WEEK 15 PART 2 Rule 117, Sections 5, 6 and

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Sun, 10/18 9:15PM • 15:36

SUMMARY KEYWORDS
dismissal, case, accused, revived, provisional, double jeopardy, information, court, rule, order, section,
quash, witness, criminal liability, offense, filing, express consent, complaint, sustaining, prosecution

00:00
Hi class in this audio lecture I will discuss sections five, six and eight of rule 117. Section five provides
effect of sustaining the motion to wash. If the motion to quash is a stain. The court may order that
another complaint or information defied except as provided in Section six of this rule, if the order is
made that use if in custody shall be discharged unless admitted to bail, if no order is made, or if having
been made no new information is filed within the time specified in the order or within such further time
as the court may allow for good cause that used if in Casa de shall be discharged unless he is also in
custody for another charge. Section six provides, on the other hand order sustaining the motion to
quash not a bar to another prosecution exception, an order so staining the motion to quash is not a bar
to another prosecution for the same offense, unless the motion was based on the grounds specified in
section three G. And three I 3g is when the criminal liability or criminal offense is extinguished. And I of
course, it's our discussion on double jeopardy. So if the motion to quash is sustained, meaning it was
granted by the court, the court may order that another complaint or information be fired, except when it
is grounded on double jeopardy or extinction of criminal liability if the order is made that queues in
custody shall be discharged unless he is admitted to bail. If no order is made for the filing of a new
complaint or information, or if having been made no new complaint or information is filed within the time
specified in the order, or within such further time as the court may allow for good course, that use in
custody shall be discharged unless he is also in custody for another charge. otherwise stated where the
motion to quash is sustained on the grounds other than those stated in Section six. The Trial Court has
discretion to order the filing of another information within a specified period, which is extendable to such
further time as the court may allow for good Gosh, the order to file another information if determined to
be warranted under their circumstances. So the case must be contained in the same order granting the
motion to quash. If the order sustaining the motion to quash does not order the filing of another
information in said or there becomes final and agricultores at the court may no longer direct the filing of
another information. However, in this instances where a previously discussed no a question of an
information, that's not bar and other prosecution, for example, you if the key the court trying the case
has no jurisdiction, or the court trying the case has no jurisdiction over the person of the accused, or the
person or the officer who filed the information and had no authority to do so. Or that the information or
complaint does not conform substantially to the prescribed form or if the complaint or information is
multiplicity to sorry, the simplest the solicitors so in those incidents, if the motion to quash is sustained,
it is without prejudice to filing a new case, which will no longer know how hopefully will not have the

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same grounds no question information. Now, of course, if this is step, if sustaining the question also
amounts to the attachment of the first Jeopardy, and therefore, a subsequent prosecution will already
amount to double jeopardy, then again, that cannot be pursued knowing the kind of by the because of
the attachment of the first Jeopardy we already bar a prosecution for a second case for the same
offense. Where again, the grounds specified in the motion to quash is extinction of the criminal liability,
or that complaint or information already alleges, justifying or accepting circumstances. While it may not
constitute double jeopardy, but the filing or the filing of the same should not be allowed by the court
because, again, the the question has already said that the fact that the criminal liability or the penalty
there have already been extinguished, or that there is circumstances which justifies or exempts that use
from criminal prosecution. And of course, if the ground is double jeopardy,

04:57
then that already said that

05:00
No prosecution for the same offense can ever be fired against that particular accused. So now let's go
to section eight on provisional dismissal. A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party. The provisional dismissal of
offenses punishable by imprisonment not exceeding six years or a fine of any amount, or both, shall
become permanent one year after the issuance or the order without the case having been revived with
respect to offenses punishable by imprisonment of more than six years, their provisional dismissal shall
become permanent. Two years after the issuance of the order without the case having been revived.
Take note that for provisional dismissal to be valid, the accused must expressly consent to the criminal
case being provisionally dismissed and with notice to the offended party, as defined provisional
dismissal may be that dismissal of a criminal action with the express consent of the accused and
without prejudice that revival within the period prescribed by the rules. The requisites of a provisional
dismissal are as follows, the accused must have given express consent to the provisional dismissal.
Number two, there must be notice to the offended party. And number three, the dismissal must be
without prejudice to its survivor. Under the same section eight, the provisional dismissal of offenses
punishable by imprisonment not exceeding six years, or a fine of any amount or both shall become
permanent, one year after issuance or the order, without the case having been revived. Take note know
that the reckoning period is from or after the issuance of the order.

06:52
No in the same vein, if it is

06:55
an offence punishable by imprisonment of more than six years, the provisional dismissal shall become
permanent two years after the issuance of the order without the keys having been revived. But if the
dismissal is made without notice to the offended party, the regulatory period does not

07:13
begin to run. So the effect

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07:16
of the permanency of the dismissal is to bar the filing already viable of the criminal action, as well as the
prosecution of the accused for this defense charge, or for any attempt to commit the same or frustration
they're all for any offense, which necessarily includes or is necessarily included in the offense charge in
the former complaint or information. The dismissal shall become automatically permanent if the case is
not revived within the period required. Such permanent dismissal shall amount to an adjudication of the
case on the merits. Now, take note of this important concept know the time bar rule under section eight
no your one year and two years does not reduce the periods under Article 19. No under prescription

08:07
of the crime.

08:10
It is however, a limitation on the right of the state to revive a criminal case against that use after the
information has been filed but subsequently provisionally dismissed with the express consent of the
accused upon the lapse of the timeline under section eight of dual 117. The state is pursued by
disputable to have abandoned or we've tried to revive the case in prosecute the accused. The dismissal
becomes ipso facto permanent, and those that use can no longer be charged a new for the same crime
or another crime necessarily included there in he is spared from the anguish and anxiety as well as the
expenses in any new indictments for the same offense. The state may revise the criminal case beyond
the one year or two year periods provided that there is a justifiable necessity for the delay. Therefore,
under Section 10 of administrative matter 12 dash 11 dash two dash SC are the guidelines for
negotiate decongesting holding jails by enforcing the rights of the accused persons to bail in the speedy
trial.

09:22
The following are the rules on provisional dismissal.

09:25
A with the delays are due to the absence of an essential witness whose whereabouts are unknown
organic be determined, and therefore are subject to exclusion in determining compliance with the
prescribed time limits, which cause the trial to exceed 180 days. The court should provisionally dismiss
the action with the express consent of the detained accuse, be when the delays are due to the absence
of an essential witness whose presence cannot be obtained by due diligence, though is where abouts
are known. The court shall provisionally dismiss the action with express consent The detained accused
provided that one, the hearing in the case has been previously twice postponed due to the non
appearance of the essential witness. And both the witness and the offended party if they are two
different persons have been given notice of the setting of the case for third hearing, which note this
contains a warning that the case would be dismissed if the essential witness continues to be absent.
And to there is proof of service or the pertinent notices of hearings or sabinus. Upon the essential
witness and offended party at their last known post, or email addresses or mobile phone numbers, net
there see, for the above verbose, the public or private prosecutors show first percent during the trial,
the essential witnesses or witness to the case before anyone else and essential witnesses. One was
testimony dwells on the presence of some or all of the elements of the crime, and your testimony is

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indispensable to the conviction of the accused. Now take note that the provisional dismissal of a case
does not operate as an acquittal. The provisional dismissal of the case does not operate as an
acquittal, since its dismissal was made with the express consent of the accused. Thus there is no
double jeopardy. The requirement that there be an express consent of the accused is obviously
intended to prevent any objection based on the rule and double jeopardy, when the provisionally
dismissed case is revived. Know that under Section seven of rule one ones have been double jeopardy
will apply only if the case is dismissed without the express consent of the accused. So it don't
provisional dismissal is why it's not one of those instances where even if it is the accused, gay who
consented or moved for the dismissal of the case, the first job Jeopardy will attach because the rule
itself provides that the provisional dismissal should be with the express consent of that use. So in
effect, when the case is provisionally dismissed, it is not tantamount to the first Jeopardy attaching. And
even when the provisional dismissal becomes permanent, because of the time bar rule, no you one
year or two year period that is provided for under section eight, as explained earlier, the permanency of
the dismissal. That's not operate for double jeopardy to apply, but that the state is only presumed to
have abandoned or waive it tried to revive the case and prosecute the accused. So the reason why it
can no longer be revived or that it case no with similar offense cannot be charged against the accused,
again, is because of section

12:59
eight and not because of section three I in relation to sections have been a rule 117 on double
jeopardy, it is because of the time barred rule under section eight on provisional dismissal. And of
course subject to the exception, that if the prosecution actually has a justifiable reason for the delay in
reviving the case, then the court has the discretion to still revive the case, despite the lapse of the pier,
you know, set forth in section eight that could have made the provisional dismissal permanent. So
under the case of people vs. lakhs on 400 to 67308 to 309. The court discuss their knees or knowing
that the rule on provisional dismissal was put in place and there is a time bar not provided there in one
year and two year periods. So the inordinate delay in the revival or the filing of a criminal case may
impair or reduce the capacity of the state to prove its case with a dis disappearance or non availability
of its witnesses. physical evidence may have been lost memories of witnesses may have grown deem
or feed that passage of time makes proof of any fact more difficult. They accuse me become a fugitive
from justice or committed another crime The longer the lapse of time, from the dismissal of the case to
the revival there off, the more difficult it is to prove the crime. On the other side of the fulcrum, a mere
provisional dismissal of a criminal case that terminates a criminal case and the possibility that the case
may be revived at anytime, may disrupt or reduce, if not the real the chances of the accused for
employment, create the lease Association, subject him to public public key and create on site In him
and his family, he's an evil to lead in normal life. Because of community suspicion and his own anxiety.
He continues to suffer those penalties and disabilities incompatible with the presumption of innocence.
He may also lose his witnesses or other memories may fade with the passage of time. In the long run, it
may diminish his capacity to defend himself and vice Eskew the fairness of the entire criminal justice
system. Key so that ends our discussion of rule 117 On motion to quash

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