ARTICLES 124, 125 AND 126

REVISED PENAL CODE

Art. 124. Arbitrary detention. — Any public officer or employee who,

without legal grounds, detains a person, shall suffer;

1. The penalty of arresto mayor in its maximum period to prision correccional in

its minimum period, if the detention has not exceeded three days;

2. The penalty of prision correccional in its medium and maximum periods, if the
detention has continued more than three but not more than fifteen days;

3. The penalty of prision mayor, if the detention has continued for more than
fifteen days but not more than six months; and

4. That of reclusion temporal, if the detention shall have exceeded six months.

The commission of a crime, or violent insanity or any other ailment requiring the
compulsory confinement of the patient in a hospital, shall be considered legal grounds for
the detention of any person.

Art. 125. Delay in the delivery of detained persons to the proper judicial
authorities. — The penalties provided in the next preceding article shall be imposed upon
the public officer or employee who shall detain any person for some legal ground and
shall fail to deliver such person to the proper judicial authorities within the period of;
twelve (12) hours, for crimes or offenses punishable by light penalties, or their
equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional
penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable
by afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention
and shall be allowed upon his request, to communicate and confer at any time with his
attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25,
1987, respectively)

Art. 126. Delaying release. — The penalties provided for in Article 124 shall
be imposed upon any public officer or employee who delays for the period of time
specified therein the performance of any judicial or executive order for the release of a
prisoner or detention prisoner, or unduly delays the service of the notice of such order to
said prisoner or the proceedings upon any petition for the liberation of such person.

ART.124 -- ARBITRARY DETENTION.

Elements:

1. That the offender is a public officer or employee.

2. That he detains a person.
3. That the detention is without legal grounds.

The public officers liable for arbitrary detention must be vested with authority to
detain or order the detention of persons accused of a crime, but when they detain a person
they have no legal grounds therefore.

Such public officers are the policemen and other agents of the law, the judges or
mayors.
 If the detention is perpetrated by other public officers, the crime committed may
be illegal detention, because they are acting in their private capacity.

If the offender is a private individual, the act of detaining another is illegal

detention under Article 267 or Article 268.

But private individuals who conspired with public officers in detaining a person
are guilty of arbitrary detention.

A person is detained when he is placed in confinement or there is restraint of his

person.

The following are legal grounds for the detention of any person:

(1) The commission of a crime.

(2) Violent insanity or other ailment requiring the compulsory confinement of the
patient in a hospital.

Arrest without a warrant is the usual cause of arbitrary detention.

A peace officer must have a warrant of arrest properly issued by the court in order
to justify an arrest. If there is no such warrant of arrest, the arrest of a person by a public
officer may constitute arbitrary detention.

Arrest without warrant -- When lawful

Rule 113, Sec. 5, Revised Rules of Criminal Procedure provides:

SEC. 5. Arrest without warrant; when lawful. – A peace officer or

a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(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; and

(c) 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
is temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

Meaning of phrase "in his presence" -- When the officer sees the offense being
committed, although at a distance, or hears the disturbance created thereby and proceeds
at once to the scene thereof, or when the offense is continuing or has not been
consummated at the time the arrest is made, offense is said to be committed in his
presence.
 A peace officer can justify an arrest without warrant if (1) there is a reasonable
ground of suspicion that a person has committed or is about to commit an offense or
breach of the peace; and (2) he acts in good faith.

Even if the suspected person is later found to be innocent, the peace officer is not
liable, provided that said two requisites for justified arrest without warrant are present.

Actual commission of crime by the person detained is not necessary to justify his
detention.

The legality of the detention of a person does not depend upon the actual
commission of a crime by him, but upon the nature of his deed when its characterization
as a crime may reasonably be inferred by the officer to whom the law at the moment
leaves the decision for the urgent purpose of suspending the liberty of that person.

Arbitrary detention could be committed through imprudence.

ART. 125 -- DELAY IN THE DELIVERY OF DETAINED PERSONS

Elements:

1. That the offender is a public officer or employee.

2. That he has detained a person for some legal grounds.
3. That he fails to deliver such person to the proper judicial authority within:

(1) 12 hours, if detained for crimes punishable by light penalties or their

equivalent
(2) 18 hours, for crimes punishable by correcional penalties or their equivalent
(3) 36 hours, for crimes punishable by capital punishment or afflictive penalties or
their equivalent

A private individual who make a lawful arrest must also comply with the
requirement prescribed in Art. 125. if he fails to do so, he shall be guilty of illegal
detention (Art. 267 or Art. 268), not arbitrary detention.

The periods of time in Art. 125 were applied to arrests made by a private person.

Under Art. 125, the public officer or employee has detained the offended party for
some legal ground. The detention is legal in the beginning, because the person detained
was arrested under any of the circumstances where arrest without warrant is authorized
by law. The detention becomes illegal after a certain period of time, because the offended
party is not delivered to the proper judicial authority, with the period specified by Art.
125.

If the detention of a person is not for some legal ground, it will because under Art.
124, not under Art. 125.

Art. 125 applies only when the arrest is made without warrant of arrest. But the
arrest must be lawful.

If the arrest is made with a warrant of warrant of arrest, the person arrested can be
detained indefinitely until his case is decided by the court or posts a bail for his
temporary liberty.
 The reason for this is that there is already a complaint or information filed against
him with the court which issued the order or warrant of arrest and it is not necessary to
deliver the person thus arrested to the court.

The delivery to the judicial authority of a person arrested without warrant by a

peace officer, does not consist in physical delivery, but in making an accusation or charge
or filing of an information against the person arrested with the corresponding court or
judge, whereby the latter acquires jurisdiction to issue an order of release or of
commitment of the prisoner, because the arresting officer can not transfer to the judge
and the latter does not assume the physical custody of the person arrested.

As the duty of the detaining officer is deemed complied with upon filing of the
complaint, further action rests upon the judicial authority.

Waiver of the provisions of Art. 125. Rule 113 of the Revised Rules of Criminal
procedure provides:

SEC. 6. When accused lawfully arrested without warrant.— When

a person is lawfully arrested without a warrant involving an offense which
requires a preliminary investigation, the complaint or information may be
filed by a prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing rules. 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.

Before the complaint or information is filed, the person arrested

may ask for a preliminary investigation in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel. Notwithstanding the
waiver, he may apply for bail and the investigation must be terminated
within fifteen (15) days from its inception.

After the filing of the complaint or information 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. (7a;
sec. 2, R.A. No. 7438)

Circumstances considered in determining liability of officer detaining a person

beyond the legal period.

For the purpose of determining the criminal liability of an officer detaining a

person for more than the time prescribed by the Penal Code, (1) the means of
communication as well as (2) the hour of arrest and (3) other circumstances, such as the
time of surrender and the material possibility for the prosecutor to make the investigation
and file in time the necessary information, must be taken into consideration (Sayo vs.
Chief of Police of Manila, 80 Phil. 861).

Thus, when the accused were arrested for direct assault, punishable by a
correctional penalty, on the evening of June 17, 1953, the complainant could not be
normally have been filed earlier that 8 o'clock in the morning of June 18, because
government offices open for business usually at 8 o'clock in the morning and close at 5
o'clock in the afternoon (People vs. Acosta, C.A., 54 O.G. 4742).
 The illegality of detention is not cured by filing of the information in court.

The detaining officer is liable under Art. 125, even if an information was filed
with the court, because a violation had already been committed before the information
was filed.

If no charge is filed by prosecutor in court within the period fixed in Art. 125, the
arresting officer must release the detainee, otherwise he will be guilty under Art. 125.
Art. 124 distinguished from Art. 125

In Art. 124, the detention is illegal from the beginning; in Art. 25, the detention is
legal from the beginning but the illegality of detention starts from the expiration of the
periods of time specified in Art. 125, without the person detained having been delivered
to proper judicial authority.

ART. 126 -- DELAYING RELEASE

Three acts punishable under Art. 126.

1. By delaying the performance of a judicial or executive order for the release of the
prisoner.
2. By unduly delaying the service of notice of such order to said prisoner,
3. By unduly delaying the proceedings upon any petition for the liberation of such
person.

Elements:

1. That the offender is a public officer or employee.

2. That there is judicial or executive order for the release of a prisoner or detention
prisoner, or that there is a proceeding upon a petition for the liberation of such person.
3. The offender without good reason delays (1) the service of the notice of such order to
the prisoner, or (2) the performance of such judicial or executive order for the release
of the prisoner, or (3) the proceedings upon a petition for the release of such person.

The public officers who are most likely to commit the offense penalized in Art.
126 are the wardens and peace officers temporarily in charge of the custody of prisoners
or detained persons.