION[S] 5; 8, AND 9, CHAPTER 2, TITLE III OF THE
CODE GIVES THE SECRETARY OF JUSTICE SUPERVISION
AND CONTROL OVER THE OFFICE OF THE CHIEF PROSECUTOR AND THE PROVINCIAL AND CITY PROSECUTION
OFFICES.

'IN
ADMINISTRATIVE
LAW,
SUPERVISION
MEANS
OVERSEEING OR THE POWER OR AUTHORITY OF AN
OFFICER TO SEE THAT SUBORDINATE OFFICERS PERFORM
THEIR DUTIES.
If the latter fail or neglect to fulfill them, the former may take such action
or step as prescribed by law to make them perform such duties.
Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for
that of the latter.'

Review as an act of supervision and control by the justice

secretary over the fiscals and prosecutors finds basis in the
doctrine of exhaustion of administrative remedies which holds
that mistakes, abuses or negligence committed in the initial
steps of an administrative activity or by an administrative
agency should be corrected by higher administrative authorities,
and not directly by courts.

The scope of his power of supervision and control is delineated in Section

38, paragraph 1, Chapter 7, Book IV of the Code:

As a rule, only after administrative remedies are exhausted may

judicial recourse be allowed."

'(1) Supervision and Control. Supervision and control shall include

authority to act directly whenever s specific function is entrusted by law or
regulation to a subordinate; direct the performance of duty; restrain the

Hence, after the Resolution of the provincial fiscal have already

been affirmed the resolution of the Prosecutor which in effect is

123

a finding of the Secretary of Justice himself as to the existence

of probable cause to hold the accused for trial, the Fiscal should
not conduct another reinvestigation and the court should not
entertain the same.

Appeals, that there is nothing in Crespo v. Mogul which bars the

DOJ from taking cognizance of an appeal, by way of a petition
for review, by an accused in a criminal case from an unfavorable
ruling of the investigating prosecutor.

The Secretary of Justice who has the power of supervision and

control over prosecuting officers, is the ultimate authority who
decides which of the conflicting theories of the complainants and
the respondents should be believed.

It merely advised the DOJ to, "as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the
fiscal, when the complaint or information has already been filed
in Court."

The provincial or city prosecutor has neither the personality nor

the legal authority to review or overrule the decision of the
Secretary.

The Secretary of Justice is only enjoined to refrain, as far as

practicable, from entertaining a petition for review or appeal
from the action of the prosecutor once a complaint or
information is filed in court.

A motion for reinviestigation on the ground of newly discovered

evidence must be filed before the Secretary of Justice rules on
an appeal from a resolution in a preliminary investigation.
The Court still reiterated in the 2005 case of Serag, the 1994
case of Marcelo for the Court to suspend the proceedings until
after the Secretary of Justice had resolved the motion with
finality and cited Section 7 of DOJ Circular No. 70 which
provides:
SECTION 7. Action on the petition. The Secretary of Justice may
dismiss the petition outright if he finds the same to be patently without
merit or manifestly intended for delay, or when the issues raised therein
are too unsubstantial to require consideration.

In any case, the grant of a motion to dismiss, which the

prosecution may file after the Secretary of Justice reverses an
appealed resolution, is subject to the discretion of the court.
In Roberts, the Court went further by saying that Crespo could
not have foreclosed said power or authority of the Secretary of
Justice "without doing violence to, or repealing, the last
paragraph of Section 4, Rule 112 of the Rules of Court."
While the section speaks of resolutions dismissing a criminal
complaint, petitioners were not barred from appealing from the
resolution holding that only homicide was committed,
considering that their complaint was for murder.

If an information has been filed in court pursuant to the appealed

resolution, the petition shall not be given due course if the accused had
already been arraigned. Any arraignment made after the filing of the
petition shall not bar the Secretary of Justice from exercising his power of
review.

By holding that only homicide was committed, the Provincial

Prosecutor's Office ofPampanga effectively "dismissed" the
complaint for murder. Accordingly, petitioners could file an
appeal under said Section 1.

More importantly, the ruling in Solar Entertainment, Inc. v. Haw,

that the thirty-day period to suspend the arraignment (as
provided for in Section 2 of Circular No. 38-98) is not absolute
was reiterated in the 2006 case of Lumanlaw v. Peralta, Jr.

To rule otherwise would be to forever bar redress of a valid

grievance, especially where the investigating prosecutor,
demonstrated what unquestionably appeared to be unmitigated
bias in favor of the accused.

Secretary of Justice to Refrain Only as Far as Practicable from Review of

Cases Already Filed in Court

Section 1 is not to be literally applied in the sense that appeals

by the offended parties are allowed only in case of dismissal of
the complaint, otherwise the last paragraph of Section 4, Rule
112, Rules of Court would be meaningless.

In Dee v. Court of Appeals, the Supreme Court reiterated its

pronouncement in Crespo v. Mogul, that the Secretary of Justice
as far as practicable, should refrain from entertaining a petition
for review of appeal from the action of the fiscal, when the
complaint or information has already been filed in court.
The matter should be left entirely for the determination of the
Court.
The Court, however, clarified en bane in Roberts v. Court of

Need to Defer Arraignment if DOJ had Already Given Due Course to

Appeal

Where the DOJ had already given due course to the petitioner's
petition for review, it was premature for respondent judge to
deny the motions to suspend proceedings and to defer
arraignment on the ground that "since the case is already
pending for trial, to follow whatever opinion the Secretary of

124

Justice may have on the matter would

independence and integrity of this court."

undermine

the

Thus the complainant cannot be stripped of the Secretary's

authority to act on and resolve the motion of the private
complainant on the Prosecutor's insistence that the accused be
arraigned on June 6, 2002.
Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of
Justice may resolve the said motion despite the arraignment of
the petitioners.
Once a petition for review is filed with the DOJ it behooved the
RTC to suspend the proceedings until after the Secretary of
Justice had resolved the motion with finality, including the
consideration of the motion of the Provincial Fiscal for the
admission of the Second Amended Information for homicide, the
dismissal of Criminal Case No. 926 and the arraignment of the
Petitioner for homicide. The court reiterated its earlier ruling in
Marcelo v. Court of Appeals (supra).
COMPARE
Under Section ll(c) of Rule 116 the period of suspension shall not exceed
sixty (60) days counted from the filing of the petition with the reviewing
office. (This is a new Rule under the 2000 Rules on the Revised Rules of
Criminal Procedure.)
The period of suspension shall not exceed sixty (60) days counted from
the filing of the petition with the reviewing office after the expiration of
said period, the trial court is bound to arraign the accused or to deny the
motion to defer arraignment.
Despite the foregoing provision and ruling, the Court in the 2005 case
ofSerag (supra) reiterated the 1994 ruling in the case ofMarcelo (supra)
for the Court to suspend the proceedings until after the Secretary of
Justice had resolved the motion with finality and cited Section 7 ofDOJ
Circular No. 70 which provides:
SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition
outright if he finds the same to be patently without merit or manifestly intended for
delay, or when the issues raised therein are too unsubstantial to require consideration.

If an information has been filed in court pursuant to the appealed

resolution, the petition shall not be given due course if the accused had
already been arraigned.
Any arraignment made after the filing of the petition shall not bar the
Secretary of Justice from exercising his power of review.
This may be interpreted to mean that while the Court may not suspend
the arraignment beyond the 60 day limitation, it may still suspend the
trial pending final resolution by the DOJ.
Under the Speedy Trial Rule any period of delay resulting from other
proceedings concerning the accused including but not limited to those

enumerated in Section 3 of Rule 119 in computing the time within which

trial must commence shall be excluded
f)
Any period of delay resulting from a continuance granted by any court motu
proprio, or on motion of either the accused or his counsel, or the prosecution, if the
court granted the continuance on the basis of his findings set forth in the order that
the ends of justice served by taking such action outweigh the best interest of the
public and the accused in a speedy trial.*9

The Supreme Court stressed that the real and ultimate test of the
independence and integrity of the court is not the filing of the motion to
suspend at that stage of the proceedings but the filing of a motion to
dismiss or to withdraw the information on the basis of a resolution of the
petition for review reversing the Joint Resolution of the investigating
prosecutor.

The preliminary investigation proper whether or not there is reasonable

ground to believe that the accused is guilty of the offense charged and,
therefore, whether or not he should be subjected to the expense, rigors
and embarrassment of trial is the function of the Prosecutor.
Preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of
the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature.
It is part of the prosecution's job.

Before that time, the pronouncement in Crespo v. Mogul, that "once a

complaint or information is filed in court any disposition of the case as its
dismissal or the conviction of accused or acquittal of the accused rests in
the sound discretion of the court," did not yet become relevant or
applicable.

The second kind of preliminary investigation which is more properly called

preliminary examination is judicial in nature and is lodged with the judge."

However, once a motion to dismiss or withdraw the information is filed the

trial judge may grant or deny it, not out of subservience to the Secretary
of Justice, but in faithful excercise of judicial nrerogative on the duty of
the trial judge to make an independent assessment and finding of the
evidence, it not being sufficient for the valid and proper excercise of
judicial discretion merely to accept the prosecution's word for its supposed
insufficiency.

The Court thus pointed out that ordinarily, the determination of

probable cause is not lodged with this Court.

In the absence of such a finding, the order of the court denying or

granting the motion is void.
The procedure of appeals to the Secretary of Justice were consolidated
and modified by Department of Justice Circular No. 70 dated July 3, 2000
entitled 2000 NFS RULE ON APPEAL (Appendix F) and Department Circular
No. 70-A dated July 10, 2000 DELEGATION OF AUTHORITY TO REGIONAL
STATE PROSECUTORS TO RESOLVE APPEALS IN CERTAIN CASES.
Determination of Probable Cause, Either Executive or Judicial Prerogative

In criminal prosecutions, the determination of probable cause

may either be an executive or judicial prerogative. In People v.
Inting, the Court aptly stated:
"JUDGES
AND
PROSECUTORS
ALIKE
SHOULD
DISTINGUISH THE PRELIMINARY INQUIRY WHICH
DETERMINES PROBABLE CAUSE FOR THE ISSUANCE OF A
WARRANT
OF
ARREST
FROM
A
PRELIMINARY
INVESTIGATION PROPER WHICH ASCERTAINS WHETHER
THE OFFENDER SHOULD BE HELD FOR TRIAL OR
RELEASED.
Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives.
The determination of probable cause for the warrant of arrest is made by
the Judge.

Determination of Probable Cause Not a Supreme Court Function:

Exceptions

Its duty in an appropriate case is confined to the issue of

whether the executive or judicial determination, as the case may
be, of probable cause was done without or in excess of
jurisdiction with grave abuse of discretion amounting to want of
jurisdiction.
This is consistent with the general rule that criminal prosecutions
may not be restrained or stayed by injunction, preliminary or
final.
There are, however, exceptions to the rule, among which were
enumerated in Brocka v. Enrile, as follows:
a.

To afford adequate protection to the constitutional rights of

the accused;

b.

When necessary for the orderly administration of justice or

to avoid oppression or multiplicity or actions;

c.

When there is a prejudicial question;

d.

When the acts of the officer are without or in excess of

authority;

e.

Where the prosecution is under an invalid law, ordinance or

regulation;

f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

125

h.

Where it is a case of persecution rather than prosecution;

i.

Where the charges are manifestly false and motivated by

the lust for vengeance;

j.

When there is clearly no prima facie case against the

accused and a motion to quash on that ground has been
denied; and

k.

Preliminary injunction has been issued by the Supreme

Court to prevent the threatened unlawful arrest of
petitioners.

In these exceptional cases, the Court may ultimately resolve the

existence or non-existence of probable cause by examining the
records of the preliminary investigation, and may also restrain a
preliminary investigation.
The Court in the "349" Pepsi-Cola cases recognized the several
thousands of complainants in Criminal Case No. Q-93-43198 (in
which the order of arrest was appealed to the DOJ), and several
thousands more in different parts of the country who are
similarly situated as the former for being holders of "349" Pepsi
crowns, any affirmative holding of probable cause in the said
case nay cause or provoke, the filing of several thousand cases
in various courts throughout the country.
Inevitably, the petitioners would be exposed to the harassments
of warrants of arrest issued by such courts and to huge
expenditures for premium on the bail bonds and for travels from
one court to another throughout the length and breath of the
archipelago for their arraignments and trials in such cases.
Worse, the filing of these staggering number of cases would
necessarily affect the trial calendar of our overburdened judges
and take much of their attention, time and energy, which they
could devote to other equally, if not more, important cases.
Such a frightful scenario would seriously affect the orderly
administration of justice, or cause oppression or multiplicity of
actions a situation already long conceded to be an exception
to the general rule that criminal prosecutions may not be
restrained or stayed by injunction.
The Court, however, refused to reevaluate the evidence to
determine if indeed there is probable cause for the issuance of
warrants of arrest in Criminal Case No. 93-43298, as it did, in
Allado and Webb for, as reasoned out by the Court, the
respondent Judge did not, in fact, find that probable cause
exists, and if he did he did not hrve the basis therefor as
mandated by Soliven, Inting, Lim, Allado, and even Webb.

Moreover, the records of the preliminary investigation are not

with the court but with the DOJ.
The Supreme Court held that the trial court and the DOJ must be
required to perform their duty.
The Court, therefore directed the DOJ to resolve on the merits,
petitioner's petition for review of the Joint Resolution of the
Investigating prosecutors and thereafter file the appropriate
motion or pleading before respondent Judge which he shall then
resolve in the light of Crespo v. Mogul.
In the meantime, respondent Judge was directed to cease and
desist from further proceeding with the criminal case and to
defer the issuance of warrants of arrest against the petitioners.
Under section ll(c), Rule 116, Upon motion of the proper party,
the arraignment shall be suspended when a petition for review of
the resolution of the prosecutor is pending at either the
Department of Justice or the office of the President;
Provided, That the period of suspension shall not exceed sixty
(60) days counted from the filing of the petition with the
reviewing office.
Determination of Probable Cause in Preliminary Investigation Exclusively
Pertains to Prosecutor

In a separate opinion. Chief Justice Narvasa expressed

concurrence with the disposition of the case, that the
determination of whether or not probable cause exists to warrant
the prosecution in court of the petitioners should be consigned
and entrusted to the Department of Justice as reviewer of the
findings of the public prosecutor. Further elucidating on his
reasons, the Chief Justice stated:
"IN THIS SPECIAL CIVIL ACTION, THIS COURT IS BEING
ASKED TO ASSUME THE FUNCTION OF A PUBLIC
PROSECUTOR.
IT IS BEING ASKED TO DETERMINE WHETHER PROBABLE
CAUSE EXISTS AS REGARDS PETITIONERS.
More concretely, the Court is being asked to examine and assess such
evidence as has thus far been submitted by the" parties and, on the basis
thereof, make a conclusion as to whether or not it suffices 'to engender a
well founded belief that a crime has been committed and that the
respondent is probably guilty thereof and should be held for trial.'"

It is a function that this Court should not be called upon to

perform.
It is a function that properly pertains to the public prosecutor,

one that, as far as crimes cognizable by a Regional Trial Court

are concerned, and notwithstanding that it involves an
adjudicative process of a sort exclusively pertains, by law, to
said executive officer, the public prosecutor.
It is moreover a function that in the established scheme of
things, is supposed to be performed at the very genesis of
indeed, prefatorily to, the formal commencement of a criminal
action.
The proceedings before a public prosecutor, it may well be
stressed, are essentially preliminary, prefatory, and cannot lead
to a final, definite and authoritative adjudgment of the guilt or
innocence of the persons charged with a felony or crime.
Whether or not that function has been correctly discharged by
the public prosecutor i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a
case is a matter that the trial court itself does not and may
not be compelled to pass upon.
There is no provision of law authorizing an aggrieved party to
petition for such a determination.
It is not for instance permitted for an accused, upon the filing of
an information against him by the public prosecutor, to pre-empt
trial by filing a motion with the Trial Court praying for the
quashal or dismissal of the indictment on the ground that the
evidence upon which the same is based is inadequate.
Nor is it permitted, on the antipodal theory that the evidence is
in truth adequate, for the complaining party to present a petition
before the Court praying that the public prosecutor be compelled
to file the corresponding information against the accused.
(N.B.: Where, however, the public prosecutor finds that probable
cause exists as regards several suspects but unaccountably files
the information only against some, but not all of them,
mandamus will lie to compel him to include in the indictment
those he has excluded.)
Besides, the function that this Court is asked to perform is that
of a trier of facts which it does not generally do, and if at all,
only exceptionally, as in an appeal in a criminal action where the
penalty of life imprisonment, reclusion perpetua, or death has
been imposed by a lower court (after due trial, of course), or
upon a convincing showing of palpable error as regards a
particular factual conclusion in the judgment of such lower court.
What, in sum, is being attempted in this Court is to reverse the
established and permanent order of things for the Court to act
before trial and judgment by a lower tribunal; to require it to
perform the role of trier of facts which, to repeat, it does not
generally do, the issues properly cognizable by it being normally
limited exclusively to questions of law to make it do something
that even the trial court may not do at this stage of the

126

proceedings itself to determine the existence of probable

cause; to usurp a duty that exclusively pertains to an exclusive
official (supra, at note 3) to conduct a preliminary investigation
or review the findings and conclusions of the public prosecutor
who conducted one.
The matter is not within the review jurisdiction of the Court as
this is clearly specified in the Constitution, a jurisdiction which
even the Congress may not increase "without * * * (the Court's)
advice and concurrence."
From the pragmatic aspect, it is also an undesirable thing, for
the result could well increase the already considerable work load
of the Court.
Furthermore, any judgment of this Court in this action would be
inconclusive, as above intimated. It would not necessarily end
the case.
It would not, for instance, prevent the complaining witnesses
from presenting additional evidence in an effort to have the
information ultimately filed in the proper court against the
accused, or the respondents from asking for a reinvestigation
and presenting additional or other evidence warranting the
dropping of the case.
The Court would thus have wielded judicial power without a
definite settlement of rights and liabilities.
There are set rules, and procedural mechanisms in place for the
determination of probable cause at the level of the public
prosecutor, the Department of Justice and, to a certain extent,
the Regional Trial Court.
No recourse to this Court should normally be allowed to
challenge their determinations and dispositions.
I therefore vote to refer to the Department of Justice for
resolution, the petition for the review of the Joint Resolution
issued by Investigating Prosecutor Ramon Gerona.
Finding of Probable Cause by Prosecutor To hold Accused For Trial
Distinguished From Finding of Probable Cause of Judge To Issue Warrant

The foregoing disquisition of the Chief Justice should, however,

be taken in the light of the distinction of whether the preliminary
investigation is an investigation for the determination of a
sufficient ground for the filing of the information or it is an
investigation for the determination of a probable cause for the
issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature.

It is part of the prosecution's job.

The second kind of preliminary investigation which is more
properly called preliminary examination is judicial in nature and
is lodged with the judge, but it is only after the first kind have
been exhausted, that the second kind comes in and the Crespo
rule applies.
Before that time, the pronouncement in Crespo that "any
disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the discretion of the court "is
not yet relevant and applicable.
When the second kind comes in, the court must, then exercise
independent judgment, personally evaluate the documents and
evidence adduced before the Fiscal, and determine for itself the
existence of probable cause for the issuance of warrants of
arrest.
If there is a motion to dismiss or withdraw the information, the
court must exercise its judicial prerogative, make an
independent assessment of the evidence and make its own
findings it not being sufficient for the valid and proper exercise
of judicial discretion merely to accept the prosecution's word for
its supposed insufficiency.
Finding by Judge of Probable Cause Not Subject to Judicial Review

Moreover, a finding probable cause by the judge for purposes of

issuing a warrant of arrest after an evaluation of the documents
and other supporting evidence, should no longer, in the
meantime, be subject to judicial review, except in the regular
course of appeal, for to paraphrase the Chief Justice in his
separate opinion, that would be asking the court to examine and
assess such evidence as has thus far been submitted by the
parties, before the trial, and, on the basis thereof make a
conclusion as whether or not, it suffices to establish the guilt of
the accused.
There are set of rules, and procedural mechanisms in place for
the determination of probable cause at the level of the public
prosecutor, the Department of Justice and, to a certain extent,
the Regional Trial Court. No recourse to the higher court should
normally be allowed to challenge their determinations and
dispositions.

As a general rule, if the information is valid on its face and there

is no showing of manifest error, grave abuse of discretion or
prejudice on the part of public prosecutor courts should not
dismiss it for want of evidence.
Remedy Where Minister of Justice Refuses Filing of Case

The remedy of complainant in a case where the Minister of

Justice would not allow the filing of a criminal complaint against
an accused because it is his opinion that the evidence is not
sufficient to sustain an information for the complaint with which
the respondents are charged of, is to file a civil action as
indicated in Article 35 of the Civil Code, which provides:
"ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED BY
A CRIMINAL OFFENSE, CHARGES ANOTHER WITH THE
SAME, FOR WHICH NO INDEPENDENT CIVIL ACTION IS
GRANTED IN THIS CODE OR ANY SPECIAL LAW, BUT THE
JUSTICE OF THE PEACE FINDS NO REASONABLE GROUNDS
TO BELIEVE THAT A CRIME HAS BEEN COMMITTED, OR
THE PROSECUTING ATTORNEY REFUSES OR FAILS TO
INSTITUTE CRIMINAL PROCEEDINGS, THE COMPLAINANT
MAY BRING A CIVIL ACTION FOR DAMAGES AGAINST THE
ALLEGED OFFENDER.
SUCH CIVIL ACTION MAY BE SUPPORTED BY A
PREPONDERANCE OF EVIDENCE. UPON THE DEFENDANT'S
MOTION, THE COURT MAY REQUIRE THE PLAINTIFF TO
FILE A BOND TO INDEMNIFY THE DEFENDANT IN CASE
THE COMPLAINT SHOULD BE FOUND TO BE MALICIOUS."
If during the pendency of the civil action, an information should
be presented by the prosecuting attorney, the civil action shall
be suspended until the termination of the criminal proceedings.
Availability of Appeal From DOJ
The Resolution of the DOJ Secretary is appealable administratively to the Office of the President where the offense charged is
punishable by Reclusion perpetua.
(From the Office of the President the aggrieved party may file
an appeal with the Court of Appeals pursuant to Rule 43
[Supra])

Findings of Probable Cause as Prosecutors Entitled to Highest Respect

The prosecutor's finding of probable cause is entitled to highest

respect.
This is a function that the court should not be called upon the
perform.

Unavailability of Mandamus or Certiorari To Compel Filing of Cases

In Lim u. Court of Appeals, the Court reiterated the rule of long

standing that the matter of deciding who to prosecute is a
prerogative of the prosecuting fiscal as a quasi-judicial officer,
who assumes full discretion and control of the case and this

127

faculty may not be interfered with, for a prosecution may not be

compelled by mandamus to file a criminal information where he
is convinced that he does not have the necessary evidence
against an individual, x x x."
While the prosecuting officer is required by law to charge all
bhose who, in his opinion, appear to be guilty, he nevertheless
cannot be compelled to include in the information a person
against whom he believes no sufficient evidence of guilt exists.
The appreciation of the evidence involves the use of discretion
on the part of the arosecutor.
The decision of the prosecutor may be reversed or modified by
the Secretary of Justice or in special cases by the President of
the Philippines.
But even the Supreme Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case.
The courts try and absolve or convict the accused but as a rule
have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable
showing of a grave abuse of discretion that will justify judicial
intrusion into the precincts of the executive.
But in such a case, the proper remedy to call for such exception
is a petition for mandamus, not certiorari or prohibition.
Moreover, before resorting to this relief, the party seeking the
inclusion of another person as a co-accused in the same case
must first avail itself of other adequate remedies such as the
filing of a motion for such reconsideration of decision.
The rule is thus settled that the court's duty in an appropriate
case is confined to determining whether the executive or judicial
determination, as the case may be, of probable cause was done
without or in excess of jurisdiction or with grave abuse of
discretion.
Thus, although it is entirely possible that the investigating fiscal
may erroneously exercise the discretion lodged in him by law,
this does not render his act amenable to correction and
annulment by the extraordinary remedy of correction and
annulment by the extraordinary remedy of certiorari, absent any
showing of grave abuse of discretion amounting to excess of
jurisdiction.
The remedy of mandamus does not lie to compel public
respondents to file an Information against private respondents.
There being no showing of grave abuse of discretion on the part
of public respondents which would warrant the overturning of
their decision to dismiss the complaint against the private

respondents, corollarily, there is also no ground to issue a writ

of mandamusl
Where the preliminary investigation falls under the first kind, the
decision whether or not to dismiss the complaint against private
respondents is necessarily dependent on the sound discretion of
the prosecuting fiscal, and ultimately that of the Secretary or
Undersecretary (acting for the Secretary) of Justice (which
ordinarily is not compellable by mandamus.
Exception When Mandamus Available
However, if government prosecutors make arbitrary choices of
those they would prosecute under a particular law, excluding
from the indictment certain individuals against whom there is the
same evidence as those impleaded, the fault is not in the law but
in the prosecutors themselves whose duty it is to file the
corresponding information or complaint against all persons who
appear to be liable for the offense involved, a duty that should
be performed responsibly, without discrimination, arbitrariness
or oppression.
If that duty is not performed evenhandedly, the persons
aggrieved are not without remedy.
They may avail of the remedy of mandamus to compel
compliance with that duty by the prosecutors concerned.
NOTE: It was held in Yap u. IAC, that certiorari does not lie to
annul the Municipal judge's order finding probable cause that the
accused committed the crime charged and consequently ordering
their arrest.
Remedies are:
(1)
(2)
(3)
(4)

posting bail;
ask provincial fiscal for reinvestigation;
petition for review;
motion to quash information;
(5) if denied appeal, the judgment after trial.104
Exception When Certiorari as a Remedy Allowed
However, certiorari was allowed as a remedy to annul dismissal
of the petition for review by the Secretary of Justice for lack of
jurisdiction since the dispute involves an intra-corporate one
which (then) falls under the jurisdiction of the Securities and
Exchange Commission.
Certiorari was allowed also to annul the Order of the ETC Judge
for the issuance of warrant of arrest on the ground that there
was no probable cause.

Summing up, the Court in Ching v. The Secretary of Justice

held:
In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court held
that the acts of a quasi-judicial officer may be assailed by the aggrieved
party via a petition for certiorari and enjoined:
(a)
when necessary to afford adequate protection to the
constitutional rights of the accused;
(b)
when necessary for the orderly administration of
justice;
(c)
when the acts of the officer are without or in excess
of authority;
(d)
where the charges are manifestly false and motivated
by the lust for vengeance; and
(e)
when there is clearly no prima facie case against the
accused.
The Court also declared that, if the officer conducting a preliminary
investigation (in that case, the Office of the Ombudsman) acts without or
in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of
certiorari.
If the Secretary of Justice reverses the Resolution of the Investigating
Prosecutor who found no probable cause to hold the respondent for trial,
and orders such prosecutor to file the Information despite the absence of
probable cause, the Secretary of Justice acts contrary to law, without
authority and/or in excess of authority.
Such resolution may likewise be nullified in a petition for certiorari under
Rule 65 of the Revised Rules of Civil Procedure.

compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law.
Not only under the broad umbrella of the due process clause, but
under the constitutional guarantee of "speedy disposition" of
cases as embodied in Section 16 of the Bill of Rights (both in the
1973 and the 1987 Constitution), the inordinate delay is violative
of the accused's constitutional rights.
A delay of close to three (3) years cannot be deemed reasonable
or justifiable in the light of the circumstances obtaining in the
case.
The suggestion that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete
absence of a preliminary investigation does not warrant
dismissal of the information, is without merit.
The absence of a preliminary investigation can only be corrected
by giving the accused such investigation.
But an undue delay in the conduct of preliminary investigation
cannot be corrected, for until now, man has not yet invented a
device for setting back the time.
The principle is not, however, applicable where the delay in the
termination of the preliminary investigation cannot be imputed
solely to the prosecution but because of incidents which are
attributable to the accused and his counsel.

In the same manner, just as the Court may resolve to overrule the finding
of probable cause as in Allado v. Diokno, the Court may also overrule the
decision of the judge reversing a finding of probable cause, also on the
ground of grave abuse of discretion.

However, while probable cause should be determined in a

summary manner, there is a need to examine the evidence with
care to prevent material damage to a potential accused's
constitutional right to liberty and the guarantees of freedom and
fair play and to protect the State from the burden of
unnecessary expenses in prosecuting alleged offenses and
holding trials arising from false, fraudulent or groundless
charges.
Effect of Delay in Conducting Preliminary Investigation

SEC. 5.
When Warrant of Arrest may Issue
COMMENT:
a.

The provisions of the former Section 5 relating to the preliminary

investigation by a judge were deleted. Section 6 was modified (bb)
by deleting reference to preliminary investigation by the MTC are
changing the same to prosecutor accordingly transposed to Section
5.

b.

The first paragraph on the issuance of warrant of arrest by the

Regional Trial Court is in conformity with the rulings of the Supreme
Court.

The long delay in the termination of preliminary investigation by

the Tanodbayan is violative of the constitutional right of the
accused to due process.

The former Rule simply provides that a warrant of arrest may be

issued by the Regional Trial Court upon the filing of the information.
This was because before the 1987 constitution, a warrant of arrest
may be issued by the Regional Trial Court on the basis merely of the
certification of the investigating fiscal that there is probable cause.

Substantial adherence to the requirements of the law governing

the conduct of preliminary investigation, including substantial

Under the 1973 not only the Judge but also by any responsible

128

Warrant of Arrest, Defined

officer, which includes a fiscal, may determine Constitution probable

cause.
This is no longer true. Under the 1987 Constitution it is only the
judge who is authorized to determine personally the existence of
probable cause.

It is usually directed to regular officers of the law, but

occasionally, it is issued to a private person named in it.

Under this rule, the judge must determine the existence of probable
cause within ten (10) days from the filing of the information.

Warrant of arrests issued against "John Doe" whom the

witnesses to the complaint could not identify are in the nature of
a general warrant, one of a class of writs long proscribed as
unconstitutional and once anathematized as "totally subversive
of the liberty of the subject."

If the accused had already been arrested, the judge must within the
same period often (10) days determine the existence of probable
cause and issue an order of commitment.
The judge may, on the other hand, disregard the prosecutor's report
and require the submission of additional evidence to determine the
existence of probable cause. If the judge still finds no probable
cause, he shall dismiss the case.
c.

A warrant of arrest is a legal process issued by competent

authority, directing the arrest of a person or persons upon
grounds stated therein.

Hence, jurisprudence evolved, that for purposes of determining

probable cause for the issuance of a warrant of arrest, the judge
must personally evaluate the prosecutor's report, the evidence
adduced during the preliminary investigation.
These jurisprudence are now capsulized in the present rule.

This is intended to prevent prolonged detention of a person who is

arrested without a warrant, only to turn out that the arrest was not
lawful.

In cases falling under the original jurisdiction of the municipal trial

court, which require a preliminary investigation, the preliminary
investigation shall be conducted by the prosecutor
1)

If such preliminary investigation is conducted by a prosecutor,

the procedure in the preceding section (5a) on the issuance of a
warrant arrest shall be applied upon the filing ol the
information.
Under this situation, probable cause may be determined by the
Judge on the basis of the evidence adduced before the
prosecutor, which conducted the preliminary investigation.

2)

Subsection (c) is new provision. When warrant of arrest not

necessary. A warrant of arrest shall not issue if the accused is
already under detention pursuant to a warrant issued by the
municipal trial court in accordance with paragraph (b) of this
section, or if the complaint or information was filed pursuant to
section 6 of this Rule or is for an offense penalized by fine only.
The court shall then proceed in the exercise of its original
jurisdiction.
Under this subsection, a warrant of arrest need not be issued if
the accused is already under detention pursuant to a warrant
issued by the Municipal Trial Court in accordance with section
(5b) of this rule or if the complaint or information was filed
pursuant to section 6 hereof, the court shall then proceed in the
exercise of its original jurisdiction.

thereof, issue a warrant of arrest; or

(2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses ;o aid
him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges
would he unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.

John Doe Warrants

Such warrants are void because they violate the constitutional

injunction that warrants of arrest should particularly describe the
person or persons to be seized.
Judge May No Longer Rely on FiscaLs Certification

The earlier rulings of the Supreme Court which allows the Judge
in the exercise of its discretion, whether or not to determine the
existence of probable cause and issue a warrant of arrest on the
basis of the Fiscal's Certification which were capsulized in
Circular No. 12, dated November 30, 1987 have in effect been
abandoned by the Supreme Court in the light of the 1987
Constitution which provides that no search warrant or warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.
a.

b.

The doctrine was reiterated in Enrile v. Salazar, holding that

it is not the unavoidable duty of the judge to make a
personal examination, it being sufficient that he follows
established procedure by personally evaluating the report
and the supporting documents submitted by the prosecutor.
* * * the Judge does not have to personally examine the
complainant and his witnesses.
The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence.
However, there should be a report and necessary
documents supporting the Fiscal's bare certification.
All of these should be before the Judge.
The extent of the Judge's personal examination of the report
and its annexes depends on the circumstances of each case.
We cannot determine beforehand how cursory or exhaustive
the Judge's examination should be.

The withdrawal started with the case of Soliven v. Makasiar6

decided after the effectivity of the 1987 Constitution where
the Supreme Court then held that the addition of the word
"personally" after the word "determined" underscores the
exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause.

The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the
Constitution.

In satisfying himself of the existence of probable cause for

the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses.

To be sure, the Judge must go beyond the Prosecutor's

certification and investigation report whenever necessary.

Following established doctrine and procedure, he shall:

He should call for the complainant and witnesses themselves

to answer the court's probing questions when the
circumstances of the case so require.

(1) personally evaluate the report and the supporting

documents submitted by the fiscal regarding the
existence of probable cause and, in the basis

129

It can be as briefer as detailed as the circumstances of each

case require.

It is the exclusive and personal responsibility of the issuing

judge to satisfy himself of the existence of probable cause

for the issuance of a warrant of arrest, the judge is not

required to personally examine the complainant and his
witnesses.
Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of
probable cause.
In Cruz v. People (supra), petitioner would have respondent
court order the production of the records of the preliminary
investigation in its determination of the existence of
probable cause for the issuance of the warrant of arrest.
The Supreme Court held: "First and foremost, as
hereinabove stated, in a preliminary examination for the
issuance of a warrant of arrest, the court is not tasked to
review in detail the evidence submitted during the
preliminary investigation.
It is sufficient that the judge personally evaluates the report
and supporting documents submitted by the prosecution in
determining probable cause."
In Webb u. De Leon, the Supreme Court again reiterated the
doctrine in the seminal case of Soliven v. Makasiar (supra),
in the issuance of warrants of arrest by the RTC. Petitioners
in the Webb case challenged the validity of the warrants of
arrest issued in said case on the following grounds:
(1) the issuance of the warrants of arrest was made in a
matter of few hours;
(2) the failure of the judge to issue orders of arrest;
(3) the records submitted to the trial court were incomplete
and insufficient from which to base a finding of probable
cause; xxx. petitioners postulate that it was
impossible to conduct a searching examination of
witnesses and evaluation of the documents on the part
of the judge.
After pointing out the differences in the issuance of a search
warrant and a warrant of arrest and its ruling in Soliven v.
Makasiar (supra), the Supreme Court stressed that before
issuing warrants of arrest, judges merely determine

personally the probability, and not the certainty of guilt of

an accused.
In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause.
They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported
by substantial evidence.
The sufficiency of the review process cannot be measured
by merely counting minutes and hours.

Outright Dismissal
The absence of probable cause for the immediate issuance of a
warrant of arrest is not a ground for the quashal of the
information but is a ground for the dismissal of the case under
Section 5[6], Rule 112 which is without prejudice.
The trial court is mandated to immediately dismiss the case upon
finding that no probable cause exists to issue a warrant of arrest
and after having evaluated the resolution of the fiscal and
supporting information.
The Need for Personal Evaluation of Documents Not Merely Resolution

The fact that it took the judges a few hours to review and
affirm the probable cause determination of the DOJ panel
does not mean they made no personal evaluation of the
evidence attached to the records of the case.
Explaining its ruling in Allado u. Diokno, which reversed
trial court's finding of probable cause and ordered
outright dismissal of the case, the Court stated that
Allado ruling is predicated on the utter failure of
evidence to show the existence of probable cause.

the
the
the
the

Not even the corpus delicti of the crime was established by

the evidence of the prosecution in that case.
Given the clear insufficiency of the evidence on record, the
court there stressed the necessity for the trial judge to
make a further personal examination of the complainant and
his witnesses to reach a correct assessment of the existence
or non existence of probable cause before issuing warrants
of arrest against the accused.
The case at bar rests on a different factual setting.
The various types of evidence extant in the records of the
case provide substantial basis for a finding of probable
cause against the petitioners.
The Court concluded:
"Clearly then, the Constitution, the Rules of Court, and our case law
repudiate the submission of petitioners that respondent judges
should have conducted searching examination of witnesses before
issuing warrants of arrest against them.
They also reject petitioners contention that a judge must first issue
an order of arrest before issuing a warrant of arrest.
There is no law or rule requiring the issuance of an Order of Arrest
prior to a warrant of arrest."

130

The absence or presence of probable cause is to be determined

from the material avernments of the information the appendages
thereof as enumerated in Rule 112, Section 8 of the Rules.
The Courts attention was again focused on the issuance of
warrants of arrest in the en bane decision in Roberts u. Court of
Appeals, where the court emphasized the need for the court prior
to the issuance of the warrant of arrest to evaluate "the
affidavits, the transcript of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification
which are material in assisting the Judge to make his
determination of probable cause."
The teachings then of Soliven, Inting, Lim, Allado, and Webb,
reject the proposition that the investigating prosecutor's
certification in an information or his resolution which is made the
basis for the filing of the information, or both, would suffice in
the judicial determination of probable cause in the judicial
determination of probable cause for the issuance of a warrant of
arrest.
The court went on to explain that in Webb, this Court assumed
that since the respondent Judges had before them not only the
26 page resolution of the investigating panel, but also the
affidavits of the prosecution witnesses and even the counteraffidavits of the respondents, they (judges) made a personal
evaluation of the evidence attached to the records of the case.
On the Need to Make Separate Finding of Probable
It was held that where, the information was not accompanied by
any document, and there is nothing in the records or evidence
supporting the prosecutor's finding of probable cause except the
Joint Resolution as bases thereof and does not have the records
or evidence supporting the prosecutor's finding of probable
cause, the Court declared the Order for the issuance of the
warrant of arrest as invalid.

The court found it strange that there is no specific finding of

probable cause but a mere directive to issue the warrants of
arrest.
The Court rejected the argument that the directive presupposes
a finding of probable cause.
"Compliance with a constitutional requirement for the protection
of individual liberty cannot be left to presupposition, conjecture
or even convincing logic."
The Court in Roberts rejected the court of appeals' finding that
the Joint Resolution is sufficient in itself to have been relied upon
by the respondent judge in convincing himself that probable
cause indeed exists for the purpose of issuing the corresponding
warrants of arrest.
Thus: "To bolster its finding, the Court of Appeals held that the
mere silence of the records or the absence of any express
declaration in the questioned order of May 17, 1993 as to where
the respondent Judge based his finding of probable cause does
not give rise to any adverse inference on his part.
The fact remains that the Joint Resolution was at respondent
Judge's disposal at the time he issued the Order for the issuance
of the warrants of arrest.
After all, respondent Judge enjoys in his favor the presumption
of regularity in the performance of his official duties.
And this presumption prevails until it is overcomed by clear and
convincing evidence to the contrary.
Every reasonable intendment will be made in support of the
presumption, and in case of doubt as to an officer's act being
lawful or unlawful, it should be construed to be lawful."
The Court expressed its inability to agree with this disquisition,
for it merely assumes at least two things: (1) that respondent
Judge Asuncion had read and relied on the Joint Resolution; and
(2) he was convinced that probable cause exists for the issuance
of warrants of arrest against the petitioners.
Nothing in the records provides reasonable basis for these
assumptions.
In his assailed order, the respondent Judge made no mention of
the Joint Resolution, which was attached to the records of
Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he
state, he found probable cause for the issuance of warrants of
arrest.

And, for an undivinable reason, he directed the issuance of

warrants of arrest only after June 21, 1993. If he did read the
Joint Resolution and, in so reading, found probable cause, there
was absolutely no reason at all to delay for more than one
month the issuance of warrants of arrest.

the preliminary investigation were not elevated to the said

judge.

The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while
for the DOJ to resolve the petition for review.

"When Judge Asuncion issued the warrants of arrest against

petitioners, I assume as did the respondent Court of Appeals,
that he had studied the Information and 17-page Resolution of
the prosecutors and that he agreed with the prosecutor's
findings of probable cause.

All told, it would seem from the foregoing discourse of the court
that there is need to issue an order finding probable cause prior
to the issuance of a warrant of arrest.
Dissent on Need to Issue Separate Order
The foregoing statements would appear to negate the
pronouncement in Webb that there is no need for the court to
first issue an order of arrest before issuing a warrant of arrest,
and the presumption of regularity resorted to in justifying the
issuance of a warrant of arrest from the mere availability of the
records before the court in Enrile v. Salazar (supra), even in the
absence of a separate finding of probable cause.
In his dissent with the concurrence of Justice Mendoza, Justice
Reynato Puno found as sufficent basis to justify a finding of
probable cause the 17-page Joint Resolution of the Investigating
Prosecutor, and pointed out that Soliven and other related cases
did not establish the absolute rule that unless a judge has the
complete records of the preliminary investigation before him, he
cannot lawfully determine probable cause and issue a warrant of
arrest.
Soliven only held that it is the personal responsibility of the
judge to determine probable cause on the basis of the report and
supporting documents submitted by the fiscal; that he must
independently evaluate the report and supporting documents if
he finds no probable cause on the basis thereof, he can require
submission of additional supporting affidavits of witnesses.
There is nothing in Soliven that requires prosecutors to
physically submit to the judge the complete records of the
preliminary investigation especially if they are voluminous.
Nor is there anything in Soliven that holds the
physically submit the complete records of the
constitutionally infirm a finding of probable cause
even if it was made on the basis of an exhaustive
report or resolution.

omission to
case would
by a judge
prosecutor's

Indeed, in Webb v. de Leon, we sustained the finding of probable

cause made by the trial judge even if the complete records of

131

Justice Puno further maintains that there was no need for

respondent Judge to make a finding of probable cause.

It is unnecesary for him to issue an Order just to reiterate the

findings of the prosecutors, xxx'
Apparently to reconcile these conflicting views, the Court en
bane in Ho v. People, laid down the following principles:
SUMMARY OF PRINCIPLES
The court en banc summed up the following principles:
First, The determination of probable cause by the prosecutor is for a
purpose different from that which is to be made by the judge, Whether
there is reasonable ground to believe that the accused is guilty of the
offense charged and should be held for trial is what the prosecutor passes
upon.
The judge, on the other hand, determines whether a warrant of arrest
should be issued against the accused, i.e., whether there is a necessity for
placing him under immediate custody in order not to frustrate the ends of
justice.
Thus, even il both should base their findings on one and the same
proceeding 01 evidence, there should be no confusion as to their distinct
objectives,
Second, since their objectives are different, the judge cannot rely solely
on the report of the prosecutor in finding probable cause to justify the
issuance of a warrant of arrest.
Obviously and understandably, the contents of the prosecutor's report will
support his own conclusion that there is reason to charge the accused of
an offense and hold him for trial.
However, the judge must decide independently.
Hence, he must have supporting evidence, other than the prosecutor's
bare report, upon which to legally sustain his own findings on the
existence (or nonexistence) of probable cause to issue an arrest order.
This responsibility of determining personally and independently the
existence of nonexistence of probable cause is lodges in him by no less
than the most basic law of the land. Parenthetically, the prosecutor could
ease the burden of the judge and speed up the litigation process by
forwarding to the latter not only the information and his bare resolution
finding probable cause, but also sc much of the records and the evidence

on hand as to enable His honoi to make his personal and separate judicial
finding on whether tc issue a warrant of arrest.
Lastly, it is not required that the complete or entire records oi the case
during the preliminary investigation be submitted to and examined by the
judge.
We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused.
What is required, rather that the judge must have sufficient supporting
documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of stenographic notes, if any) upon
which to make his independent judgment or, at the very least, upon which
to verify the findings of the prosecutor as to the existence of probable
cause.
The point is: he cannot rely solely and entirely on the prosecutor's
recommendation.
Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives his
report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the
issuance of warrants of arrest.
This Court has consistently held that a judge fails in his bounden duty if
he relies merely on the certification or the report of the investigating
officer.
Thus, a warrant of arrest is void where the court did not personally
determine the existence of probable cause but based the same merely on:
(1) the resolution of the Panel of Investigators of the Ombudsman
recommending the filing of the information, and (2) memorandum of the
office of the Special Prosecutor denying the existence of a prejudicial
question.
The court, however clarified that: "It is not required that the issuing judge
categorically state in his resolution that he personally determined the
existence of probable cause.
It is enough that it may easily be gleaned from the resolution directing
the issuance of the warrant that he performed his duty in accordance with
the constitutional mandate on the matter.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect

The prosecutor's finding of probable cause is entitled to highest

respect.
This is a function that the court should not be called upon to
perform.
As a general rule, if the information is valid on its face and there
is no showing of manifest error, grave abuse of discretion or
prejudice on the part of public prosecutor, courts should not
dismiss it for want of evidence.

While recognizing that the determination by the Prosecutor of

probable cause to hold the accused for trial is an executive
function as distinguished from the determination by the judge in
the issuance of a warrant of arrest is a judicial function, which
must be determined separately, the Court, nonetheless ruled
that the findings of the prosecutor is entitled to the highest
respect.
Thus, "Verily, a judge cannot be compelled to issue a warrant of
arrest if he or she deems that there is no probable cause for
doing so.
Corollary to this principle, the judge should not override the
public prosecutor's determination of probable cause to hold an
accused for trial, on the ground that the evidence presented to
substantiate the issuance of an arrest warrant was insufficient,
as in the present case.
Indeed, it would be unfair to expect, the prosecution to present
all the evidence needed to secure the conviction of the accused
upon the filing of the information against the latter.
The reason is found in the nature and the objective of a
preliminary investigation.
Here, the public prosecutors do not decide whether there is
evidence beyond reasonable doubt of the guilt of the person
charged; they merely determine "whether there is sufficient
ground to engender a well-founded belief that a crime x x x has
been committed and that the respondent is probably guilty
thereof, and should be held for trial."
Evidentiary matters must be presented and heard during the
trial.
Therefore, if the information is valid on its face, and there is no
showing of manifest error, grave abuse of discretion and
prejudice on the part of the public prosecutor, the trial court
should respect such determination.
The court stressed that its rulings in Allado v. Diokno and
Salonga v. Pano, which set aside the trial court's finding's on the
existence of probable cause, are exceptions to the general rule
and may be invoked only if similar circumstances are clearly
shown to exist.
Ruling Does Not Deviate from Need of Personal Evaluation

The foregoing principles refer to the findings of the prosecutor

for the purpose of filing the case in court which should be
distinguished from the determination by the judge of probable
cause foi the issuance of a warrant of arrest.

132

Thus, although the prosecutor enjoys the legal presumption of

regularity in the performance of his official duties, which in turn
gives his report the presumption of accuracy, nothing less than
the fundamental law of the land commands the judge to
personally determine probable cause in the issuance of warrants
of arrest.
A judge fails in this constitutionally mandated duty if he relies
merely on the certification or report of the investigating officer.
In merely stating that he had no reason to doubt the validity of
the certification made by the investigating prosecutor, the judge
has abdicated his duty under the constitution to determine on
his own the issue of probable cause before issuing a warrant of
arrest.
Consequently, the warrant of arrest should be declared null and
void.
In Cojuangco v. Sandiganbayan, the court declared the warrant
of arrest issued in said case void because the respondent court
did not personally determine the existence of probable cause but
based the same merely on:
(1)

the resolution of the Panel of Investigators of the

Ombudsman recommending the filing of the information and

(2)

memorandum of the Office of the Special Prosecutor

denying the existence of a prejudicial questions.

The Judge may order the production of the records and

determine on the basis thereof the existence of probable cause
or return the record and direct the Fiscal to conduct further
investigation.
Effect of Refusal by Prosecution to Adduce Additional Evidence

The Court held that the trial court may disregard the Fiscal's
report and require submission of supporting affidavits of
witnesses.
The failure or refusal of the petitioner to present further
evidence, although a good ground for the respondent Judge not
to issue a warrant of arrest, is not a legal cause for dismissal.
The judge was directed to proceed with the case, it being
understood that, if within ten (10) days after notice by the
judge, the petitioner fails or refuses to present other evidence,
the dismissal will stand for lack of prosecution.
However, va.Alla.do v. Diokno, it was held that the Judge may
dismiss the case outright for lack of probable cause.

Determination of Probable Cause for Issuance of Warrant of Arrest

No Need of Conducting Hearing For Judicial determination of

Probabe Cause to Issue Warrant
Under the present rule the Rule does not require case to be set
for hearing to determine probable cause for the issuance of a
warrant for the arrest of the accused.
If the judge finds probable cause on the basis thereof, he shall
issue a warrant of arrest or, if the accused has already been
arrested, a commitment order otherwise.
He may either dismiss the case outright or to aid him in
determining the existence of probable cause; require additional
evidence within then (10) days from notice should the Judge still
find no probable cause, he shall dismiss the case.
The Court in Government of the United States of America v.
Hon. Guillermo G. Purganan, held that:
To determine probable cause for the issuance of arrest warrants,
the Constitution itself requires only the examination under
oath or affirmation of complainants and the witnesses they
may produce.
There is no requirement to notify and hear the accused before
the issuance of warrants of arrest.
In Ho v. People and in all the cases cited therein, never was a
judge required to go to the extent of conducting a hearing just
for the purpose of personally determining probable cause for the
issuance of a warrant of arrest.
All we required was that the "judge must have sufficient
supporting documents upon which to make his independent
judgment, or at the very least, upon which to verify the findings
of the prosecutor as to the existence of probable cause."
In Webb v. De Leon, the Court categorically stated that a judge
was not supposed to conduct a hearing before issuing a warrant
of arrest:
"Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of
guilt of an accused.
In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause.
They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence."

At most, in cases of clear insufficiency of evidence on record,

judges merely further examine complainants and their
witnesses.
Validating the act of respondent judge and instituting the
practice of hearing the accused and his witnesses at this early
stage would be discordant with the rationale for the entire
system.
If the accused were allowed to be heard and necessarily to
present evidence during the prima facie determination for the
issuance of a warrant of arrest, what would stop him from
presenting his entire plethora of defenses at this stage if he so
desires in his effort to negate a prima facie finding?
Such a procedure could convert the determination of a prima
facie case into a full-blown trial of the entire proceedings and
possibly make trial of the main case superfluous.
This scenario is also anathema to the summary nature of
extraditions.
The Accused is not, however, Prohibited from Filing a Motion to Dismiss on
the Ground of Lack of Probable Cause

It has been held that the absence of probable cause for the
immediate issuance of a warrant of arrest is not a ground for the
quashal of the information but is a ground for the dismissal of
the case under Section 6 (now Sec. 5), Rule 112 which is
without prejudice.
The trial court is mandated to immediately dismiss the case upon
finding that no probable cause exists to issue a warrant of arrest
and after having evaluated the resolution of the fiscal and
supporting information.
If the Court may motu propio dismiss the case for lack of
probable cause then it could do so when a motion to dismiss on
such ground is filed as was done va.Allado u. Diokno.
In cases governed by the Rule on Summary Procedure, the court
may likewise dismiss the case outright, for patently being
without basis or merit and order the release of the accused if in
custody.
SEC. 6.
When accused lawfully arrested without warrant
COMMENT:

THE FORMER RULE EMBRACED ONLY LAWFUL ARRESTS

FOR CRIMES COGNIZABLE BY THE REGIONAL TRIAL
COURT.
In view, however, of the expanded cases, which require preliminary
investigation even of cases that are not cognizable by the Regional Trial
Court as now defined in section 1 hereof, the present section was
accordingly amended.
Under the amendment, a complaint or information may only be filed after
an inquest conducted in accordance with existing rules;
Provided, however, That in the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a peace
officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
The former rule allows a direct filing in court in cases of lawful arrest
without a warrant except in Metropolitan Manila and chartered cities,
without an inquest.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended.
Under the former rule, the waiver may be made with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of
his choice.
Under the amended rule, the waiver may be made only IN THE PRESENCE
OF HIS COUNSEL pursuant to Section 2 ofRA. No. 7438.2
The former rule provides that if a lawyer is unavailable, a responsible
person of his own choice would be sufficient.
This was, however deleted in view of the provisions of section 2 of R.A.
No. 7438 limiting the assistance to that of a lawyer, which in this case
appears to be restrictive.
If the case has been filed in court without a preliminary investigation the
accused may, within five (5) days from the time he learns of its filing, ask
for a preliminary investigation with the same right to adduce evidence in
his DEFENSE AS provided in this Rule.
The request for preliminary investigation should be made before plea,
otherwise the right to ask for a preliminary investigation shall be deemed
waived.

NOTES
The rule was originally taken from section 15 of Rule 112,
"where the accused is detained without a warrant for his arrest"
which in turn was taken from Republic Act No. 409, as amended
by Republic Act No. 1201, which reads:
"In all cases brought to the Office of the City Fiscal involving crimes
cognizable by the Court of First Instance, where the accused is not

133

already in the legal custody of the police, no complaint or information

shall be filed without first giving the accused a chance to be heard in a
preliminary investigation, where such accused can be subpoenaed and
appears before the investigating fiscal, with the right to cross-examine the
complainant and his witnesses: Provided, That when the accused is
detained, he may ask for a preliminary investigation, but he must sign a
waiver of the provisions of Article One Hundred Twenty-five of the Revised
Penal Code, as amended: And provided, further, That if the case has
already been filed in court, he may ask for a reinvestigation thereof later
on with the same right to cross-examine the witnesses against him:
Provided, finally, That notwithstanding such waiver, the said investigation
must be terminated within seven days from its inception."

The rule as now modified refers to all persons lawfully arrested

without a warrant for an offense which requires a preliminary
investigation.
There are two (2) situations contemplated under this rule:
First, is when the person is lawfully arrested without a warrant
for an offense which requires a preliminary investigation, and no
complaint or information has yet been filed, in which case, he
may ask for a preliminary investigation by signing a waiver of
the provisions of Article 125 of the Revised Penal Code. To
prevent pro longed detention pending preliminary investigation,
the accused may apply for bail even if no information have been
filed.
In any event the preliminary investigation must be terminated
within fifteen (15) days from its inception.
Second, when a person is lawfully arrested without a warrant
for an offense which requires a preliminary investigation and the
complaint or information was filed by the offended party, peace
officer or fiscal without a preliminary investigation in which case
the accused may within five (5) days from the time he learns of
the filing of the information, ask for a preliminary investigation
with the same right to adduce evidence in his favor in the
manner prescribed in the Rule.
The Inquest
Inquest is an informal and summary investigation conducted by
a public prosecutor in criminal case involving persons arrested
and detained without the benefit of a warrant of arrest issued by
the court for the purpose of determining whether or not said
persons should remain under custody and correspondingly be
charged in court.
To safeguard the rights of the accused who was arrested without
a warrant, Department Circular No. 61, dated September 21,
1993, requires the arresting officer to bring the arrestee before
the inquest fiscal who shall determine whether or not said

person should remain in custody and correspondingly be charged

in court or that he be released either for lack of evidence or
further investigation.
The custodial investigation report shall be reduced to writing by
the investigating officer, provided that before such report is
signed, or thumbmarked if the person arrested or detained does
not know how to read and write, it shall be read and adequately
explained to him by his counsel or by the assisting counsel
provided by the investigating officer in the language or dialect
known to such arrested or detained person, otherwise, such
investigation report shall be null and void and of no effect
whatsoever.
The rule is not applicable if the person is not lawfully arrested
without a warrant
It was thus held in Go v. Court of Appeals, Larranaga v. Court of
Appeals:
"WHEN
THE
POLICE
FILED
A
COMPLAINT
FOR
FRUSTRATED HOMICIDE WITH THE PROSECUTOR, THE
LATTER SHOULD HAVE IMMEDIATELY SCHEDULED A
PRELIMINARY INVESTIGATION TO DETERMINE WHETHER
THERE
WAS
PROBABLE
CAUSE
FOR
CHARGING
PETITIONER IN COURT FOR THE KILLING OFELDON
MAGUAN.
Instead, the Prosecutor proceeded under the erroneous supposition that
Section 7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for
carrying out a preliminary investigation.
This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without any
conditions.
Moreover, since petitioner had not been arrested, with or without a
warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation."

However, since an information had already been filed and the

absence of a preliminary investigation does not impair the
validity of the information or affect the jurisdiction of the court,
the Supreme Court instead of ordering the dismissal of the case
directed the fiscal to conduct a preliminary investigation and
allowed the accused in the meantime to post bail."
Period to File Motion For Preliminary InvestigatioN

The period for filing a motion for preliminary investigation after

an information has been filed against an accused who was
arrested without a warrant has been characterized as mandatory

134

by the court.
In People v. Figueroa, the Supreme Court applied a substantially
similar rule held that as the accused in that case did no exercise
his right within the five-day period, his motion for reinvestigation
was denied.
The case should be distinguished from Rolito Go v. Court o,
Appeals (supra).
In said case, Go not only asked for preliminary investigation on
the very day the information was filed, but he is also clearly
entitled to a preliminary investigation.
Section 7, Rule 112 is clearly not applicable because Go was not
lawfully arrested, the right to demand preliminary investigation
was subject to the condition that he should claim it seasonably.
He did not do so.
Accordingly, he effectively waived his right to a preliminary
investigation
The Right To Bail Pending Preliminary Investigation

It may be noted that under Section 7 (now Sec. 6) of Rule 112, i

person lawfully arrested may post bail before the filing of the
information or even after its filing without waiving his right to
preliminary investigation, provided that he asks for a preliminary
investigation by the proper officer within the period fixed in the
said rule."
Waiver of Illegal Arrest
The accused may be estopped to question the illegality of the
arrest by entering a plea of not guilty without moving to quash
th information on such ground.
Thus, any irregularity attendant to an arrest was cured when
accused voluntarily submitted himself to the jurisdiction of the
Court by entering a plea of not guilty "and [by] participating in
the trial."
Where the Warrant of Arrest is void for want of probable cause,
the appropriate remedy is certiorari and prohibition with prayer
for the issuance of a TRO rather than actively participate in the
proceeding.
SEC. 7.
Records
SEC. 8.
Cases not requiring a preliminary investigation nor

covered by the Rule on Summary Procedure

Options of the Judge

Discretion to Dispense with Searching Questions

Warrant of Arrest in Cases which Do Not Require Preliminary Investigation

The Judge has three (3) options in the issuance of a warrant of

arrest:

The foregoing provisions have provided an alternative mode of

determining probable cause in cases filed for trial by allowing the
municipal judge to personally evaluate the affidavits and
supporting evidence of the complainant or if on the basis thereof
he finds no probable cause he may require the submission of
additional evidence to aid him in arriving at a conclusion as to
the existence of probable cause.

In cases which falls under the original jurisdiction of the

municipal trial court, which does not require a preliminary
investigation nor does it fall under the Rules on Summary
Procedure, the case may either be filed in court by a prosecutor
or directly filed in court by the offended party.

A.

The procedure in section 3(a) of this rule shall be observed.

The amended rule in the issuance of warrants of arrest by the

Municipal Trial Courts for actions filed in the exercise of its
original Jurisdiction provides for two distinct situations.

If the judge finds no sufficient ground to hold the

respondent for trial, he shall dismiss the complaint or
information.

The case may be filed directly in the municipal trial court or by

the prosecutor in Metro Manila or other chartered cities.

Otherwise, he shall issue a warrant of arrest or a

commitment order if the accused had already been arrested,
after personally examining in writing and under oath the
complainant and his witnesses in the form of searching
questions and answers, or

If the complaint is filed with the PROSECUTOR for offenses which

do not require a preliminary investigation the procedure outlined
in Section 3(a) of this Rule shall be observed.
Under Section 3(a), the complaint shall state the known address
of the respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting
documents RELIED UPON BY HIM TO ESTABLISH PROBABLE
CAUSE, in such manner of copies as there are respondent, plus
two (2) copies for the official file.
The said affidavits shall be sworn to before any PROSECUTOR,
state prosecutor or government official authorized to administer
oath, 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.
The prosecutor shall take appropriate action based on the
affidavits and other supporting documents submitted by the
complainant WITHIN TEN (10) DAYS FROM ITS FILING.
In other words, he may either dismiss the case or file it in court
without any further investigation since this refers to cases that
are not entitled to preliminary investigation.
The Prosecutor has no authority to issue a warrant of arrest.
It is only the court that may do so.
A case cognizable by the Municipal Trial Court may, however, be
filed in court directly by the complainant or by the prosecutor,
without preliminary investigation.

Where filed directly with the municipal trial court. if the

complaint or information is filed directly with the municipal
trial court.

B.

He may personally evaluate the affidavits and supporting

evidence attached to the complaint or information if on the
basis thereof he finds no probable cause, he may require the
submission of additional evidence to aid him in determining
the existence of probable cause.

C.

However, instead of issuing a warrant of arrest, the court

may issue summons if it is satisfied that there is no
necessity for placing the accused under immediate custody.
No warrant of arrest shall issue for offenses which fall under
the original jurisdiction of the court if such warrant had
already been issued during the preliminary investigation by
the same court pursuant to section 6(b) [now sec. 5] of this
rule the court shall instead proceed to hear the case in the
exercise of its original jurisdiction.
No warrant of arrest may be also be issued for cases
covered by the Revised Rule on Summary Procedure.
The No Necessity Rule

The "necessity" rule restores the 1985 amendment which was

deleted in 1988.
The statement that the judge determines whether there is need
for placing the accused under custody in order not to frustrate
the ends of justice only applies to warrants of arrest issued by
the Municipal Judge during a preliminary investigation.

135

This is in line with the pragmatic interpretation by the Supreme

Court that under the Constitution the judge does not have to
conduct a personal examination of the witnesses but that for
purposes of determining probable cause for the issuance of a
warrant of arrest, the Judge must personally evaluate the
prosecutor's report, the evidence adduced during the preliminary
investigation.
These jurisprudence are now capsulized in the present rule,
where the judge needs only to evaluate the report of the
Prosecutor and the supporting documents.
Sound policy dictates this procedure, otherwise judges would be
unduly laden with the preliminary examination and investigation
of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.
Meaning of Personal Examination
Where the respondent judge personally examined the witnesses
for the prosecution adopting as his own personal examination
the questions asked by the investigating officer as appearing in
the written statements, which he read over again to the
witnesses together with the answers given therein, asking the
witnesses whether said answers were theirs, and whether the
same answers were true, to which the witnesses answered in the
affirmative, the court considered this as sufficient. Republic Act
No. 3838 does not prohibit the municipal judge from adopting
the questions asked by a previous investigator.
Meaning of Examination under Oath
The finding of the trial court that the complaint was "supported
by statements of the witnesses under oath" and the record also
shows the sworn statements of the witnesses to have been
subscribed and sworn to before respondent Judge, satisfies the
second requirement.
Meaning of Searching Questions and Answers
The term "searching questions and answers" means only, taking
into consideration the purpose of the preliminary examination
which is to determine "whether there is a reasonable ground to

believe that an offense has been committed and the accused is

probably guilty thereof so that a warrant of arrest may be issued
and the accused held for trial," such questions as have tendency
to show the commission of a crime and the perpetrator thereof.
What would be searching questions would depend on what is
sought to be inquired into, such as: the nature of the offense,
the date, time and place of its commission, the possible motives
for its commission; the subject, his age, education, status,
financial and social circumstances, his attitude toward the
investigation, social attitudes, opportunities to commit the
offense; the victim, his age, status, family responsibilities,
financial and social circumstances, characteristics, etc. the points
that are the subject of inquiry may differ from case to case.
The questions, therefore, must to a great degree depend upon
the judge making the investigation.
At any rate, the court a quo found that respondent Judge was
"satisfied that the questions and answers contained in the sworn
statements taken by T-Sgt. Patosa partake of the nature of his
searching questions and answers as required by law," so the
respondent Judge adopted them."
Preliminary Examination May be Ex-parte
Preliminary examination is not an essential part of due process
of law. Preliminary examination may be conducted by the
municipal judge, prior to the issuance of the warrant of arrest,
either in the presence, or in the absence, of the accused.
There is no need of warrant or bail in cases covered by the Rule
on Summary Procedure.
RULE 113
ARREST
SECTION 1.
Definition of arrest
SEC. 2.
Arrest; how made
What Constitutes Arrest
The act relied upon as constituting an arrest must have been
performed with the intent to effect an arrest and must have
been so understood by the party arrested.
Also, the person making the arrest must be acting under some
real or pretended legal authority for taking the person into

custody.

Arrest of Notorious Criminal

It is not necessary, however, that there be an application of

actual force, or manual touching of the body, or physical
restraint which may be visible to the eye, or a formal declaration
of arrest.
It is sufficient if the person arrested understands that he is in
the power of the one arresting and submits in consequence.
However, in all cases in which there is no manual touching or
seizure or any resistance, the intentions of the parties to the
transaction are very important; there must have been an intent
an the part of one of them to arrest the other, and an intent on
the part of the other to submit, under the belief and impression
that submission was necessary.
There can be no arrest when the person sought to be arrested is
not conscious of any restraint of his liberty.
But the mere submission of a person whether pretended or
actual, will not constitute an arrest, if he is not at the time
actually within the power of the officer.
If an officer having authority to make an arrest lays his hand
upon the person of the prisoner, however lightly, with the
intention of taking him into custody, there is an arrest, even
though he has not succeeded in stopping or holding him even for
an instant.
An arrest signifies restraint on person, depriving one of his own
will and liberty, binding him to become obedient to the will of the
law.

The court noted in one case: "It is suggested that a notorious

criminal 'must be taken by storm' without regard to his right to
life which he has by such notoriety already forfeited.
This Court may approve of this standard of official conduct where
the criminal offers resistance or does something which places his
captors in danger of imminent attack.
Otherwise, this court cannot see how, as in the present case, the
mere fact of notoriety can make the life of a criminal a mere
trifle in the hands of the officers of the law.
Notoriety rightly supplies a basis for redoubled official alertness
and vigilance; it never can justify precipitate action at the cost of
human life.
Where, as here, the precipitate action of the appellants has cost
an innocent life and there exist no circumstances whatsoever to
warrant action of such character in the mind of a reasonably
prudent man, condemnation not condonation should be the
rule; otherwise, this Court would offer a premium to crime in the
shelter of official actuation.
Thus, it may be true that Anseimo Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a menace to
the peace of the community but these facts alone constitute no
justification for killing him when, in effecting his arrest, he offers
no resistance, or in fact no resistance can be offered, as when he
is asleep.
This, in effect, is the principle laid down, although upon different
facts."

No Unnecessary or Unreasonable Force shall be Used in Making Arrest

Force Necessary to Overcome Actual Resistance to Arrest

Although an officer in making a lawful arrest is justified in using

such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture
him if he escapes, and protect himself from bodily harm, yet he
is never justified in using unnecessary force or in treating him
with wanton violence, or in resorting to dangerous means when
the arrest could be effected otherwise.
The doctrine is restated in the Rules of Court thus: "No violence
or unnecessary or unreasonable force shall be used in making an
arrest, and the person arrested shall not be subject to any
greater restraint than is necessary for his detention."
And a peace officer cannot claim exemption from criminal
liability if he uses unnecessary force or violence in making an
arrest.

In People v. Delima, a prisoner escaped from jail. He was found armed

with a pointed piece of bamboo in the shape of a lance. Accused
policeman asked him to surrender but prisoner answered with a stroke of
his lance. The policeman fired his revolver but did not hit the criminal who
ran away. He pursued, firing and killing the prisoner.

136

Held: The killing was done in the performance of a duty.

The deceased was under the obligation to surrender, and had no right,
after evading service of his sentence, to commit assault and disobedience
with a weapon in the hand, which compelled the policeman to resort to
extreme means, which, although it proved to be fatal, was justified by
circumstances.

In another case, the deceased was creating a disturbance when

the defendant, a policeman, attempted to arrest him and take

him to the presidensia.
The deceased resisted the arrest by striking the accused with a
calicut whereupon the latter shot him with his revolver causing
the former's death.
The Court held: "Although a police officer may employ force to
overcome active resistance to an arrest, it is not reasonably
necessary to kill his assailant" to repel an attack with a calicut,
and only an incomplete defense is made out.
A police officer is not justified in using unnecessary force in
effecting arrest or in treating with wanton violence the arrested
person or in resorting to dangerous means when the arrest could
be affected otherwise.

He is placed in actual restraint to liberty in jail so that he may be

bound to answer for the commission of the offense.
He must be detained in jail during the pendency of the case
against him, unless he is authorized by the court to be released
on bail or on recognizance.
The prisoner whether under preventive detention or serving fail
sentence can not practice their profession nor engage in any
business or occupation or hold office, elective or appointee, while
in detention.
This is a necessary consequence of arrest and detention.

Police Officer Must Stand His Ground

SEC. 4.
Execution of Warrant

In U.S. v. Mojica One of the Constabulary soldiers, the deceased, was

placed under arrest. He resisted and finally succeeded in freeing himself.
He then struck a policeman with the fist, drew a mess kit knife and
brandishing it attacked the accused, another policeman. The accused
retreated a step or two, drew his revolver and fired killing the soldier.

The rule does not require a return of the warrant of arrest but
only a report to the judge who issued the warrant and, in case of
the officer's failure to execute the same, shall state the reasons
therefor.

Held: A police officer, in the performance of his duty, must stand his
ground and cannot, like a private individual, take refuge in flight, his duty
requires him to overcome his opponent. The force requires him to
overcome his opponent.

A warrant of arrest does not become stale or functus oficio

unlike a search warrant which is valid only for ten days.

The force which he may exert therefore differ somewhat from that which
may ordinarily be offered in self-defense.

A warrant of arrest remains valid until arrest is effected or the

warrant lifted.
SEC. 5.
Arrest without warrant; when Lawful

Bearing this in mind, we do not think that the appellant in using his
revolver against the deceased can be said to have employed unnecessary
force.
The deceased attacked him with a deadly weapon; he might perhaps,
have saved himself by running away, but this his duty forbade.
Was he to allow himself to be stabbed before using his arms?
It may, perhaps, be argued that the appellant might have used his club,
but a policeman's club is not a very effective weapon as against a drawn
knife and a police officer is not required to afford a person attacking him
the opportunity for a fair and equal struggle.

SEC. 3.
Duty of Arresting Officer
COMMENT:

As a matter of law, when a person indicted for an offense is

arrested, he is deemed placed under custody of the law.

Amendments to the Rule, Explained

Reason For 1985 Amendment

In 1985, the rule, which was transposed to section 5 of Rule
113, introduced a significant change.
Subsection (b) of section 5, Rule 113 inserted the word "just"
before been committed, and the phrase "he has reasonable
ground to believe" was changed to "he has personal knowledge
of facts" to minimize arrests based on mere suspicion or
hearsay.
Controversy arose in the interpretation of what are those fact
which must be within the personal knowledge of the person
effecting the arrest?
Otherwise stated, what are the facts indicating that the person
to be arrested has committed the crime.
The restrictive interpretation is that the facts constituting the
crime must be personally known by the person effecting the
arrest, hence, there are cases which excluded even an
eyewitness identification allegedly because of lack of personal
knowledge by the arresting officer.
The Revised Rules on Criminal Procedure
As revised, the present rule reads:
"(B) WHEN AN OFFENSE HAS JUST BEEN COMMITTED AND
HE HAS PROBABLE CAUSE TO BELIEVE BASED ON
PERSONAL KNOWLEDGE OF FACTS OR CIRCUMSTANCES
THAT THE PERSON TO BE ARRESTED HAS COMMITTED IT."
The present rule removed the requirement that an offense must
have in fact been committed and clarified that probable cause to
believe based on personal knowledge of facts refer to "facts and
circumstances" that the person to be arrested has committed it.

a.

Former Rule (1964)

Sec. 6, Rule 113

Such knowledge would be sufficient to justify a warrantless

arrest for an offense that has just been committed.

b.

When an offense has in fact been committed, and he has

reasonable ground to believe that the person to be arrested
has committed it; and

The amendment is in accord with Supreme Court decisions that

the indubitable existence of a crime is not necessary to justify a
warrantless arrest and that 'personal knowledge of facts,' in
arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.

1985 AMENDMENT
b)

When an offense has in fact just been committed, and he

has personal knowledge of facts indicating that the person
to be arrested has committed it; and

137

A reasonable suspicion therefore must be founded on probable

cause, coupled "with good faith on the part of the peace officers
making the arrest.
The only difference is that in flagrante arrests, under subpar.
(a), the facts constituting probable cause occur in the presence
of the arresting person, while in hot pursuit, knowledge of the
facts occurred after the commission of the crime.
Although probable cause eludes exact and concrete definition, it
generally signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person is guilty of the offense
with which he is charged.

General Principles; Warrantless Arrest Not Allowed

a.

The law expressly allowing arrests without a warrant is

found in Section 5, Rule 113 of the Rules of Court.
A warrantless arrest under circumstances contemplated
under Sec. 5(a) has been denominated as one "in flagrante
delicto" while that under Section 5(b) has been described as
a "hot pursuit arrest."
b.

It, likewise, refers to the existence of such facts and

circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed and
that the item(s), article(s) or object(s) sought in connection with
said offense or subject to seizure and destruction by law is in the
place to be searched.

A peace officer has no power or authority to arrest a person

without a warrant upon complaint of the offended party or
any other person, except in those cases expressly
authorized by law.
What he or the complainant may do in such case is to file a
complaint with the city fiscal in cities, or directly with the
justice of the peace courts (now municipal courts) in
municipalities and other political subdivisions.

Personal Knowledge of Facts Constituting Probable Cause

In its resolution denying the Motion for Reconsideration in the

Umil v. Ramos cases, the majority opinion explained the
meaning of Personal Knowledge of Facts (under section 5[b]), as
follows:

If the city fiscal has no authority, and he has not, to order

the arrest of a person charged with having committed a
public offense even if he finds, after due investigation, that
there is a probability that a crime has been committed and
the accused is guilty thereof, a fortiori a police officer has no
authority to arrest and detain a person charged with an
offense upon complaint of the offended party or other
persons even though after investigation, he becomes
convinced that the accused is guilty of the offense charged.

"It has been ruled that 'personal knowledge of facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion.

The grounds of suspicion are reasonable when, in the absence of

actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.

As a general rule, no peace officer or person has the power

or authority to arrest anyone without a warrant except in
those cases expressly authorized by law.

c.

Section 2463 of Revised Administrative Code recognized as

basis for warrantless arrest was repealed by R.A. No. 409
otherwise known as the Charter of Manila.
Exception

A reasonable suspicion therefore must be founded on probable

cause, coupled "with good faith on the part of the peace officers
making the arrest."

The rules recognize and allow arrests without warrant and a

search and seizure without warrant incident to a lawful arrest
whether the arrest is with or without a warrant.

The foregoing standards were again adopted in warrantless "hot

pursuit" arrest in the 1999 case of People v. Doria.

As stated in People v. Kaqui Malasugui, the Constitutional

precepts do not prohibit arrests, searches and seizures without
judicial warrant, but only those that are unreasonable.

As observed by an eminent author there does not exist (and

never will exist) a "bright line" marking the exact boundaries of
probable cause, so that a warrant should be upheld when the
initial judgment of the magistrate could considerably have gone
either way.

To hold that no criminal can in any case be arrested and

searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most

138

depraved of
instances.

criminals,

facilitating

their

escape

in

many

It is the duty of a policeman to arrest those who disturb an

assemblage by words and blows constituting a breach of the
peace and the defendant who requested the arrest and the
officer who made it did not incur criminal responsibility.
Municipal councilors and lieutenants or "barrios" are charged
with duty of maintaining order, and preserving and protecting
life and property in the "barrios" specially placed under their
direction in conformity with Sec. 37 of Act No. 82, and are
therefore clothed with authority to make arrests without
warrants, not inferior to those powers usually conferred upon
peace officers, more especially those of peace officers known as
"constables" in American and English law.
Thus, the Lieutenant of a "barrio" was held to be within lawful
performance of his duties when he attempted to arrest a person
caught in flagrante delicto conducting a clandestine cockpit.
Any officer charged with the preservation of the public peace
may arrest without a warrant any person who is committing, or
has committed, a breach of peace in his presence.
Source of Rule on Warrantless Arrest
a.

A warrantless arrest in this jurisdiction as an exception to

the constitutional prohibition against unreasonable search
and seizure was originally governed by Rules 27, 28, 29 and
30 of the Provisional Law for the Application of the Penal
Code, which authorized among others the arrest of persons
when there is reasonable ground to believe him guilty of
some offense, provided:
First. That the authority or agent had reasonable cause to
believe that an unlawful act, amounting to crime had been
committed.
Second. That the authority or agent had sufficient reason to
believe that the person arrested participated in the
commission of such unlawful act or crime.
The Supreme Court in the 1909 case U.S. v. Fortaleza
(supra), likewise pointed to section 37 of Act No. 183
(Charter of Manila) which designated customs officials,
including police officers or peace officers who may pursue
and arrest without warrant, any person found in suspicious
places or under suspicious circumstances reasonably tending
to show that such person has committed, or is about to
commit any crime or breach of the peace; or may arrest, or
cause to be arrested without warrant, any offender, when

the offense is committed in the presence of a peace officer

or within his view.
b.

The extent of a peace officers' arrest powers in the

Philippines without warrant and the limitations therein was
upheld by the Supreme Court in the 1917 case of U.S. v.
Santos and as stated in the Legislature in the Charter of the
City of Manila and (2) the Administrative Code and (3) Sec.
2258, edition of 1917 which enjoins Municipal policemen to
"exercise vigilance in the prevention of public offenses.

b.

U.S. v. Fortaleza upholding warrantless arrest of operator

by barrio lieutenant of a clandestine, cockpit operation.

c.

U.S. u. Samonte - Meaning of committed in one's presence

Seeing or Hearing at a Distance. An offense is committed
in the presence or within the view of an officer, within the
meaning of the rule authorizing an arrest without a warrant,
when the officer sees the offense, although at a distance, or
hears the disturbances created thereby and proceeds at
once to the scene thereof.

The decision, likewise cited the common law rule on the

arrest of suspicious night walkers.
c.

d.

In the 1939 case of People v. Ancheta the Supreme Court

pointed to section 848 of the Administrative Code and
Article 124 of the Revised Penal Code as allowing members
of the Constabulary or policemen to make arrests without
warrant, not only when a crime is being committed or is
about to be committed in their presence, but also when they
reasonably believe or have grounds to suspect that a crime
has been committed and that it has been committed
precisely by the person arrested.
Under Commonwealth Act No. 181 (Sec. 3), an arrest
without warrant may be made by agents of the Department
of Justice (i.e., the Chief of the Division of Investigation and
his subordinates) for a crime which has been committed in
their presence, or within their view, or in cases where the
person making the arrests has reasonable grounds to
strongly believe that the person so arrested is guilty of such
crime and where there is likelihood of the person escaping
before a legal warrant can be obtained for his arrest, but the
person arrested shall be immediately taken before the
competent Court of Justice.

d.

e.

Common Law rule applied. Justice Malcolm stated that:

"One should, however, not expect too much of an ordinary
policeman. He is not presumed to exercise the subtle reasoning of a
judicial officer.

U.S. v. Sanchez The legality of the detention does not

depend upon the fact of the crime, but upon the nature of
the deed, where such characterization may reasonably be
inferred by the officer or functionary to whom the law at
that moment leaves the decision for the urgent purpose of
suspending the liberty of the citizen.

One of the means conducing to these ends being the

identification of the person of the alleged criminal or
lawbreaker, the duty that directly devolves upon the police
to make the arrests or detentions for the purposes of such
investigation cannot be questioned, (supra)

The bases of the rulings are Rules 27 and 28, Provisional Rules
for Application of Penal Code, Revised Administrative Code and
Section 37 Charter of Manila which allows warrantless arrest
based on reasonable ground of belief.
The following cases are illustrative:
f.

Often he has no opportunity to make proper investigation but must

act in haste on his own belief to prevent the escape of the criminal.
To err is human. Even the most conscientious officer must at times
be misled.

U.S. u. Batallones A peace officer can justify an arrest

without warrant if there is reasonable ground of suspicion
tending to show that a person committed or is about to
commit any crime 01 breach of the peace, and if he acts in
good faith. Under such conditions, even if the suspected
person is later found to be innocent, the peace officer is not
liable for coercion or arbitrary detention.

One of the duties of the police is to arrest lawbreakers in

order to place them at the disposal of the judicial or
executive authorities upon whom devolves the duty to
investigate the act constituting the violation or to prosecute
and secure the punishment thereof.

Earlier Rulings (Before 1940): Arrest Based on Suspicion, Were Held Valid

U.S. u. Burgueta warrantless arrest of accused while

quarreling in public with Municipal Councilor.

The persons merely entered an uninhabited camarin but

their arrest was justified to prevent the commission of a
crime.

In this case, as the priest engaged in a quarrel was down

and was being maltreated, he shouted "police! police!" and
the police heard this and attempted to arrest appellant, he
resisted arrest and struck the police. Appellant was held
guilty of assault upon an agent of a person in authority.

Under this law members of the investigation staff of the

Bureau of Investigation shall be peace officers and as such
have the power to make arrests, searches and seizure in
accordance with existing laws and rules.

a.

warrant is allowed where there is reasonable ground of

suspicion supported by circumstances sufficiently strong in
themselves as to warrant a reasonable man in believing the
accused to be guilty. No crime was committed here.

If, therefore, under trying circumstances and in a zealous effort to

obey the orders of his superior officer and to enforce the law, a
peace officer makes a mere mistake in good faith, he should be
exculpated.
Otherwise, the courts will put a premium on crime and will terrorize
peace officers through a fear of themselves violating the law."

g.

In People v. Kagui Malasugu a warrantless arrest for a

crime committed not in arresting officer's presence but
made on the same day was justified.

h.

In other words, such arrest or detention does not

necessarily presume that really a crime had been
committed.
It is sufficient that there was ample ground to believe
honestly and reasonably that the cause of the surrounding
phenomena at the time was a crime that has just been or
was about to be committed and that the person detained
was responsible for it.
People v. Ancheta, reiterated the ruling laid down in U.S. v.
Santosand adopted that of a decision of the Supreme Court
of Spain of November 5, 1892.
Indubitable Existence of Crime Not Required

Hearing the screeching of tires followed by a thud and

seeing the sideswiped victim is a crime committed in one's
presence to justify a warrantless arrest.

Thus, under the pre-1940 rulings, a lawful warrantless arrest

does not require the indubitable existence of a crime.

In a case of arbitrary detention, the Supreme Court held

that there is No need of fact of commission of offense to
justify the detention. Probable cause for an arrest without

It is sufficient if the officer effecting the arrest has reasonably

sufficient grounds to believe the existence of an act having the
characteristic of a crime and that the person sought to be

139

detained has participated therein, a warrantless arrest was made

on the basis of information given by one of the accused naming
his companions who, on the basis thereof, was arrested without
a warrant.
The arrest was considered as lawful.
Restrictions on Warrantless Arrest
In Sayo, et al. v. Chief of Police, the court, however, held that:
"THE LAW RESTRICTS THE CASES WHEN A PEACE OFFICER
MAY ARREST WITHOUT A WARRANT; THE SO-CALLED
COMMON LAW RULE RELATING TO OTHER CASES OF
ARREST WITHOUT WARRANT HAS NO APPLICATION IN
THIS JURISDICTION, AND EXCEPT AS AUTHORIZED BY
SUCH STATUTE, AN ARREST WITHOUT WARRANT IS
ILLEGAL.
STATUTORY CONSTRUCTIONS EXTENDING THE RIGHT TO
MAKE ARRESTS WITHOUT A WARRANT BEYOND THE
CASES PROVIDED BY LAW IS DEROGATORY OF THE RIGHT
OF THE PEOPLE'S LIBERTY"
Present Rule on Warrantless Arrest
The law expressly allowing arrests without a warrant is found in
Section 5, Rule 113 of the Rules of Court.
A warrantless arrest under circumstances contemplated under
Sec. 5(a) has been denominated as one "in flagrante delicto"
while that under Sec. 5(b) has been described as a "hot pursuit
arrest."
The foregoing rule specifies the instances when warrantless
arrests may be made by a peace officer or a private person.
The old Rule was modified as follows: (a) the phrase "about to
commit an offense" was changed to "is attempting to commit an
offense," because the old phraseology implied that no offense
had as yet been committed, (b) the word "just" was inserted
before "been committed," and the phrase "he has reasonable
ground to believe" was changed to "he has personal knowledge
of facts" to minimize arrests based on mere suspicion or
hearsay.44
The 1940 Rules of Court (effective July 1, 1940), provided for
warrantless arrest in section 6 of Rule 109 thereof. These were
taken from the Provisional Law for the application of the Penal
Code and sections 21 and 22 of the American Law Institute45
with one significant change. The warrantless arrest under
subsection (b) requires as a condition thereof that an "offense
has in fact" been committed.

In 1985 rule, which was transposed to section 5 of Rule 113,

introduced another significant change. Subsection (b) of section
5, Rule 113 inserted the word "just" before been committed, and
the phrase "he has reasonable ground to believe" was changed
to "he has personal knowledge of facts" to minimize arrests
based on mere suspicion or hearsay.46
Application of Present Rule
Despite the 1985 amendments on warrantless arrest, the court
appears to have returned to pre-amendment doctrines in the
application of the rule.
In Flagrante Arrests (For crimes committed in presence of arresting
person)

Sec. 5(a), Rule 113, Sec. 12, Rule 126 arrest for crimes In
Presence of arresting officer. WHEN IN HIS PRESENCE, THE
PERSON TO BE ARRESTED HAS COMMITTED, IS ACTUALLY
COMMITTING, IS OR ATTEMPTING TO COMMIT A CRIME.
Essential Requisites
Reliable information alone, absent any overt act indicative of a
felonious enterprise in the presence of and within the view of the
arresting officers, are not sufficient to constitute probable cause
that would justify an in flagrante delicto arrest.
To constitute probable cause, two requisites must concur:
(a) the person to be arrested must execute an overt act
indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the
view of the arresting officer
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance.
Overt or external act has been defined as some physical activity
or deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out
to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense.
A warrantless arrest is not justified by the mere fact that a crime

140

is being committed in one's presence.

The arresting officer must have personal knowledge of such
commission.
The knowledge must precede the arrest.
The arrest cannot be justified by discovery thereafter that the
person was committing a crime.
Knowledge Must Be At Time of, Not After, Arrest
An offense is committed in the presence or within the view of an
officer, within the meaning of the rule authorizing an arrest
without a warrant, when the officer sees the offense, although at
a distance, or hears the disturbance caused thereby and
proceeds at once to the scene thereof, or the offense is
continuing; or has not been consummated at the time when the
arrest is made.
Knowledge of the commission of the crime in one's presence
must precede the arrest.
The law requires that there be first a lawful arrest before a
search can be made the process cannot be reversed.
In other words, the acts must be known to the officer at the time
of their commission through his sensory perceptions.
Thus, there could have been no in flagrante delicto arrest
preceding the search, in light of the lack of an overt physical act
on the part of accused-appellant that he had committed a crime,
was committing a crime or was going to commit a crime.
As applied to in flagrante delicto arrests, it has been held that
"reliable information" alone, absent any overt act indicative of a
felonious enterprise in the presence and within the view of the
arresting officers, is not sufficient to constitute probable cause
that would justify an in flagrante delicto arrest.
Hence, in People u. Aminudin, we ruled that "the accusedappellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he
had just done so.
What he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called for his
arrest.
To all appearances, he was like any of the other passengers
innocently disembarking from the vessel.
It was only when the informer pointed to him as the carrier of
the marijuana that he suddenly became suspect and so subject

to apprehension."
The reliance of the prosecution in People v. Tangliben, to justify
the police's actions is misplaced.
In the said case, based on the information supplied by informers,
police officers conducted a surveillance at the Victory Liner
Terminal compound in San Fernando, Pampanga against persons
who may commit misdemeanors and also on those who may be
engaged in the traffic of dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a red travelling
bag who was acting suspiciously.
They confronted him and requested him to open his bag but he
refused. He acceded latel on when the policemen identified
themselves. Inside the bag were marijuana leaves wrapped in a
plastic wrapper. The police officers only knew of the activities of
Tangliben on the night ol his arrest.
In the instant case, the apprehending policemen already hac
prior knowledge from the very same informant of accusedappellant's activities.
The police operatives cannot feign ignorance of the alleged ille
gal activities of accused-appellant. Considering that the identity
address and activities of the suspected culprit was already
ascertained two years previous to the actual arrest, there was
indeed no reason why the police officers could not have obtained
a judicial warrant before arresting accused-appellant and
searching his person Whatever information their civilian asset
relayed to them hours be fore accused-appellant's arrest was not
a product of an "on-the-spot tip which may excuse them from
obtaining a warrant of arrest
Accordingly, the arresting team's contention that their arrest of
accused-appellant was a product of an "on-the-spot" tip is
untenable
In Randolph David v. Gloria Macapagal-Arroyo, the Court
stressed:
The Constitution provides that "the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search
and seizure of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest.

Thus, the fundamental protection given by this provision is that between

person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants
of arrest.

In the Brief Account submitted by petitioner David, certain facts

ire established: first, he was arrested without warrant; second,
the PNP operatives arrested him on the basis ofPP 1017; third,
he was brought at Camp Karingal, Quezon City where he was
fingerprinted, Dhotographed and booked like a criminal suspect;
fourth, he was created brusquely by policemen who "held his
head and tried to push him inside an unmarked car; fifth, he was
charged with Violation of Satas Pambansa Bilang Big. 880 and
Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh, he was eventually released for insufficiency of
evidence.
Neither of the two (2) exceptions mentioned above justifies
petitioner David's warrantless arrest.
During the inquest for the charges of inciting to sedition and
violation of B.P. Big. 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing tshirts with the invective "Oust Gloria Now" and their erroneous
assumption that petitioner David was the leader of the rally.
Consequently, the Inquest Prosecutor ordered his immediate
release on the ground of insufficiency of evidence.
He noted that petitioner David was not wearing the subject tshirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition.
Further, he also stated that there is insufficient evidence for the
charge of violation of B.P. Big. 880 as it was not even known
whether petitioner David was the leader of the rally.
ILLUSTRATIVE CASES:
Meaning of Personal Knowledge Based on Sensory Perceptions
People v. Claudio
Pat. Obina a member of the NARCOTICS UNIT, was on board the Victory
Liner, seated on the second seat at the back. While he was thus seated,
suspect Anita Claudio boarded the same bus and took the seat in front of
him after putting a bag which she was carrying at the back of the seat of
Obina. The bag placed by suspect behind his seat was a woven buri bag
made of plastic containing her bag behind Pat. Obina's seat aroused his
suspicion and made him felt (sick) nervous. With the feeling that there
was something unusual, he had the urge to search the woven plastic bag.
But it was only at San Fernando, Pampanga when he was able to go to
the bag. He inserted one of his fingers in a plastic bag located at the

141

bottom of the woven bag and smelt marijuana. The plastic woven bag
appearing to contain camote tops on the top has a big bundle of plastic
marijuana at the bottom. He could recognize the smell of marijuana
because he was assigned at that time at the ANTI-NARCOTICS UNIT. He
did not, however, do anything after he discovered that there was
marijuana inside the plastic bag of the accused until they reached
Olongapo City and the accused alighted from the bus in front of the Caltex
Gasoline Station in Sta. Rita. Right after the accused alighted from the
bus, policeman Obina intercepted her and showed her his ID identifying
himself as a policeman and told her he will search her bag because of the
suspicion that she was carrying marijuana inside said bag. In reply,
accused told him, "Please go with me, let us settle this at home."
HELD: Appellant Claudio was caught transporting prohibited drugs. Pat.
Daniel Obina did not need a warrant to arrest Claudio as the latter was
caught inflagrante delicto. The warrantless search being an incident to a
lawful arrest is in itself lawful.

PEOPLE V. BURGOS
Strict Interpretation
Personal Knowledge Interpreted. The need to strictly adhere to the rule
was stressed by Justice Hugo Gutierrez, Jr., in no uncertain terms in
People v. Burgos In this case Cesar Masamlok surrendered to the PC on
May 12, 1982 stating that, he was forcibly recruited by Ruben Burgos a
member of the NPA, threatening him with the use of firearm against his
life, if he refused.
A joint team of members of the PC-INP was dispatched the following day
to arrest Ruben Burgos and they were able to locate and arrest him while
he was plowing his field. Interrogation was made in the house of the
accused. He first denied possession of the firearm but later, upon further
questioning, the team with the wife of the accused, the latter pointed to a
place below their house where a gun was buried in the ground.
After the recovery of the firearm, the accused likewise pointed to the
subversive documents which the PC found kept in a stock pile ofcogon, at
a distance of three meters apart from his house.
Accused when confronted with the firearm readily admitted the same as
issued to him by the team leader of a sparrow unit. The lower court
justified the arrest, search and seizure without warrant under Section 6-A,
Rule 113 of the Rules of Court.
The Supreme Court held the arrest as unlawful.
Under Section 6(a) of Rule 113, the officer arresting a person who has
just committed, is committing, or is about to commit an offense must
have personal knowledge of that fact.
The offense must also be committed in his presence or within his view."
There is no such personal knowledge in this case.
Whatever knowledge was possessed by the arresting officers, it came in
its entirety from the information furnished by Cesar Masamlok.
The location of the firearm was given by the appellant's wife.

At the time he was arrested, he was not committing a crime but was
plowing his field.
If an arrest without warrant is unlawful at the moment it is made,
generally, nothing that is discovered afterwards cannot make it lawful
ARREST UNLAWFUL WHERE WAS
OPPORTUNITY TO OBTAIN WARRANT

NO

URGENCY

AND

THERE

by the officers (and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him. Even expediency could not be
invoked to dispense with the obtention of the warrant.

apprehended the petitioner as he attempted to flee they did not know that
he had committed, or was actually committing the offense of illegal
possession of firearms and ammunitions.

Hence, the warrantless search was also illegal and the evidence obtained
thereby was inadmissible.

They just suspected that he was hiding something in the buri bag.

IS

In People v. Aminnudin, the PC officers had earlier received a tip from one
of their informers that the accused was on board a vessel bound for Iloilo
City and was carrying marijuana. He was identified by name. Acting on
this tip, they waited for him in the evening of June 25, 1984, and
approached him as he descended from the gangplank after the informer
had pointed to him. They detained him and inspected the bag he was
carrying. It was found to contain three kilos of what were later analyzed
as marijuana leaves by an NBI forensic examiner, who testified that she
conducted microscopic, chemical and chromatographic tests on them. On
the basis of this finding, the corresponding charge was then filed against
Aminnudin.
HELD: Contrary to the averments of the government, the accusedappellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest
allowed under Rule 113 of the Rules of Court.
The present case presented no urgency. From the conflicting declarations
of the PC witnesses, it is clear that they had at least two days within
which they could have obtained a warrant to arrest and search Aminnudin
who was coming to Iloilo on the M/V Wilcon 9. His name was known.
The vehicle was identified. The date of its arrival was certain.
And from the information they had received, they could have persuaded a
judge that there was probable cause, indeed, to justify the issuance of a
warrant. Yet they did nothing.
No effort was made to comply with the law.
The Bill of Rights was ignored altogether because the PC Lieutenant who
was the head of the arresting team, had determined on his own authority
that a "search warrant was not necessary."
The accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just
done so.
What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently
disembarking from the vessel.
It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension.
It was the furtive finger that triggered his arrest.
The identification by the informer was the probable cause as determined

Aminnudin was reiterated in People v. Encinada, under

substantially identical factual setting. To the trial court's
justification that there was no time to obtain a search warrant
because the information was received at 4:00 o'clock in the
afternoon, and that the ship was to dock at 7:00 a.m., the court
pointed to Administrative Order No. 12 which allows applications
for search warrants even after office hours.
COMPARE: Where there was No Opportunity to Obtain Warrant
In People v. Saycon A warrantless arrest, search and seizure based on
information from a NARCOM agent that a suspected Shabu courier was
arriving at Dumaguete City on board a vessel and who was pointed to by
another agent was justified although the suspect was not perceptively
committing a crime but (like Aminnudin) merely alighted from the vessel.
The search and seizure was justified under the principle justifying the
search of moving vehicles as there was no time to obtain a warrant.
The case was distinguished from Aminnudin where there was time to
obtain a search warrant.
The record shows that the NARCOM officers were uncertain as to the
precise date and time appellant would arrive from Manila; all they knew is
that he would be taking a boat from Manila to Dumaguete on the morning
of 8 July 1992.
More specific details were received earlier in the morning that the
appellant would be arriving the same morning. Clearly, the agents had to
act quickly but there was not enough time to obtain a warrant of arrest or
search warrant.

Mere suspicion Insufficient

WHERE THE ACCUSED CARRYING A BURI BAG WAS
ACTING SUSPICIOUSLY AND WAS FOUND IN POSSESSION
OF A FIREARM AND EXPLOSIVE, THE SOLICITOR GENERAL
ARGUED THAT WHEN THE TWO POLICEMEN APPROACHED
THE PETITIONER, HE WAS ACTUALLY COMMITTING OR
HAD JUST, COMMITTED THE OFFENSE OF ILLEGAL
POSSESSION OF FIREARMS AND AMMUNITION IN THE
PRESENCE OF POLICE OFFICERS AND CONSEQUENTLY THE
SEARCH AND SEIZURE OF THE CONTRABAND WAS
INCIDENTAL TO THE LAWFUL ARREST IN ACCORDANCE
WITH SECTION 12, RULE 126 OF THE RULES ON CRIMINAL
PROCEDURE.
The Supreme Court held:
"At the time the peace officers in this case identified themselves and

142

They did not know what its contents were. The said circumstances did not
justify an arrest without a warrant.
Thus, to justify the arrest without warrant, under Section 6 (a), it is not
enough that a crime is actually being committed in his presence.
The person or peace officer making the arrest must be personally aware
of the commission of such crime."
People v. Mengote
The police received a telephone call that there were three suspicious
looking persons at the corner of Juan Luna and North Bay Boulevard at
Tondo. The police responded and saw two men "looking from side to
side," one of whom was holding his abdomen. The police approached
them and identified themselves as policemen whereupon the two tried to
ran away. The other lawmen surrounded them and searched them and
one of them was found with an unlicensed firearm and live ammunition.
Was the search and seizure legal?
Held: It is illegal. At the time of the arrest, the appellant was merely
looking from side to side and holding his abdomen. This is not a crime.
The police did not know then what offense if at all had been committed
and neither were they aware of the participation therein of the appellant,
xxx
As for the illegal possession of firearm, the police discovered this only
after he had been searched and investigated.
The Supreme Court cited the cases of Burgos, Alih Castro and Aminnudin
holding that it would be a sad day, indeed, if any person could be
summarily arrested and searched just because he is holding his abdomen,
even if it be possibly because of a stomachache or if a peace officer could
clamp handcuffs on any person with a shifty look on suspicion that he
may have committed a criminal act or is actually committing or
attempting to commit it.
People v. Rodriguez
The arrest, search and seizure was held illegal in view of the admission by
the police that he did not actually see the appellants transacting but only
saw them acting suspiciously. The court held that the cardinal rule is that
no person may be subjected by the police to a search of his house, body
or personal belonging except by virtue of a search warrant or on the
occasion of a lawful arrest.
If a person is searched without a warrant, or under circumstances other
than those justifying an arrest without warrant in accordance with law,
merely on suspicion that he is engaged in some felonious enterprise, and
in order to discover if he has indeed committed a crime, it is not only the
arrest which is illegal but also, the search on the occasion thereof as being
the fruit of the poisonous tree.

In that event, any evidence taken, even if confirmatory of the initial

suspicion, is inadmissible "for any purpose in any proceeding.

COMPARE:

Arrest Based on Suspicion; Where there is Urgency

Where around 9:30 in the evening the police on a surveillance mission
noticed a person carrying a red travelling bag who was acting suspiciously
and they confronted himand requested him to open the red travelling bag
but the person refused. Found inside the bag were marijuana leaves
wrapped in a plastic wrapper and weighing one kilo, more or less.
Accused was held to havev been caught in flagrante, since he was
carrying marijuana at the time of his arrest. This case therefore falls
squarely within the exception.
The warrantless search was incident to a lawful arrest and is consequently
valid.
In contrast, to the Aminnundin case, Tangliben presented urgency.
Although the trial court's decision did not mention it, the transcript of
stenographic notes reveals that there was an informer who pointed to the
accused-appellant as carrying marijuana.
Faced with such on-the-spot information, the police officers had to act
quickly.
There was not enough time to secure a search warrant. We cannot
therefore apply the ruling in Aminnudin to the case at bar.
To require search warrants during on-the-spot apprehensions of drug
pushers, illegal possessors of firearms, jueteng collectors, smugglers of
contraband goods, robbers, etc. would make it extremely difficult, if not
impossible to contain the crimes with which these persons are associated.
Upon being informed by their civilian informer that there would ie a
transaction involving the buying and selling of marijuana which would
take place on that same day, Patrolmen immediately proceeded to the
vicinity where the alleged transaction would take place.
While positioned at a street corner, they saw appellant and Warner
Marquez ay the side of the street about forty to fifty meters away from
them the police officers).
They saw Marquez giving something to appellant who, thereafter, handed
a wrapped object to Marquez who then inserted the object inside the front
of his pants infront of his abdomen while appellant, on his part, placed the
thing given to him inside his pocket.
The court a quo correctly ruled: The facts and circumstances attendant
precisely fall under Sec. 5(a), Rule 113 of the Rules on Criminal
Procedure.
The subsequent arrest of Marquez and accused were made under the
principle of hot pursuit.
The recovery of the marijuana from Marquez and the P190.00 from

petitioners was based on probable cause determined after

close surveillance for three (3) months during which period
their activities were monitored.

accused by the said police officers were not violative of their constitutional
rights since Marquez and the accused voluntarily surrendered them to the
police officers.
But even for the sake of argument that the recovery of the marijuana and
peso bills were against the consent of Marquez and accused, still, the
search on their persons were incidental to their valid warrantless arrest."

Compare

The Supreme Court justified the arrest and the seizure of

the photo negatives, photographs and posters without
warrant due to the existence of probable cause.
b.

Mere time to obtain a warrant not sufficient to invalidate a

warrantless arrest. To be considered likewise is whether or not a
warrant may be issued under the circumstances.

The Supreme Court explained that petitioners were not

caught in the act, does not make their arrest illegal.
Petitioners were found with young boys in their respective
rooms, the one with John Sherman being naked.

In Lo Ho Wing (supra), it was firmly established from the factual findings

of the trial court that the authorities had reasonable ground to believe
that appellant would attempt to bring in contraband and transport it
within the country.

Under those circumstances, the CID agents had reasonable

grounds to believe that petitioners had committed
"pedophilia" defined as psycho-sexual perversion involving
children."
"Pedophilia for unusual sexual activity in which children are
the preferred sexual objects"
Solicitor General's Return of the Writ, on p. 101.

The belief was based on intelligence reports gathered from surveillance

activities on the suspected syndicate, of which appellant was touted to be
a member.
Aside from this, they were also certain as to the expected date and time
of arrival of the accused from China.
But such knowledge was clearly insufficient to enable them to fulfill the
requirements for the issuance of a search warrant.

While not a crime under the Revised Penal Code, it is a

behavior offensive to public morals and violative of the
declared policy of the State to promote and protect the
physical, moral, spiritual, social well-being of our youth.

Still and all, the important thing is that there was probable cause to
conduct the warrantless search, which must still be present in such a
case.
In People v. Montilla, the opportunity to obtain a warrant was not
considered as sufficient to invalidate the legality of the warrantless arrest.

c.

The police officers were tipped off by an informer about the

illegal trade of the accused.

The informant did not know to whom the drugs would be delivered and at
which particular part of the barangay there could be such delivery or the
precise time of the suspect's arrival, or of his means of transportation, the
container or contrivance wherein the drugs were concealed and whether
the same were arriving with, or being brought by someone separately
from the courier.

The exact location where this trading in drugs was taking

place was given to them.
They witnessed the person hand deliver a suspicious stuff to
the tricycle driver who in turn gave something to the
person.

The court ruled that in determining the opportunity for obtaining

warrants, not only the intervening time is controlling but all the coincident
and ambient circumstances should be considered especially in rural areas.

The suspicious stuff taken from the accused were confirmed

to be marijuana after tests were conducted on them.

Shift In Jurisprudence: Warrantless Arrest Under Section 5(a) Based On

Reasonable Ground of Suspicion

The attending circumstances taking place before their eyes

led the police officers to reasonably conclude that an offense
was actually being committed.

Probable Cause Based on Surveillance; No Crime Committed

In Harvey v. CID Commissioner Santiago, the arrest of

143

People v. Allan Rodriguez

Reasonable ground based on tip of informer delivery of
suspicious stuff to tricycle driver justified warrantless arrest.

For, under the circumstances, the information relayed was too sketchy
and not detailed enough for the obtention of the corresponding arrest or
search warrant.

a.

Reasonable Ground to Believe Rule Applied

d.

Personal Knowledge Under Section 5(a) Was Not Likewise

Strictly Observed in the Following Cases:

1)

In these cases, the fact that the search yielded possession

of illegal articles was included as a justification for a
warrantless

In Umil v. Ramos, one of the petitioners, Rolando Dural who was

then confined in the hospital for a gunshot wound was positively
identified as a member of the sparrow unit who went on top of the
hood of the CAPCOM Mobile patrol car.

Nor was he arrested just after the commission of the offense for his
arrest came a day after the shooting incident. He was arrested in the
hospital. Seemingly, his arrest without warrant is unjustified.

Meaning of Personal Knowledge of Facts Constituting Probable Cause

Sufficient

The Court, however, justified the arrest of Rolando Dural for being a
member of the New People's Army (NPA) an outlawed subversive
organization.

In its resolution denying the Motion for Reconsideration in the

Umil v. Ramos cases, the majority opinion explained the
meaning of Personal Knowledge of Facts, as follows:

"Subversion being a continuous offense, the arrest of Rolando Dural

without warrant is justified as it can be said that he was committing
an offense when arrested.

It has been ruled that 'Personal Knowledge of Facts,' in arrests

without warrant must be based upon probable cause, which
means an actual belief or reasonable grounds of suspicion.

The crimes of rebellion, subversion, conspiracy or proposal to commit

such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct assaults against
the State are in the nature of continuing crimes."
The Court then went on to quote Garcia-Padilla v. Enrile,91 where the
Supreme Court held:

The grounds of suspicion are reasonable when, in the absence of

actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.

(c)
(d)

2)

"The record shows that Domingo Anonuevo and Ramon Casiple were
carrying unlicensed firearms and ammunition in their persons when
they were apprehended."
4)

In Ocaya u. Aguirre, the arrest without warrant, of Vicky Ocaya was

justified under the Rules, since she had with her unlicensed
ammunition when she was arrested.
The record of this case shows that on 12 May 1988, agents of the PC
Intelligence and investigation of the Rizal PC-INP Command, armed
with a search warrant issued by Judge Eutropio Migrino of the
Regional Trial Court ofPasig, Metro Manila, conducted a search of a
house located at Block 19, Phase II, Marikina Green Heights,
Marikina, Metro Manila, believed to be occupied by Benito Tiamson,
head of the CPP-NPA.
In the course of the search, Vicky Ocaya arrived in a car driven by
Danny Rivera.

Clearly then, the arrest of the herein detainees was well within the
bounds of the law and existing jurisdiction in our jurisdiction."

Subversive documents and several rounds of ammunition for a .45

cal. pistol were found in the car of Vicky Ocaya.

In G.R. Nos. 84581-82, the arrest of Amelia Roque and Wilfredo

Buenaobra who admitted membership in the NPA and officers and/or
members of the NUFC-CPP were likewise justified for the same
reasons stated in UMIL.

As a result, Vicky Ocaya and Danny Rivera were brought to the PC

Headquarters for investigation. When Vicky Ocaya could not produce
any permit or authorization to possess the ammunition, an
information charging her with violation of P.D. No. 1866 was filed
with the Regional Trial Court of Pasig, Metro Manila.

The arrest without warrant of Roque was additionally justified as she

was, at the time of apprehension, in possession of ammunition
without license to possess.
3)

Voluminous subversive documents

Firearms and ammunitions.

Anonuevo and Casiple claim that they were unlawfully arrested

because there was no previous warrant of arrest. The Supreme Court
held the claim as without merit.

The crimes of insurrection or rebellion, subversion, conspiracy or

proposal to commit such crimes, and other crimes and offenses
committed in the furtherance on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation
No. 2045, are all in the nature of continuing offenses which set them
apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude.

The Continuing Crime Principle to Justify Warrantless Arrest

The court then proceeded to give a brief narration of the facts

and events surrounding each of the eight petitioners.

When frisked, the agents found them to be loaded guns. Anonuevo

and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any.
Hence, they were brought to PC Headquarters for investigation.
Found in their possession were the following articles:

"From the facts as above narrated, the claim of the petitioners that
they were initially arrested illegally is, therefore, without basis in law
and in fact.

A reasonable suspicion therefore must be founded on probable

cause, "coupled with good faith on the part of the peace officers
making the arrest."

The Supreme Court in a per curiam decision, however, found

that the persons in whose behalf these petitions for habeas
corpus have been filed, were freshly committed and that the
accused
were
actually
committing
an
offense,
when
apprehended, so that their arrests without a warrant were
clearly justified.

The record of these two (2) cases shows that at about 7:30 o'clock in
the evening of August 13,1988, Domingo T. Anonuevo and Ramon
Casiple arrived at the house of Renato Constantino at Marikina
Heights, Marikina, which was still under surveillance by military
agents. The military agents noticed bulging objects on their waistlines.

The Supreme Court found that he was not arrested while in the act
of shooting the two soldiers. He was charged with the crime of
Double Murder with Assault upon Agents of Persons in Authority.

Arrest under Section 5(a) although the arresting officer at

the time of arrest has no personal knowledge of a crime
being committed in their presence as prescribed in U.S. v.
Samonte (supra); Sayo v. Chief of Police (supra); People v.
Burgos (supra); and People v. Posadas

The Umil u. Ramos, and seven other petitions for habeas corpus
were all based on the ground that the arrests of the petitioners
were made without warrant and that no preliminary investigation
was first conducted so that the information filed against them
are void.

and ammunition for which they had no license to possess or carry.

The case is docketed therein as Criminal Case No. 737. Danny

Rivera, on the other hand, was released from custody.

In Anonuevo v. Ramos, the arrest of Domingo Anonuevo and Ramon

Casiple without a warrant was also found to be justified.
Both are admittedly members of the standing committee of the NUFC
and, when apprehended in the house of Renato Constantino, they
had a bag containing subversive materials, and both carried firearms

144

In answer to her claims that she'.,was illegally arrested, the

Supreme Court held that Vicky Ocaya was arrested in flagrante
delicto so that her arrest without a warrant is justified.
5)

In Espiritu v. Lim, the respondents claim that the petitioner was

lawfully arrested without a judicial warrant of arrest (on November

23) since petitioner when arrested had in fact just committed an

offense in the afternoon of 22 November 1988, during a press
conference of the National Press Club.
Deogracias Espiritu through tri-media was urging all drivers and
operators to go on nationwide strike on November 23, 1988, to force
the government to give in to their demands to lower the prices of
spare parts, commodities, water and the immediate release from
detention of the president of the PISTON (Pinagkaisahang Samahan
ng Tsuper at Operators Nationwide).

fulfillment thereof, the indubitable existence of a crime.

For the detention to be perfectly legal, it is sufficient that the person
in authority making the arrest has reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime
and that the same grounds exist to believe that the person sought to
be detained participated therein."

Further heard was Deogracias Espiritu taking the place of PISTON

president Medardo Roda and also announced the formation of the
Alliance Drivers Association to go on nationwide strike on November
23, 1988.
Policemen waited for petitioner outside the National Press Club in
order to investigate him, but he gave the lawmen the slip.
He was next seen at about 5:00 o'clock that afternoon at a gathering
of drivers and symphathizers at the corner of Magsaysay Blvd. and
Valencia Street, Sta. Mesa, Manila where he was heard to say:
"Bukas tuloy ang welga natin, sumagot no. ang Cebu at Bicol na
kasali sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno
ni Cory ang gusto noting pagbaba ng halaga ng spare parts, bilihin at
ang pagpapalaya sa ating pinuno na si Ka Roda hanggang sa
magkagulo na."
The police finally caught up with the petitioner on 23 November
1988. He was invited for questioning and brought to Police
headquarters after which an Information for violation of Art. 142 of
the Revised Penal Code was filed against him before the Regional
Trial Court of Manila.
The Supreme Court held that the arrest of petitioner without a
warrant is in accordance with the provisions of Rule 113, Sec. 5(b).
6)

In Nazareno v. Station Commander, the record of this case shows

that at about 8:30 o'clock in the morning of 14 December 1988, one
Romulo Bunye II was killed by a group of men near the corner of T.
Molina and Mendiola Streets in Alabang, Muntinlupa, Metro Manila.
One of the suspects in the killing was Ramil Regala who was arrested
by the Police on 28 December 1988. Upon questioning, Regala
pointed to Narciso Nazareno as one of his companions in the killing
of the said Romulo Bunye II.
In view thereof, the police officers, without warrant, picked up
Narciso Nazareno and brought him to the police headquarters for
questioning. The Supreme Court held:
"Evidently, the arrest of Nazareno was effected by the police without
warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was
positively implicated by his co-accused Ramil Regala in the killing of
Romulo Bunye II; and after investigation by the police authorities. As
held in People v. Ancheta:
"The obligation of an agent of authority to make an arrest by reason
of a crime, does not presuppose as a necessary requisite for the

145

THE PRINCIPLE OF KNOWLEDGE OF PROBABLE CAUSE TO

JUSTIFY WARRANTLESS ARREST

the travelling bag and carton box which appellant was carrying
at the time.

In People v. Malmstedt

The court held that the officers thus realized that he was their
man even if he was simply carrying a seemingly innocent pair of
luggage for personal effects.

The receipt of information by NARCOM that a Caucasian coming from

Sagada had prohibited drugs in his possession, plus the suspicious failure
of the accused to produce his passport, taken together as a whole, led the
NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities.
From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused.
In other words, the acts of the NARCOM officers in requiring the accused
to open his pouch bag and in opening one of the wrapped objects found
inside said bag (which was discovered to contain hashish) as well as the
two (2) travelling bags containing two (2) teddy bears with hashish
stuffed inside them were prompted by accused's own attempt to hide his
identity by refusing to present his passport, and by the information
received by the NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession.
To deprive the NARCOM agents of the ability and facility to act
accordingly, including to search even without warrant, in the light of such
circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
Accused was searched and arrested while transporting prohibited drugs
(hashish).
A crime was actually being committed by the accused and he was caught
in flagrante delicto.
Thus, the search made upon his personal effects falls squarely under
paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest."
While it is true that the NARCOM officers were not armed with a search
warrant when the search was made over the personal effects of accused,
however, under the circumstances of the case, there was sufficient
probable cause for said officers to believe that accused was then and
there committing a crime.
Sufficiency of Knowledge of Probable Cause Reiterated En Bane

Probable cause as a ground to justify a warrantless arrest in

flagrante was reiterated in the en bane decision in People u.
Montilla.
In this case, an informer informed the police the day before that
a drug courier whom he could recognize would be arriving in
Cavite from Baguio City.
As soon as the appellant had alighted from the passenger
jeepney the informer at once indicated to the officers that their
suspect was at hand pointing to him from the waiting shed, the
informer told them that the marijuana was likely hidden inside

The Court therein wrote: "the apprehending officer must have

been spurred by probable cause in effecting an arrest which
could be classified as one in cadence with the instances of
permissible arrests set out in Section 5(a)."
According to the court, the conventional view is that probable
cause, while a relative term the determination of which must be
resolved according to the facts of each case, is understood as
having reference to facts and circumstances which could lead a
reasonable, discreet, and prudent man to believe and conclude
as to the commission of an offense, and that the objects sought
in connection with the offense are in the place sought to be
searched.
The court pointed out that under Rule 112 of the Rules of Court,
the quantum of evidence in preliminary investigation is such evidence as suffices to "engender a well founded belief as to the
fact of the commission of the crime and the respondent's
probable guilt thereof.

packed inside a plastic bag.

In determining whether the warrantless search and seizure was
valid.
The Court noted that there was ample opportunity to obtain a
warrant of arrest. The identity of the accused was ascertained.
The accused was not acting suspiciously, and distinguished the
case:
a.

More significantly, Tangliben was acting suspiciously.

His actuations and surrounding circumstances led the
policemen to reasonably suspect that Tangliben is
committing a crime.
In instant case, there is no single indication that Aruta was
acting suspiciously.
b.

It has the same meaning as the related phraseology used in

other parts of the same Rule, that is, that the investigating fiscal
"finds cause to hold the respondent for trial," or where "a
probable cause exist."

Malmstedt was searched abroad a moving vehicle, a legally

accepted exception to the warrant requirement, Aruta on
the other hand, was searched while she was about to cross
the street.

COMPARE:

WHEN WARRANTLESS ARREST BASED ON INFORMATION

INVALID
c.

from People v. Bagista, where probable cause was drawn

from the fact that the accused fitted the description given by
the NARCOM informant and that it involves a search of a
moving vehicle plus the fact the police officers erected a
checkpoint in view of the confidential information from the
regular informant that
a woman having the same
appearance as that of the accused would be bringing
marijuana from up to north.

d.

from Manalili v. Court of Appeals, where the court held that

the policemen had sufficient reason to accost accused to
determine if he was actually "high" on drugs due to
suspicious actuations, he was observed to have reddish eyes

The police proceeded to the place at 4:00 p.m. of the following

day and deployed themselves near the PNB. A Victory Liner Bus
arrived.
Two females and a male got off, and the pointed to "Aling Rosa"
carrying a traveling bag. The police approached her and inquired
about the contents of the traveling bag which she handed to the
police, who, upon inspection found dried leaves of marijuana

146

from People v. Malmstedt. In Malmstedt, where there was

no reasonable time for the police authorities to obtain a
search warrant, and his actuations also aroused suspicion of
the officers conducting the operation.
In Aruto, there was time to obtain a search warrant, her
identity was priorly ascertained, and she was not acting
suspiciously.

It should, therefore, be in that sense, wherein the right to effect

a warrantless arrest should be considered as legally authorized.

In People v. Aruta, the police was tipped off by his informant

that a certain "Aling Rosa" will be arriving from Baguio City the
following day with a large volume of Marijuana.

from People v. Tangliben (supra), where policemen were

confronted with an on the spot tip. Moreover, the policemen
knew that the Victory Liner compound is being used by drug
traffickers as their business address.

and to be walking in swaying manner he appeared to be

trying to avoid the policemen coupled with the fact that
based on the information, this area was a haven for drug
addicts.
The Court noted that in all the above-cited cases, there was
information received which became the bases for conducting the
warrantless search.
Furthermore, additional factors and circumstances were present
which, when taken together with the information constituted
probable causes which justified the warrantless searches and
seizures in each case.
No reference was made to Montilla.
In applicable earlier decisions, the Supreme Court held that
there was probable cause in the following instances:
(a) where the distinctive odor of marijuana emanated from the
plastic bag carried by the accused;
(b) where an informer positively identified the accused who was
observed to have been acting suspiciously;
(c) where the accused fled when accosted by policemen;
(d) where the accused who were riding a jeepney were stopped
and searched by policeman who had earlier received
confidential reports that the said accused would transport a
large quantity of marijuana; and
(e) where the moving vehicle was stopped and searched on the
basis of intelligence information and clandestine reports by a
deep penetration agent or spy one who participated in the
drug smuggling activities of the syndicate to which the
accused belonged the said accused where bringing
prohibited drugs into the country
Other Cases where there was no Probable Cause
There is, no probable cause where the arresting team was only
armed with knowledge of the suspect's "attire" which the witness
could not even remember.
The team did not have a physical description of the suspect nor
his name.
They were not even given a specific place within which to target
their search of the suspect, only a vicinity of the Muslim Area in
Quiapo, near the Muslim Mosque.

Yet the arresting team directly zeroed in on the accused and his
companions who were only eating halo-halo at a small
restaurant, surely not a crime in itself.
While SP04 Clemente claims that accused had a "bulging
waistline," this alone, in the light of the availing circumstances,
is insufficient to constitute probable cause for the arrest of the
accused.
In another case, the police officers were informed that accused
were repacking drugs.
Accompanied by an informer, they peeped first through the
window before they saw the activities of the suspects inside the
room and entered the house and arrested the suspects.
The court held that the arrest, search and seizure were illegal.
They should have first conducted a surveillance considering that
the activities and identities of the suspects were already known
and if there was probable cause, they should have applied for a
search warrant.
The court reiterated the 7 situations of a warrantless search and
held that the arrest, search and seizure do not fall on any of
them.
In another case, the court noted that the ETC never took the
pains of pointing to such facts, (constituting probable cause) but
predicated mainly its decision on the finding that "accused was
caught red-handed carrying the bag-full of [s]habu when
apprehended."
In short, there is no probable cause.
At least in People v. Tangliben, the Court agreed with the lower
court's finding that compelling reasons (e.g., accused was acting
suspiciously, on the spot identification by an informant that
accused was transporting prohibitive drug, and the urgency of
the situation) constitute of probable cause impelled.
In another case, the Solicitor General proposes that the following
details are suggestive of probable cause persistent reports of
rampant smuggling of firearm and other contraband articles,
CHUA's watercraft differing in appearance from the usual fishing
boats that commonly cruise over the Bacnotan seas, CHUA's
illegal entry into the Philippines (he lacked the necessary travel
documents or visa), CHUA's suspicious behavior, i.e., he
attempted to flee when he saw the police authorities, and the
apparent ease by which CHUA can return to and navigate his
speedboat with immediate dispatch towards the high seas,
beyond the reach of Philippine laws.

147

The Court, however, found that these do not constitute

"probable cause."
Tell-tale Clues of Probable Cause Reiterated
None of the telltale clues, e.g., bag or package emanating the
pungent odor of marijuana or other prohibited drugs confidential
report and/or positive identification by informers of courier(s) of
prohibited drug and/or the time and place where they will
transport/ deliver the same, suspicious demeanor or behavior
and suspicious bulge in the waist accepted by this Court as
sufficient to justify a warrantless arrest exists in this case.
There was no classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited drug on the
date in question.
CHUA was not identified as a drug courier by a police informer or
agent.
The fact that the vessel that ferried him to shore bore no
resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an
offense.
And despite claims by CID and BADUA that CHUA attempted to
flee, ALMOITE testified that the latter was merely walking and
oblivious to any attempt at conversation when the officers
approached him.
In People v. Luaa, a buy-bust operation was conducted against
the accused. After he had gone inside his house and returned
with the three tea bags of marijuana and received the marked
money, the designated poseur-buyer gave the signal to his
fellow police officers who closed in and arrested the accused.
In the course of the arrest, a police officer noticed something
bulging at accused's waistline, which turned out to be an
unlicensed .38 caliber "paltik" with two live bullets.
Accused was charged with illegal possession of firearm.
The search was held to be a valid incident of a lawful arrest.
BUY-BUST OPERATIONS CONSIDERED AS IN FLAGRANTE
ARRESTS
Buy-Bust Operations Search and Seizure Pursuant to BuyBust Operation
What is a buy-bust operation?

A buy-bust operation is far variant from an ordinary arrest; it is

a form of entrapment which has been repeatedly accepted to be
valid means of arresting violators of the Dangerous Drugs Law.
In a buy-bust operation, the violator is caught in flagrante
delicto and the police officers conducting the operation are not
only authorized but duty-bound to apprehend the violator and to
search him for anything that may have been part of or used in
the commission of the crime.
In flagrante arrests are usually made in drug cases during a buybust operation.
A buy-bust operation is a form of entrapment employed by
peace officers to catch a malefactor in flagrante delicto.
It is the employment by peace officers to catch a malefactor in
flagrante delicto.
It is the employment of such ways and means for the purpose of
entrapping or capturing a lawbreaker.
The term, in connection with violation of the Dangerous Drugs
Act, is a form of entrapment employed by peace officers to trap
and catch malefactor in flagrante delicto.
But, while buy-bust operation is a recognized means of
entrapment for the apprehension of drug pusher, it does not
always commend itself as the most reliable way to go after
violators of the Dangerous Drugs Act as it is susceptible to
mistake as well as to harassment, extortion and abuse.
The Court therefore stressed that the "objective" test in buybust operations demands that the details of the purported
transaction must be clearly and adequately shown.
This must start from the initial contact between the poseurbuyer and the pusher, the offer to purchase, the promise or
payment of the consideration until the consummation of the sale
by the delivery of the illegal drug subject of the sale.
The manner by which the initial contact was made, whether or
not through an initial contact was made, whether or not through
an informant, the offer to purchase the drug, the payment of the
"buy-bust" money, and the delivery of the illegal drug, whether
to the informant alone or the police officer, must be the subject
of strict scrutiny by courts to insure that the law-abiding citizens
are not unlawfully induced to commit an offense.
Criminals must be caught but not at all cost.

At the same time, however, examining the conduct of the police

should not disable courts into ignoring the accused's
predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency,
recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the
predisposition of an accused to commit an offense in so far as
they are relevant to determine the validity of the defense of
inducement.
Principle of Continuity-in Buy-Bust Operations

and

Search

Rejected

for

Not

Being

Thus, in People v. Enrile, an arrest based on information of a

person who was entrapped to selling marijuana that the source
of the Marijuana was Enrile and led the police to Enrile's house
and after calling for the latter pointed to him as the source of the
marijuana was held as invalid.
In People v. Bautista, an arrest and search based on information
of the poseur-buyer to the police who were outside the house
waiting that he was able to buy the shabu from the appellant
inside the house who immediately went inside and arrested the
appellant was held as valid.
In People v. Buenaventura, an arrest based on information of the
seller after he was apprehended in a buy-bust operation that the
source of the marijuana was the accused who was then arrested
in a follow-up operation was held as invalid citing the case of
People u. Enrile.
In People v. Merabueno, the Supreme Court found:
DURING THE INVESTIGATION OF BASILIO, THE POLICE
LEARNED THAT THE SUPPLIER OF THE MARIJUANA WAS
CRUZ. A POLICE TEAM WAS DISPATCHED TO ANTIPOLO,
RIZAL, WHERE CRUZ LIVED. THE FIRST MISSION
RETURNED WITHOUT FINDING CRUZ.
The team returned to Antipolo at 7:00 P.M. of the same day. According to
the police, they met Cruz on their way to his house while Cruz claimed
that the police just barged into his house.
But assuming that the version of the police is the correct one, there was
no reasonable basis to place Cruz under arrest without a warrant and then
search him, also without a warrant.

148

This case should be distinguished from People u. Cuachan,

involving a continuing buy bust operation where after the sale,
the shabu was handed to a policeman a block away who after
determining it was shabu which took only a few minutes
immediately proceeded to the house of the appellant and
arrested him.
In the case, the police conducted a buy-bust operation.

The buy-bust operation and the search and seizure pursuant to

the buy-bust operation must be continuous:
Buy-Bust Operation
Continuous.

Certainly, the arrest was not made in the course of a "hot pursuit" of
Cruz, because he was not in Marikina during the "buy-bust" operation. In
such a case, the police should have first secured a warrant of arrest and a
search warrant before they arrested and bodily searched Cruz.

As planned, Pat. Uggadan and the informant proceeded to the

residence of their quarry while Pfc. Reyes and the other
members of the team posted themselves in strategic places.
After a few minutes, Pat. Uggadan together with the informant,
reported to Pfc. Reyes that he had succeeded in buying shabu
from the appellant at the same time presenting the merchandise
to Pfc. Reyes.
After determining it was shabu, Pfc. Reyes and his men
immediately proceeded to the residence of the appellant and
found in one of the rooms several men seated around a table,
engaged in pot session and several paraphernalia.
Pat. Uggadan pointed to the appellant to PFC Reyes as the
person who earlier sold Shabu to him.
Thereupon, Pfc. Reyes frisked accused-appellant and found in his
person the two 100.00 peso bills he gave to Pat. Uggadan as
buy-bust money and a quantity of shabu contained in a plastic
bag.
The court justified the warrantless arrest under Section 5, Rule
113 of the Rules of Court on warrantless arrest and the
obligation of the police to apprehend even without a warrant of
arrest. Pat. Uggadan witnessed the illegal act of selling shabu on
the occasion of the buy-bust operation in front of the room of
the accused.
He did not make the arrest right then and there because there
were only himself and the informant as against the different
male and female voices he heard from both rooms of appellant's
house.
Considering that the operation took place inside the house of
appellant, understandably Pat. Uggadan and his informant had
to get out of the house and inform their backup that the sale had
been consummated.

Furthermore, weighty consideration is the fact that, as

previously stated, Pat. Uggadan immediately gave the shabu to
Pfc. Reyes who was only a block away and after the latter had
determined that it was shabu, which only took a few minutes,
they all immediately proceeded to the house of appellant and
arrested him.

The rule now is the indubitable existence of a crime is not

necessary to justify a warrantless arrest.

It was a continuing buy-bust operation which, as the phrase

connotes, commenced with buying shabu and culminated in his
arrest. Since his arrest was lawful, it follows that the incidental
search was also valid.

Acting on such information and in their presence, their

superior, Captain Castillo, gave the informant marked
money to buy marijuana.

In another case, the arresting officers were informed by the

NARCOM Chief that a transaction had been agreed upon in Las
Pinas, Metro Manila for the delivery of Shabu to take place in
Room No. 77 of the Hyatt Terraces at Baguio City.
Undercover agents waited for the appellant inside the room, but
the latter did not show up in the afternoon, but the following
morning. Appellant with an undercover agent arrived at Room
No. 77.
The latter signaled that appellant had Shabu with him. While the
sale of the Shabu which was agreed upon with a Chinese
business man in Las Pinas, Metro Manila, did not take place in
the presence of the agents, the delivery or attempted delivery of
the subject matter took place in their presence.
The Court held the warrantless arrest of appellant inside Rooir
77 was merely the culmination of an entrapment operation and
that the taking of shabu from appellant was either done
immediately be fore, or was an incident to a lawful arrest.
The Hot Pursuit Arrest
Elements:
a.
b.
c.

Offense have been committed;

Offense has just been committed;
Probable cause based on personal knowledge of facts or
circumstances that persons to be arrested committed it.

a.

First Element: Meaning of Offense Committed

The present rule abandons the pronouncement in People v.
Burgos, that in arrests without a warrant under Section
6(b), it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a
crime.
A crime must in fact or actually have been committed first.

To justify a warrantless arrest not on Sec. 5(a) but Sec.

5(b), the Supreme Court held that the usual observation of
a bulge on the waist of Carillo, along with the earlier report
of gunfire, as well as the peace officer's professional
instincts, are more than sufficient to pass the tests of the
rules.

In People v. Ramos, an informant apprised the police of the

presence of a drug pusher at the corner of 3rd Street and
Rizal Avenue, Olongapo City.

The informant, now turned poseur-buyer, returned with two

sticks of marijuana. Captain Castillo again gave said
informant marked money to purchase marijuana.
The informant poseur-buyer thereafter
another two sticks of marijuana.

returned

with

The police officers then proceeded to the corner of 3rd

Street and Rizal Avenue and effected the arrest of appellant.
The Supreme Court with Justice Gutierrez as ponente, held,
from the above facts, that it may be concluded that the
arresting police officers had personal knowledge of facts
implicating the appellant with the sale of marijuana to the
informant-poseur-buyer.
The arrest was held legal and the consequent search which
yielded 20 sticks of marijuana was lawful for being incident
to a valid arrest.
The fact that the prosecution failed to prove the sale of
marijuana beyond reasonable doubt does not undermine the
legality of the appellant's arrest.
It is not necessary that the crime should have been
established as a fact in order to regard the detention as
legal.
The legality of detention does not depend upon the actual
commission of the crime, but upon the nature of the deed
when such characterization may reasonably be inferred by
the officer or functionary to whom the law at the moment
leaves the decision for the urgent purpose of suspending the
liberty of the citizen.
People v. Euaristo, cited the doctrine in People v. Sucro
(supra), when crime is deemed committed in one's presence
e.g., hears the disturbances created thereby and
proceeds at the scene thereof.

149

Consequently, under the facts, the firearms taken from

Carillo can be said to have been incidental to a lawful and
valid arrest under Sec. 5(b), Rule 113.
b.

Second Element: Meaning of just been committed

"Just been committed" connotes immediacy in point of time,
per dissent of Justice Teehankee cited by C.J., Fernan in his
concurring dissenting in Umil v. Ramos. It means a very
short time ago.
The arrest must be made almost immediately as soon after
these acts, not at anytime after the suspicion of the
arresting officer begins, no matter how long ago the offense
was committed.
The time interval between the actual commission of the
crime and the arrival of the arresting officer must be brief
indeed.
The recency contemplated here, in relation to the making of
the warrantless arrest, is the time when the crime was in
fact committed, and not the time when the person making
the arrest learned or was informed of such commission.
1)

Espiritu v. Lim The arrest of the accused one day

after commission of the crime of Inciting to Sedition
was held to be valid.

2)

People v. Nazareno Arrest made 14 days after commission of the crime is valid.

3)

People v. Sucro

The fact that Macabante, when intercepted by the police,

was caught throwing the marijuana sticks and when
confronted, readily admitted that he bought the same
from the accused-appellant clearly indicates that
accused had just sold the marijuana sticks to
Macabante, and therefore, had just committed an illegal
act of which the police officers had personal knowledge,
being members of the team which monitored Sucre's
nefarious activity.
4)

Rolito Go v. Court of Appeals Arrest six days after

commission of the crime based on information from

alleged eyewitness held unlawful.

Petitioner's arrest took place six (6) days after the

shooting of Maguan. The arresting officers obviously
were not present, within the meaning of Section 5(a),
at the time petitioner had allegedly who Maguan.

A warrantless arrest three (3) days after commission of

the crime or 19 hours thereafter were held to be
unlawful.
c.

Neither could the arrest effected six (6) days after the
shooting be reasonably regarded as effected when [the
shooting had] ii fact just been committed within the
meaning of Section 5(b).

Third Element: Personal Knowledge of Facts

Following are the doctrines under the 1985 Rule on the
meaning of Personal Knowledge of Facts Based on
Information Rejected

3)

In People u. Bautista, held as valid an arrest made by the

station commander, who was outside the house, based on
information of the poseur-buyer after the purchase was
made. Said case cited in U.S. v. Santos, which justified a
warrantless arrest on reasonable ground of suspicion
supported by circumstances strong in themselves as to
warrant a reasonable man in believing the accused to be
guilty.

4)

In People u. Saycon, warrantless arrest of debarking

passenger from vessel based on information was held valid.

Moreover, none of the arresting officers had any

personal knowledge of facts indicating that petitioner
was the gunman who had shot Maguan

1)

People v. Burgos, personal knowledge based on, information by suspect rejected.

2)

Alih v. Castro, (Need for personal knowledge)

3)

People v. Aminnudin Warrantless arrest based on tip

of informer who pointed to the suspect was rejected.

4)

People u. Sucro, citing People v. Bati Police officers

have personal knowledge of the actual commission of
the crime when it had earlier conducted surveillance
activities of the accused.

5)

In People u. Alvarez Arrest based on surveillance by

informant who was once a policeman was held to be
valid.

1)

6)

People v. Briones Warrantless arrest made by a

police officer based on disclosure by eyewitness who
disclosed the identity of the perpetrator was rejected.

2)

7)

People v. Cendana Arrest based on information from

unknown sources given a day after the commission of
the crime was rejected.

8)

People v. Tonog Arrest based on knowledge of facts

gathered from investigation was held valid.

COMPARE: People v. Enrile Information by co-accused that

Enrile gave him the marijuana is invalid.

The information upon which the police acted had been

derived from statements made by alleged eyewitness to
the shooting one stated that petitioner was the
gunman; another was able to take down the alleged
gunman's car plate number which turned out to be
registered in petitioner's wife name.

In People v. Encinada, the court held that: "Raw intelligence

information is not a sufficient ground for a warrantless
arrest."
However, in People v. Montilla (supra), the court observed
that "although information gathered and passed on by law
enforcers are vague and piece-meal, and not as neatly and
completely packaged as one would expect from a
professional spymaster, such tip-offs are sometimes
sucessful as it proved to be in the apprehension of
appellant."

That information did not, however, constitute personal

knowledge.
Personal Knowledge of Facts Based on Information Allowed

In this case there was an oral confession.

9)

Nazareno v. Station Commander of Muntinlupa Arrest

based on information of a suspect 14 days aftel
commission of crime held as valid. This is of doubtful
validity.

10) Rolito Go u. Court of Appeals (supra, February 1992)

Justice Feliciano as ponente Arrest 6 days after
shooting based on information of alleged eyewitnesses
was held unlawful

In People v. Madriaga, personal knowledge based on

information of the co-accused pointing to accused as to
source of marijuana, was held as valid.
In People v. Gerente, the policemen arrested Gerente only
some three (3) hours after Gerente and his companions had
killed Blace.
They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the
instruments of death; a piece of wood and a concrete hollow
which the killers had used to bludgeon him to death.
The eyewitness, Edna Edwina Reyes, reported the
happening to the policemen and pinpointed her neighbor,
Gerente as one of the killers.
Under those circumstances, since the policemen had
personal knowledge of the violent death of Blace and of
facts indicating that Gerente and two others had killed him,
they could lawfully arrest Gerente without a warrant.
If they had postponed his arrest until they could obtain a
warrant, he would have fled the law as his two companions
did.

5)

In Sanchez v. Demetriou. The Warrantless arrest based on

the sworn statement of Centeno by an officer who had no
personal knowledge is unlawful but the defect was cured by
the filing of charges and issuance of warrant of arrest.
In People v. AcoZ, a group held up a passenger jeepney
Policemen immediately responded to the report of the crime.
One of the victims saw four persons walking towards Fort
Bonifacio, one of whom was wearing his jacket.
He pointed them to the policemen. When the group saw the
policemen coming, they ran in different directions.
Three were caught and arrested. Each was found in
possession of an unlicensed revolver and charged with
illegal possession of firearms.
The accused claimed that the warrantless seizure of firearms
was illegal. The Court rejected their plea and held that the
search was a valid incident of a lawful arrest.
The subsequent search of accused-appellant's person and
the seizure from him of the firearm was likewise lawful.

Personal Knowledge of Facts Based on Reasonable Grounds of Suspicion

150

Rule is now the Rule

In its resolution denying the Motion for Reconsideration in the

Umil v. Ramos cases, the majority opinion explained the
meaning of personal knowledge of facts, as follows:

speaking thru Jusice Reynato Puno wrote, "Personal knowledge"

of facts arrests without warrant under Section 5(b) of Rule 113
must be based upon "probable cause" which means an "actual
belief or reasonable grounds of suspicion" and reiterated the rule
in Umil v. Ramos.

"It has been ruled that 'personal knowledge of facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion. (Subjective)

In this case, accused-appellant Gaddao was arrested solely on

the basis of the alleged identification made by her co-accused.

The grounds of suspicion are reasonable when, in the absence of actual

belief of the arresting officers, the suspicion that the person to be arrested
is probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. (Objective)

P03 Manlangit, however, declared in his direct examination that

appellant Doria named his co-accused in response to his (P03
Manlangit's) query as to where the marked money was,
Appellant Doria did not point to appellant Gaddao as his
associate in the drug business, but as the person with whom he
left the marked bills.

A reasonable suspicion therefore must be founded on probable cause,

coupled with good faith on the part of the peace officers making the
arrest."

In ascertaining whether the arrest without warrant is conducted

in accordance with the conditions set forth in section 5, Rule
113, this Court determines not whether the persons arrested are
indeed guilty of committing the crime for which they were
arrested but whether they are probably guilty thereof.
Not evidence of guilt but "probable cause" is the reason that can
validly compel the peace officers in the performance of their
duties and in the interest of public order, to conduct an arrest
without warrant.

This identification does not necessarily lead to the conclusion

that appellant Gaddao conspired with her co-accused in pushing
drugs. Appellant Doria may have left the money in her house.
With or without her knowledge, with or without conspiracy.
Save for accused-appellant Doria's word, the Narcom agents had
no reasonable grounds to believe that she was engaged in drug
pushing.
If there is no showing that the person who effected the
warrantless arrest had, in his own right, knowledge of facts
implicating the person arrested to the perpetration of a criminal
offense, the arrest is legally objectionable.

The Courts should not expect of law-enforcers more than what

the law requires of them.

Said the U.S. Supreme Court:

Under the conditions set forth in Section 5, Rule 113, particularly

paragraph (b) thereof, even if the arrested persons are later
found to be innocent and acquitted, the arresting officers are not
liable.

"THE ARREST MUST STAND UPON A FIRMER GROUND

THAN MERE SUSPICION THOUGH THE ARRESTING
OFFICER NEED NOT HAVE IN HAND EVIDENCE WHICH
WOULD SUFFICE TO CONVICT.

But if they do not strictly comply with the said conditions, the
arresting officers can be held liable for the crime of arbitrary
detention, for damages under Article 32 of the Civil Code and/or
for other administrative sanctions.
The same principle was stated in People u. Aruta.
Probable cause in these cases, must only be based on
reasonable ground of suspicion or belief that a crime has been
committed or is about to be committed.
The foregoing standards were also adopted in warrantless "hot
pursuit" arrest.
Thus, in the 1999 case of People u. Doria, the Court en bane

The quantum of information which constitutes probable cause or evidence

which would warrant a man of reasonable caution in the belief that a
felony has been committed must be measured by the facts of the
particular case.
A significantly lower quantum of proof is required to establish probable
cause than guilt."

Probable cause may, however, not be established simply by

showing that the officer who made the challenged arrest or
search subjectively believed that he had grounds for his action.
Good faith alone is not sufficient.
The probable cause test is an objective one.
The mere subjective conclusion of a police concerning the
existence of probable cause is not binding in the court which

151

must independently scrutinize the objective facts to determine

the existence of probable cause.
In doing so, however, the expertise of the officer are to be taken
into account.
This is as it should be for there would be little merit in securing
able trained men to guard the public peace if their actions were
to be measured by what might be probable cause to untrained
civilians.
In assessing the conduct of the police officer, it is imperative
that the facts be judged against an objective standard.
The test is:
Would the facts available to the officer at the moment of the
seizure or search warrant a man of reasonable caution in the
belief that the action taken was appreciated.
Personal Knowledge of the Death of Victim and Facts Indicating that
Accused Was the Assailant

In People v. Tonog, the police found the lifeless body of a person

with several stab wounds. An informer pointed to the accused as
the person who had killed the victim. That afternoon, police
officers arrested the accused. On their way to the police station,
a policeman noticed bloodstains on the accused's pants which,
when examined, was found to be the same blood type "0" found
on the fatal knife.
The Court upheld the warrantless arrest and ruled that the
blood-stained pants, having been seized as an incident of a lawful arrest, was admissible in evidence.
In People v. Gerente, the police arrested the accused three
hours after the victim had been killed. They went to the scene of
the crime where they found a piece of wood and a concrete
hollow block used by the killers in bludgeoning the victim to
death. A neighbor of the accused who witnessed the killing,
pointed to him as one of the assailants. The warrantless arrest
was held valid under Rule 113, Sec. 5(b).
In People v. Jay son, there was a shooting. The policemen summoned to the scene of the crime and found the victim. Accusedappellant was pointed to them as the assailant only moments
after the shooting. In fact accused-appellant had not gone very
far (only ten meters away from the "lhaw-Ihaw"), although he
was then fleeing. The arresting officers thus acted on the basis
of personal knowledge of the death of the victim and of facts
indicating that accused-appellant was the assailant. The court
upheld the warrantless arrests as valid.

In another case, the police officers were informed that accused

were repacking drugs. Accompanied by an informer. They
peeped first through the window before they saw the activities of
the suspects inside the room and entered the house and
arrested the suspects.
The court held that the arrest, search and seizure were illegal.
They should have first conducted a surveillance considering that
the activities and identities of the suspects were already known
and if there was probable cause, they should have applied for a
search warrant.
The court reiterated the seven (7) situations of a warrantless
search and held that the arrest, search and seizure do not fall on
any of them.
ONLY COURTS COULD DECIDE THE QUESTION OF
PROBABLE CAUSE SINCE THE STUDENTS WERE NOT
BEING ARRESTED IN FLA-GRANTE DELICTO
In Posadas v. The Hon. Ombudsman, the NBI agents tried to
effect an arrest four days after commission of the crime and had
no personal knowledge of any fact which might indicate that the
two students were probably guilty of the crime and what they
had were the supposed positive identification of two alleged
eyewitnesses, the court held this is insufficient to justify the
arrest without a warrant by the NBI.
The Court distinguished the case from that of People v. Tonog,
relied upon by the prosecution to justify the arrest.
In Tonog, the accused voluntarily went upon invitation of the
police officer who later noticed the presence of blood stains on
the pants of the accused.
Upon reaching the police station, the accused was asked to take
off his pants for examination at the crime laboratory.
The question in that case involved the admissibility of the maong
pants taken from the accused.
It is clear that Tonog does not apply to this case.
First, the accused in that case voluntarily went with the police
upon the latter's invitation.
Second, the arresting officer found blood stains an the pants of
the accused, on the basis of which he concluded that the
accused probably committed the crime for which reason the
latter was taken into custody.

Third, the arrest was made on the same day the crime was
committed.
In the words of Rule 113, Sec. 5(b), the crime had "just been
committed" and the arresting officer had "personal knowledge of
the facts indicating that the person to be arrested had
committed it."
The court reiterated the rule in People v. Doria (supra), that:
'"Personal knowledge' of facts in arrests without a warrant under Section
5(b) of Rule 113 must be based upon 'probable cause' which means an
actual belief or reasonable grounds of suspicion.
The grounds of suspension are reasonable when, the absence of actual
belief of the arresting officers, the suspicion that the person to be arrested
is probably guilty of committing the offense is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the
arrest."

To allow the arrest which the NBI intended to make without

warrant would in effect allow them to supplant the courts.
The determination of the existence of probable cause that the
persons to be arrested committed the crime was for the judge to
make.
The law authorities a police officer or even an ordinary citizen to
arrest criminal offenders only if the latter are committing or
have just committed a crime.

Drug "pushers" or couriers do not customarily go about their enterprise or

trade with some external visible sign advertising the fact that they are
carrying or distributing or transporting prohibited drugs.
Thus, the application of the rules in Section 5(a) and (b), Rule 133 of the
Rules of Court needs to take that circumstances into account.
The Court has had to resolve the question of valid or invalid warrantless
arrest or warrantless search or seizure in such cases by determining the
presence or absence of a reasonable or probable cause, before that such a
felony (possessing or transporting or delivering prohibited drugs) was
then in progress.
In Barros, the Court listed the kinds of causes which have been
characterized as probable or reasonable cause supporting the legality and
validity of a warrantless search and a warrantless arrest in cases of this
type:

"THIS COURT HAS IN THE PAST FOUND PROBABLE CAUSE

TO CONDUCT WITHOUT A JUDICIAL WARRANT AN
EXTENSIVE
SEARCH
OF
MOVING
VEHICLES
IN
SITUATIONS WHERE
(1)

(2)

(3)

(4)

Otherwise, we cannot leave to the police officers the

determination of whom to apprehend if we are to protect our
civil liberties.

(5)

This is evident from a consideration of the requirements before a

judge can order the arrest of suspects. Art. Ill, Sec. 2 of the
Constitution.

Caution:

Rule in Drug Cases

there had emanated from a package the distinctive smell of

marijuana;
agents of the Narcotics Command ("Narcom") of the Philippine
National Police ("PNP") had received a confidential report from
informers that a sizeable volume of marijuana would be
transported along the route where the search was conducted;204
Narcom agents were informed or "tipped off" by an undercover
"deep penetration" agent that prohibited drugs would be
brought into the country on a particular airline flight on a given
date;
Narcom agents had received information that a Caucasian
coming from Sagada, Mountain Province, had in his possession
prohibited drugs and when the Narcom agents confronted the
accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification
papers when requested to do so; and
Narcom agents had received confidential information that a
woman having the same physical appearance as that of the
accused would be transporting marijuana."

The government's drive against illegal drugs needs the support

of every citizen.

The Supreme Court in People v. Saycon pointed out that:

But it should not undermine the fundamental rights of every

citizen as enshrined in the Constitution.

"It is important to note that unlike in the case of crimes like, e.g.,
homicide, murder, physical injuries, robbery or rape which by their nature
involve physical, optically perceptible, overt acts, the defense of
possessing or delivering or transporting some prohibited or regulated drug
is customarily carried out without any external signs or indication visible
to police officers and the rest of the outside world.

The constitutional guarantee against warrantless arrests and

unreasonable searches and seizures cannot be so carelessly
disregarded as overzealous police officers are sometimes wont to
do.

152

that any statement he makes may be used as evidence

against him;

Fealty to the constitution and the rights it guarantees should be

paramount in their minds, otherwise their good intentions will
remain as such simply because they have blundered.

Duty of Arresting Officer

The criminal goes free, if he must, but it is the law that sets him
free.

At the time a person is arrested, it shall be the duty of the

arresting officer to inform him of the reason for the arrest and
he must be shown the warrant of arrest, if any.

Nothing can destroy a government more quickly than its failure

to observe its own laws, or worse, its disregard of the charter of
its own existence.

He shall be informed of his constitutional rights to remain silent

and to counsel, and that any statement he might make could be
used against him.

Rule on Escapees

The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient
means by telephone if possible or by letter or messenger.

When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
An officer may arrest without a warrant, a prisoner who has
escaped from custody after trial and commitment, and it has
been held that even a private person may without a warrant,
arrest a convicted felon who has escaped and is at large.
An officer may arrest without a warrant, a prisoner who has
escaped from custody after trial and commitment.
Even a private person may, without a warrant, arrest a convicted
felon who has escaped and is at large, since he might also,
before conviction, have arrested the felon.
Evasion of service of sentence; Arrest, without a warrant,
principle applied. Rule 113 of the Revised Rules of Court may
be invoked in support of this conclusion; for, under Section 6(c)
thereof one of the instances when a person may be validly
arrested without warrant is where he has escaped from
confinement.
Undoubtedly, this right of arrest without a warrant is founded on
the principle that at the time of the arrest, the escapee is in the
continuous act of committing a crime evading the service of
his sentence.

He must be informed that he has the right to be assisted at

all times and have the presence of an independent and
competent lawyer, preferably of his own choice;

d.

He must be informed that if he has no lawyer or cannot

afford the services of a lawyer, one will be provided for him,
and that a lawyer may also be engaged by any person in his
behalf or may be appointed by the court upon petition of the
person arrested or one acting in his behalf;

e.

That whether or not the person arrested has lawyer he must

be informed that no custodial investigation any form shall be
conducted except in the presence of his counsel or after a
valid waiver has been made;

f.

The person arrested must be informed that at any time, he

has the right to communicate or confer by the most
expedient means telephone, radio, letter or messenger
with his lawyer (either retained or appointed), any member
of his immediate family, or any medical doctor, priest or
minister chosen by him or any one from his immediate
family or by counsel or be visited or by conferences with
duly accredited national or international non-governmental
organization. It shall be the responsibility of the officer to
ensure that this is accomplished;

g.

He must be informed that he has the right to waive any of

said rights provided it is made voluntarily, knowingly and
intelligently and ensure that he understood the same;

h.

In addition, if the person arrested waives his right to a

lawyer, he must be informed that it must be done in writing
AND in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insist on his waiver
and chooses to speak;

i.

That the person must be informed that he may indicate in

any manner at any stage of the process that he does not
wish to be questioned with warning that once he makes
such indication, the police may not interrogate him if the
same had not yet commenced or the interrogation must
ceased (sic) if it has already begun;

j.

The person arrested must be informed that his initial waiver

of his right to remain silent, the right to counsel or any of
his rights does not bar him from invoking it at any time
during the process regardless of whether he may have
answered some questions or volunteered some statement;
and

It shall be the responsibility of the arresting officer to see to it

that this is accomplished.
No custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, or by any
person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf.
The right to counsel may be waived but the waiver shall not be
valid unless made with the assistance of counsel.
Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence.
Procedure, Guidelines and Duties of Arresting or Investigating Officer

Considering the heavy penalty of death and in order to ensure

that the evidence against an accused were obtained through
lawful means, the Court as guardian of the rights of the people,
and in the light of the new legal developments, laid down an
updated procedure, guidelines and duties which the arresting,
detaining, inviting or investigating officer or his companions
must do and observe at the time of making arrest and again at
and during the custodial interrogation in accordance with the
Constitution, jurisprudence and Republic Act No. 7438:
a.
The person arrested, detained, invited or under
custodial investigation must be informed in a language
known to and understood by him of the reason for the arrest
and must be shown the warrant of arrest, if any.

SEC. 6.
Time of Making Arrest
SEC. 7.
Method of Arrest by Officer by Virtue of Warrant
SEC. 8.
Method of Arrest by Officer Without Warrant

c.

Every other warnings, information or communication must

be in a language known to and understood by said person;
b.

He must be warned that he has a right to remain silent and

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k.

He must also be informed that any statement or evidence as

the case may be obtained in violation of any of the foregoing
whether inculpatory or exculpatory, in whole or in part shall
be inadmissible in evidence.
SEC. 9.
Method of Arrest by Private Person
SEC. 10.
Officer may Summon Assistance
SEC. 11.
Right of Officer to Break into Building or Enclosure
SEC. 12.
Right to Break Out from Building or Enclosure
SEC. 13.
Arrest After Escape or Rescue
SEC. 14.
Right of Attorney or Relative to Visit Person arrested

Under Republic Act No. 7438:

"SECTION 2(B) ANY PUBLIC OFFICER OR EMPLOYEE, OR

ANYONE ACTING UNDER HIS ORDER OR IN HIS PLACE,
WHO ARRESTS, DETAINS OR INVESTIGATES ANY PERSON
FOR THE COMMISSION OF AN OFFENSE SHALL INFORM
THE LATTER, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT
AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,
PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL
TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION.
If such person cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the investigating
officer.
(a) Any person arrested or detained or under custodial investigation shall
be allowed visits by or conferences with any member of his immediate
family, or any medical doctor or priest or religious minister chosen by him
or by any member of his immediate family or by his counsel, or by any
national non-governmental organization duly accredited by the
Commission on Human Rights or by any international non-governmental
organization duly accredited by the Office of the President.
The person's "immediate family" shall include his or her spouse, fiance or
fiancee, parent or child, brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece, and guardian or ward.

AS USED IN THIS ACT, "CUSTODIAL INVESTIGATION"

SHALL INCLUDE THE PRACTICE OF ISSUING AN
"INVITATION" TO A PERSON WHO IS INVESTIGATED IN
CONNECTION WITH AN OFFENSE HE IS SUSPECTED TO
HAVE COMMITTED, WITHOUT PREJUDICE TO THE
LIABILITY OF THE "INVITING" OFFICER FOR ANY
VIOLATION OF LAW.
SEC. 4 A) ANY ARRESTING PUBLIC OFFICER OR
EMPLOYEE, OR ANY INVESTIGATING OFFICER, WHO FAILS
TO INFORM ANY PERSON ARRESTED, DETAINED OR
UNDER CUSTODIAL INVESTIGATION OF HIS RIGHT TO
REMAIN SILENT AND TO HAVE COMPETENT AND
INDEPENDENT COUNSEL PREFERABLY OF HIS OWN
CHOICE, SHALL SUFFER A FINE OF SIX THOUSAND PESOS
(P6,000.00) OR A PENALTY OF IMPRISONMENT OF NOT
LESS THAN EIGHT (8) YEARS BUT NOT MORE THAN TEN
(10) YEARS, OR BOTH.
The penalty of perpetual absolute disqualification shall also be imposed
upon the investigating officer who has been previously convicted of a
similar offense.

THE SAME PENALTIES SHALL BE IMPOSED UPON A PUBLIC

OFFICER OR EMPLOYEE, OR ANYONE ACTING UPON
ORDERS OF SUCH INVESTIGATING OFFICER OR IN HIS
PLACE, WHO FAILS TO PROVIDE A COMPETENT AND
INDEPENDENT COUNSEL TO A PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION FOR
THE COMMISSION OF AN OFFENSE IF THE LATTER
CANNOT AFFORD THE SERVICES OF HIS OWN COUNSEL.
B)
ANY PERSON WHO OBSTRUCTS, PREVENTS OR
PROHIBITS ANY LAWYER, ANY MEMBER OF THE
IMMEDIATE FAMILY OF A PERSON ARRESTED, DETAINED
OR UNDER CUSTODIAL INVESTIGATION, OR ANY MEDICAL
DOCTOR OR PRIEST OR RELIGIOUS MINISTER CHOSEN BY
HIM OR BY ANY MEMBER OF HIS IMMEDIATE FAMILY OR
BY HIS COUNSEL, FROM VISITING AND CONFERRING
PRIVATELY WITH HIM, OR FROM EXAMINING AND
TREATING HIM, OR FROM MINISTERING TO HIS
SPIRITUAL NEEDS, AT ANY HOUR OF THE DAY OR, IN
URGENT CASES, OF THE NIGHT SHALL SUFFER THE
PENALTY OF IMPRISONMENT OF NOT LESS THAN FOUR
(4) YEARS NOR MORE THAN SIX (6) YEARS, AND A FINE
OF FOUR THOUSAND PESOS (P4,000.00).
UNDER SEC. 2(D), REPUBLIC ACT NO. 7348 ANY
EXTRAJUDICIAL CONFESION MADE BY A PERSON,
ARRESTED,
DETAINED
OR
UNDER
CUSTODIAL
INVESTIGATION"
(WHICH
SHALL
INCLUDE
AN

154

"INVITATION FOR INVESTIGATION" SHALL BE IN

WRITING AND SIGNED BY SUCH PERSON IN THE
PRESENCE OF HIS COUNSEL OR IN THE LATTER'S
ABSENCE, UPON A VALID WAIVER, AND IN THE PRESENCE
OF ANY OF THE PARENTS, ELDER BROTHERS AND
SISTERS, HIS SPOUSE, THE MUNICIPAL MAYOR, THE
MUNICIPAL JUDGE, DISTRICT SCHOOL SUPERVISOR, OR
PRIEST OR MINISTER OF THE GOSPEL AS CHOSEN BY
HIM; OTHERWISE, SUCH EXTRAJUDICIAL CONFESSION
SHALL BE INADMISSIBLE AS EVIDENCE IN ANY
PROCEEDING.
In other words, if there is a valid waiver, and the lawyer's presence is waived, the confession must still be signed in the
presence of any persons enumerated above.
1.

Application of Actual Force, Manual Touching of the

Body, Physical Restraint or a Formal Declaration of
Arrest is Not Required
It is enough that there be an intent on the part of one of the
parties to arrest the other and intent on the part of the
other to submit, under the belief and impression that
submission is necessary.1
a.

A letter-invitation is equivalent to arrest.

Where the invitation comes from a powerful group
composed predominantly of ranking military officers and
the designated interrogation site as a military camp,
this is obviously a command or an order of arrest.

b.

Under R.A. No. 7438, the requisites of a custodial

interrogation are applicable even to a person not
formally arrested but merely invited for questioning,

2. Illegality of Arrest Does Not Render the Proceedings

Void where No timely Objection to the Irregularity is
Made
a.

See also People v. Macam3 for waiver of illegality of

arrest.
A motion to quash should be filed.
The illegality of the arrest or the procedure in acquiring
jurisdiction of the person of an accused must be raised
before plea.
[I]t is too late for appellant to raise the question of his
arrest without a warrant.
When accused-appellant was arrested and a case was

filed against him, he pleaded not guilty upon

arraignment, participated in the trial and presented his
evidence.
Appellant is thus estopped from questioning the legality
of his arrest.
It is well-settled that any objection involving a warrant
of arrest or procedure in the acquisition by the court of
jurisdiction over the person of an accused must be
made before he enters his plea, otherwise the objection
is deemed waived.
Besides, this issue is being raised for the first time by
appellant.
He did not move for the quashal of the information
before the trial court on this ground.
Consequently, any irregularity attendant to his arrest, if
any, was cured when he voluntarily submitted himself
to the jurisdiction of the trial court by entering a plea of
not guilty and by participating in the trial.
Moreover, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after the trial free
from error.
b.

Thus, the unlawfulness of an arrest does not affect the

jurisdiction of the Court.
In other words, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after trial free
from error.

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