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RULE 110- PROSECUTION OF OFFENSE - Prescription period for the prosecution of the alleged
I. INSTITUTION OF CRIMINAL ACTIONS
Purpose of a criminal action; role of the private offended
party
- To determine the penal liability of the accused for
having outraged the state with his crime, and if he be
found guilty, to punish him for it
- Private offended party is regarded as mere witness
o Interest is limited to civil liability
How criminal actions are instituted
- Depends if preliminary action is required
a. When PI is required, file a complaint
b. When PI is not required:
a. File complaint or information directly with
the MTC and MCTC
b. File the complaint with the office of the
prosecutor
Institution of criminal actions in Manila and other
chartered cities
- Complaint shall be fled with the office of the
prosecutor
No direct filing in the RTC
- - RTC has jurisdiction over an offense punishable with
imprisonment exceeding 6 years, a period way above
the minimum penalty for an offense that requires a PI
Effect of the institution of the criminal action on the
prescriptive period
- Institution of the criminal action shall interrupt the
period of prescription of the offense charged unless
otherwise provided by special laws
- For offenses were PI is not required, he filing of the
information or complaint directly with the MTC or
MCTC or with the office of the prosecutor shall
interrupt the period of prescription
Rules on prescription for violations of municipal
ordinances and special laws; prevailing rules
1. Act No 3326
- Law governs the period of prescription for violations
penalized by special acts and municipal ordinances
Zaldavia v Reyes
- Offense punishable by a municipal ordinance
- Act No3326 says that prescription shall be suspended
“when proceedings are instituted agaist the guilty
person”
- The proceedings referred to are “judicial proceedings”
not administrative proceedings
- If there are conflict between Act No 3326 and Rule
110 of the ROC, the ROC will prevail
Sanrio Company Limited v Lim
- Violation of Intellectual Property Code
violation of the IPC was tolled by petitioner’s timely
filing of the complaint-affidavit before the TAPP
Panaguiton, Jr v DOJ
- Violation of BP 22
- Petitioner’s filing of his complaint-affidavit before the
Office of the City Prosecutor xxx effectively
interrupted the prescriptive period for the offenses
they had been charged under BP 22
SEC v Interport
- Confirms the rule that the filing of a complaint for
purposes of preliminary investigation interrupts the
period of prescription of criminal responsibility
- Sanrio, Panaguiton and SEC are violations of special
laws
o Filing of the affidavit of complaint for PI with
the proper office interrupted the running of
the prescriptive period
People v Pangilinan
- Ruling of Zaldavia v Reyes is not controlling in special
laws
- Institution of proceedings for PI against the accused
interrupts the period of prescription
- Even filing of the criminal complaints on the Office of
the Ombudsman effectively interrupts the running of
the prescriptive period
- Whether the offense charged is punishable by the RPC
or a special law, it is the filling of the complaint or
information in the office of the prosecutor for
purposes of preliminary investigation that interrupts
the period of prescription
Interruption of period of prescription even if the court is
without jurisdiction
- The running of the period of prescription is
interrupted with the filing of the action even if the
court in which the action was first filed is without
jurisdiction
People v Galano
- It was only when the trial court dismissed the case due
to lack of jurisdiction that “the proceedings therein
terminated without conviction and acquittal and it was
only the that the prescriptive period commenced to
run again”
People v Enrile
- Filing of the first charges should be considered as
having interrupted the prescriptive period
notwithstanding the lack of jurisdiction of the military
tribunal in which they were filed
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Reodica v CA
- The prescriptive period for the quasi-offenses in
question was interrupted by the filing of the
complaint with the fiscal’s office three days after the
vehicular mishap and remained tolled pending the
termination of the case
II. PROSECUTION OF THE CRIMINAL ACTION
Who must prosecute the criminal action; who controls the
prosecution
- Under the direction and control of the public
prosecutor
o Even if there is a private prosecutor, the
criminal action is still prosecuted under the
direction and control of the public
prosecutor
Consequences of the rule that a criminal action is
prosecuted under the direction and control of the public
prosecutor
- Public prosecutor has the power and discretion:
a. Determine whether prima facie case exists
b. Decide which of the conflicting testimonies
should be believed free from the interference
and control of the offended party
c. Subject only to the right against self-
incrimination, determine which witness to
present in court
- Public prosecutor may turn over the actual
prosecution of the criminal case to the private
prosecutor, but may take over at any time
Pinote v Ayco
- Trial judge allowed the defense to present evidence
consisting of the testimony of 2 witnesses, even if the
absence of the prosecutor charged with prosecuting
the case
- The prosecutor was undergoing medical treatment
- The Court ruled that a violation of the criminal cases is
an affront to the People of the Philippines as a whole
and not merely to the person directly prejudiced, he
being a merely complaining witness
o Presence of a public prosecutor in the trial is
necessary to protect vital interests of the
state
Prosecution of a criminal action in the MTC or MCTC
- Prosecuted under the direction and control of the
persecutor
- When not available, the action may be prosecuted by:
a. Offended party
b. Any peace officer
c. Public officer charged with the enforcement of the law
violated
Representation of the People of the Philippines by the OSG
in appeals before the CA or the SC
- The OSG may bring an appeal on the criminal aspect
representing the people
o Appeal of the criminal case not filed by the
people as represented by the OSG is perforce
dismissible
o Private complainant or offended party may
appeal only the in the civil liability
o Litmus test: whether or not the petition refers
to the civil aspect of the case
- Solicitor General is regarded as the appellate counsel
o Should be given opportunity to be heard
o Conformity of the Assistant Prosecutor to a
petition for review before the CA is
insufficient as the rule mandate that it should
be filed by the Solicitor General
Exception to the rules that the Solicitor General represents
the People in the CA or SC
- All cases elevated to the Sandiganbayan and from the
Sandiganbayan to the SC, the Office of teh
Ombudsman through its special prosecutor, shall
represent the People of the Philippines
Prosecution for violation of special laws
- The same shall be prosecuted
- Exigencies of public service sometimes require the
designation of special prosecutors from different
government agencies to assist the public prosecutor
o Does not detract the public prosecutor
When a private prosecutor may prosecute a case even in
the absence of the public prosecutor
- Authorized to do so in writing given by either Chief of
the Prosecution Office or the Regional State
Prosecutor that shall be approved by the court
- Shall be given either:
a. Public prosecutor has a heavy work schedule
b. Lack of public prosecutor
Extent of the authority given to the private prosecutor
when duly authorized to prosecute the action
- Shall continue to prosecute the case up to the end of
the trial eve in the absence of a public prosecutor
o Unless revoked or withdrawn
III. INTERVENTION OF THE OFFENSED PARTY IN
THE PROSECUTION OF CRIMINAL ACTION
Intervention of the offended party
- Every person criminally liable for a felony is also civilly
liable
- When a person commits a crime, he offends 2 entities:
a. State
b. Individual member of the society
- Civil liability includes:
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a. Restitution
b. Reparation of the damages caused
c. Indemnification for consequential damages
- The existence of civil liability involved in a crime that
the offended party is allowed to intervene in the
prosecution of the offense
- The appointment of the private prosecutor is done by
the offended party and is the mode by which he
intervenes in the prosecution of the offense
o Intervention is only allowed where the civil
action for the recovery of the civil liability
arising from the offense charged is instituted
in the criminal action
o The offended party may not intervene in the
prosecution of the offense through a private
prosecutor if:
a. Waives the civil action
b. Reserves the right to institute it separately
c. Institutes the civil action prior to the criminal action
Effect of the filing of an independent civil action on the
right of the offended party to intervene in the prosecution
of the offense
- Institution of an independent civil action does not
deprive the offended party of the right to intervene in
the civil action
o Crimes that give rise to distinct civil liabilities
(physical injuries, fraud, defamation, quasi-
delict)
- May proceed independently of the criminal
proceedings ad regardless of the result of the latter
IV. PROSECUTION OF PRIVATE CRIMES
Prosecution of adultery and concubinage
- Shall not be prosecuted except upon a complaint filed
by the offended spouse
- Example
o WW, the wife, commits adultery with married
man MM, the wife of MM cannot prosecute
WW for adultery because she is not the
offended spouse. The complaint should be
filed by HH, the husband of WW
o The action cannot be instituted against one
party alone
o It must be instituted against both guilty
parties, unless one of them is no longer alive
People v Ilarde
- Wife of the complainant and her alleged paramour
were caught in the actual sexual act in the conjugal
bedroom
- Aggrieved husband executed a complaint affidavit
filed with the police ad fiscal’s office
- Complainant died
- The facts shoed the desire of the offended party to
bring his wife and her alleged paramour to justice
- When he filed his complaint affidavit—strong and
unequivocal statement
- May not be instituted if it shown that the offended
party has consented to the offense or has pardoned
the offense
Prosecution of seduction, abduction and acts of
lasciviousness
- Be prosecuted upon a complaint filed by the offended
party or her parents, grandparent, or guardian, if the
offender has expressly pardoned by any of them
o Pardon must be expressly made
- If the offended party becomes incapacitated before
she can file and no known parent, grandparent, or
guardian
o The state shall initiate
- the offended party even if a minor has the right to
initiate the prosecution of the offense, independently
of her parents, grandparents, or guardian except if she
is incompetent or incapable
Prosecution of defamation
- imputation of the offenses of adultery, concubinage,
seduction, abduction, and acts of lasciviousness
- upon the complaint filed by the offended party
Prosecution of rape
- commenced in court even by the filing of an
information by the public prosecutor
V. COMPLAINT AND INFORMATION
Complaint
- is a sworn written statement charging a person with
an offense
- subscribed by:
1. offended party
2. any peace officer
3. other public officer
- it must be “sworn” and “written”
In whose name and against whom a complaint filed
- it is filed in the name of the People of the
Philippines and against all persons who appear to be
responsible for the offense involved
- the interest of the private complainant or the private
offended party is limited to the civil liability
- the complainant’s role is limited to that of a witness
for the prosecution
- the appeal of criminal case may only be undertaken
by the state through the solicitor general
- the offended party may appeal the civil aspect of the
case
Information
- accusation in writing charging a person with an
offense subscribed by the prosecutor and filed with
the court
- it not required to be sworn
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- only a public officer described in the ROC “as a
prosecutor” is authorized to subscribe to the
information
- it is filed in the name of the People of the Philippines
against all persons who appear to be responsible for
the offense involved
- allegation in the information are crucial to the success
or failure of a criminal prosecution
- it is considered the battle ground in criminal
prosecution
Complaint Information
sworn written statement In writing
Subscribed by: Subscribed by the
1. offended party prosecutor
2. any public
officer
3. other public
officer
Infirmity of signature in the information
- if the original information was signed and filed by one
who had no authority to sign and file the same
- the dismissal of the information would not be a bar to
a subsequent prosecution under a subsequent valid
information
- an infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by
silence, acquiescence, or even by express consent
- such lack of authority on the part of the officer is a
ground for the quashal of the information
Sufficiency of the complaint of information
1. A complaint or information is deemed sufficient if it
contains:
a. Name of the accused
b. Designation of the offense
c. Acts or omissions
d. Name of the offended party
e. Approximate date of the commission of the
offense
f. Place where the offense was committed
Test for sufficiency of the complaint or information
- Whether the crime described in intelligible terms with
such particularity as to apprise the accused, with
reasonable certainty, of the offense charged to enable
the accused to suitably prepare for his defense
- Since it is presumed to have o independent
knowledge of the facts that constitute the offense
- For an information to be sufficient, it must validly
charge the offense
- Whether the material facts alleged in the complaint or
information shall establish the essential elements of
the offense charged
- It is fatally defective when it is clear that it does not
really charge an offense or when an essential element
of the crime has both been sufficiently alleged.
Questioning the insufficiency of the complaint or
information
- Objection relating to the form of the complaint or
information cannot be made for the frst time on
appeal
- The accused-appellant should move before
arraignment either for a bill of particulars or move for
the quashal of the information
- If he fails, he is deemed to have waived his objections
to any formal defect in the information
- If you failed to raise the issue of the defective
information before the trial court, it amounted to a
waiver of the defect in the information
- While the sufficiency of an information may be
assailed, teh right to question the sufficiency of the
same is not absolute
- An accused is deemed to have waived this right if he
fails to object upon his arraignment or during the tiral
- The evidence presented during the trial can cure the
defect in the information
- He also waived his right when he voluntarily entered a
plea when arraigned and participated in the trial
- If the objection is based on the lack of jurisdiction
over the subject matter, the same may be raised or
considered motu proprio by the court at any stage of
the proceeding or appeal
How the nature of the offense is determined
- It is determined by the actual recital of the facts in the
complaint or information
- Not by the caption of the information or the citation
of the law allegedly violated
- Every element of the offense must be stated
- Even if the designation of the crime in the information
is defective, what is controlling is the allegation of the
facts in the information that comprises a crime and
adequately describes the nature and cause of the
accusation against the accused
Date of the commission of the offense
- precise date of the offense is not necessary to state in
the complaint or information
- Except when the date of commission is a material
element of the offense
- The accused was charged with unlawfully allowing a
paymaster to obtain cash advances through a series of
acts, the precise date is not a material element
- In qualified theft, it was allegedly transpired on Dec
29, 1995. It actually happened on January 2, 1996. It
was stated, “on or about the 2 nd of January 1996”. In
qualified theft, it could be alleged to be committed o
a date as near as possible to the actual date of its
commission
- When the date give is not of the essence of the
offense, it need not be proven as alleged
- In rape, the failure to specify date does not ipso facto
make the information defective
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- Time or date or rape is not a material ingredient of
the crime because the gravamen of rape is carnal
knowledge of a woman
- “in the first week”—allowed
- “sometime in the month of October of 1001”—
allowed
- “on or about the year of 1992”—not allowed
How to state the name of the accused
a. Name and surname , or appellation or
nickname
b. If his name cannot be ascertained, he must
be described under a fictitious name
c. If, later, his true name is disclosed by him or
becomes known, his true name shall be
inserted
- The first duty of the prosecution is not to prove the
crime but to prove the identity of the criminal
- There can be no conviction without proof of identity
of the criminal beyond reasonable doubt
- The task of the prosecution is always two-fold:
a. To prove beyond reasonable doubt the commission of
the crime charged
b. To establish with the same quantum of proof the
identity of the person or persons responsible,
because, even if the commission of the crime is a
given, there can be no conviction without the identity
of the malefactor being clearly ascertained
- Positive identification pertains essentially to proof of
identity.
- The witness called him Pablito but his true name is
Pablo, it does not affect his positive identification
- What matters is his identification as the person who
committed the crime, not the name under which he
was arrested or charged
- The identity of the accused, must, be proven
- “it might be him”—uncertain
- The identification of a malefactor doe snot always
require direct evidence from an eyewitness
- Two types of positive identification
a. A witness may identify a suspect or accused in a
criminal case as the perpetrator of the crime as an
eyewitness to the very act of the commission of the
crime—direct evidence
b. Although the witness may not have actually seen the
very act of commission of the crime, he still may be
able to positively identify a suspect or accused as the
perpetrator of a crime – for instance the perpetrator is
the person last seen with the victim immediately
before and right after the commission of the crime
How to state the name of the offended party who is a
natural person
- The offended party is the person against whom or
against whose property the offense was committed
- State the name and the surname of the offended
party, or any appellation or nickname
- Fictitious name
- If disclosed, change the name in the records
How to state the name of the offended party which is a
juridical person
- State the name, or any name or designation by which
it is known or which it may be identified, without need
of averring that it is a juridical person or that it is
organized in accordance with law
Rule if the name of the offended party is unknown in
offenses against property
a. In offenses against property, if the name of the
offended party is unkown, the property must be
described with such particularity as to properly
identify the offese charged
b. In case of offenses against property, the
designation od the 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
c. The offenses against property, if the subject
matter of the offense is generic and not
identifiable, the error of designation of the
offended party is fatal and would result in the
acquittal of the accused
Designation of the offense
a. The designation of the offense requires that the name
given to the offense by statute shall be stated
If the statute gives no designation to the offense, the
reference shall be made to the section or subsection
punishing it
b. To be included in the complete designation of the
offense is an averment of the acts or omissions
constituting the offense
c. It shall specify the qualifying and aggravating
circumstance of the offense
- The specific acts of the accused do not have to be
described in detail in the information, as it is enough
that the offense be described with sufficient
particularity to make sure that the accused fully
understand what he is being charged wth
- Particularity—must be such that a peron of ordinary
intelligence immediately knows what the charge is
- The prosecutor is not even required to be absolutely
in designating the offense by its formal name in the
law
Effect of failure to designate the offense given by the
statue or failure to mention the provision
- The failure to designate the offense does not vitiate
the information if the alleged facts clearly recite the
facts constituting the crime charged
- The actual facts recited and circumstance in the
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information is the controlling
- There is no rule which specifically requires that the
information must state the particular law
Statement of the qualifying and aggravating circumstances
- Every information must allege the qualifying and
aggravating circumstances attending the commission
of the crime
o Took effect on Dec 1, 2000, applied
retroactively to pending cases if it is
favourable to the accused
- It is not sufficient to merely state that the offense was
committed with treachery without alleging the facts
that gave rise to treachery
- For it to be considered in imposing the penalty, it
should be specified
o The prosecution is precluded form
establishing any act or circumstance not
specifically alleged in the information
- “wearing mask and/or other forms of disguise” is a
form of aggravating circumstance, it allows that the
accused to remain anonymous and unidentifiable as
he carries out his crime
- With the promulgation of the Revised Rules, the
courts could no longer consider the aggravating
circumstances not alleged ad proven in the
determination of the penalty and in the award of
damages
- The qualifying circumstance need not be preceded by
descriptive words, “qualifying” or “qualified by” to
properly qualify an offense, but the specific allegation
of an attendant circumstance which adds the essential
element raising the crime to a higher category
- A special qualifying circumstance (minority and
relationship), must be specifically pleaded or alleged
with certainty in the information
- Uncle is not enough, it should be mentioned that he is
a relative within the third civil degree, either by affinity
or consanguinity
- To protect the accused from double jeopardy
Cause of accusation
- Acts or omission complained of must be alleged.
o It must allege clearly and accurately
o Facts and circumstance are necessary to be
included
o Enable the accused, if found guilty, to plead
his conviction in a subsequent prosecution
for the same offense
- It is sufficient to use ordinary and concise language
for common understanding
o Offense being charged
o Acts or omissions
o Qualifying and aggravating circumstance
- The circumstance of the accused being a member of
the PNP was not alleged in the information, therefore
cannot be appreciated even if subsequently proven
during the trial that the accused is a police officer
- Even though the minority of the victim as alleged and
established, it was not properly alleged the
relationship of the accused, therefore, it cannot be
considered as a special qualifying circumstance
Duplicity of the offense
- That there is a joinder of distinct offenses in one
complaint or information
o The complaint or information must charge
only one offense
o It prohibits duplicity of offenses in a single
complaint or information
o More than one offense may be charged
under one complaint or information when
the law prescribes a single punishment for
various offenses
o An information which charges a person for
violating separate and distinct provisions of a
single law, with distinct penalties for each
violation and committed through the
performance of separate act, is defective
because of duplicity
- It is transgressed when in one information the
accused s charged with multiple murder, multiple
frustrated murder and multiple attempted murder
- When a single act violates two or more entirely
distinct and unrelated provisions, the prosecution of
the accused for more than one offense in separate
informations is justified
- On a particular date and “prior thereto”, “several
times” is duplicitous
Purpose of the rule against duplicity
- To give the accused the necessary knowledge of the
charge against him and enable him to sufficiently
prepare for defense
Exception to the rule of duplicity
a. When the law prescribes that a single punishment
for various offenses as in complex and compound
crimes
a. Imposes single penalty when a single act
constitutes two or more grave or less grave
felonies
b. When the offense is necessary to commit the
other
b. When the law imposes a single penalty in the case of
a special complex crime
a. Art 266-B of RPC, when by reason or on the
occasion of rape, homicide is committed, the
law imposes death, a single
b. The information for rape with homicide is not
duplicity
c. In Art 267 of RPC, a single penalty of death
shall be imposed when as a consequence of
kidnapping or serious illegal detention, the
victim is killed or dies or is raped
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d. In Art 294 of the RPC, robbery with homicide,
robbery with rape or intentional mutilation or
arson
e. Art 320 of RPC, destructive arson and death
results
c. When a single act of throwing a grenade results into
killing of one and injuring others
a. The accused may be charged in a single
information
b. Single shot, killed one, and seriously injured
the other is a complex crime
d. Malversation of public funds through falsification of
public documents may be contained under single
information under Art 48
e. Falsification of residence certificate to commit
malversation is a complex crime
f. “manifest partiality”, “evident bad faith”, “gross
inexcusable negligence”
g. Each incident of sexual intercourse and lascivious act
with a child under RA 7610 is a separate and distinct
offense, each of which is a subject of a separate
information
a. Each conduct of rape or lascivious conduct
should be the subject of separate
information
h. The act of approving the application for legalization of
the stay of 32 aliens despite their allegedly being
disqualified is but a single offense to be charged
under one information only
a. The alleged offense is a series of acts
committed on the same period and impelled
by single itet or resolutions known as
“continued crime” or “continuing crime”
i. When several people are killed by separate bullets
from a single automatic weapon, art 48 is not
applicable the death of each of the persons
who were killed were not caused by the
performance by the accused of one simple act
a. Although the burst of shots was caused by
one single act of pressing the trigger of the
automatic weapon, the person firing it has
only to keep pressing the trigger with his
finger and it would fire continually, hence,
not a single act
b. If single bullet killed two persons, there is
complex crime
c. Committed four separate crimes of murder
and 2 crimes of attempted murder, it cannot
be the subject of a single information
j. When the appellant decided to commit those
separate and distinct acts of sexual assault, he was not
motivated by a single impulse, but rather by several
criminal intents
k. In murder or homicide by using an illegal firearm, a
separate information for illegal possession cannot be
filed
a. It shall be an aggravating circumstance
b. If the violation is of rebellion or insurrection,
sedition, or attempted coup de etat, it shall
absorb as an element
l. If a person was arrested for .45 caliber pistol and a .32
caliber pistol, each firearm should be the subject of a
separate information because the law provides
separate penalty for each type of firearm
Continued crime—duplicity of the crime, how many charges
can you file, one or more information, single intent but several
acts, eg roster
Continuing crime/Transitory crime- one crime but committed
in different places, relate it to venue
Use of illegally possessed firearm under the new firearms
law
- RA 10591
o Sec 29
o The use of a loose firearm, when inherent in
the commission of the crime punishable
under the RPC of other special laws, shall be
considered as an aggravating circumstance
Waiver of duplicity of the offense
- it is ground for a motion to quash
o the objection must be time interposed by the
accused before trial
o otherwise, he is deemed to have waived the
said defect
o the state should not heap upon the accused
two or more charges which might confuse
him in his defense
- when 2 or more offenses are charged in a single
complaint or information, the accused must object to
the duplicity before the trial
o if he does not, the court may convict him of
as many offenses as are charged and proved,
and impose on him the penalty of each
offense
- there should be no problem in convicting an accused
of 2 or more crimes errounously charged in one
information or complaint
- 3 counts of rape in one information, however, there
wwas no objection made
Venue of Criminal Actions
- Shall be instituted and tried in the court f the
municipality:
a. Where the offense was committed
b. Where ay of its essential ingredients
occurred
Venue: an element of criminal jurisdiction
- The court cannot exercise jurisdiction over a person
charged with an offense committed outside oits
limited territory
- The state the place where the offense was committed
- Ensure the that the defendant is not compelled to
move to, and appear in, a different court from that of
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the province where the crime was committed
- Why?
o The jurisdiction of trial courts is limited to
well-defined territories such that a trial court
is limited to well-defined territories such that
a trial court can only hear and try cases in
crimes committed wthin its territorial
jurisdiction
o Laying the venue in the locus criminis is
grounded on the necessity and justice of
having an accused on trial in the municipality
or province where witness and other facilities
for his defense are available
- Finding an improper venue in criminal cases carries
jurisdictional consequences
- It is not enough to allege in the complaint or
information the place of the commission of the crime,
such crime must also be proven during the trial
Improper venue in a civil case
- The fround for motion to dismiss would be that the
venu is improperly laid
- In criminal cases, the motion to quash would that the
court trying the case has no jurisidiction over the
offense charged
When the court has jurisdiction to try offenses not
committed within its territorial jurisdiction
Venue of selected offenses
- Perjury?
o Committed in Makati
o Certification against forum shopping was
attached to civil complaints used and filed in
Pasay
o Makati is the proper venue of the perjury
case
- Sy Tiong
o Perjured statements were made in a GIS
which was subscribed and sworn to in Manila
- In Union Bank of the Philippines
o The crime of perjury, committed through the
making of a false affidavit, under Art 183, is
committed at the time the affiant subscribes
and swears to his or her affidavit
o When the crime is committed through false
testimony under oath in a proceeding
which is neither criminal nor civil, venue is at
the place where the testimony under oath is
given
o A written sworn statement is submitted,
venue may either be at the place where the
sworn statement is submitted or where the
oath was taken as the taking of the oath and
the submission are both material ingredients
of the crime committed
o The determination of venue shall be based
on the acts alleged in the Information to be
constitutive of the crime
- Under Sec 9 of RA 8042 (Migrant workers and
Oversees Filipino Act of 1995)
o Shall be filed not only in the RTC of the
province or city where the offense was
committed
o May also be filed where the offended party
actually resides at the time of the
commission of the commission of the crime
- BP 22
o Can be filed in any of the places where any
of the elements of the offense occurred,
where the check is
a. drawn ,
b. issued,
c. delivered, or
d. dishonoured
- Estafa by postdating r issuing a bad check
o Basic elements of decit and damage may
arise independently in separate places
o May be filed either
- Transitory or continuing crimes
- Theft
- Automobile was stolen in Manila, the fact that sad
automobile was later found in Rizal is not essential
ingredient of the crime
How to state the place of the commission of the offense
- Offense was committed or some of its essential
elements occurred at some place within the
jurisdiction of the court
- If essential to the offense, it is implied from the rule
that the description of the place of commission
AMENDMENT OR SUBSTITUTION OF THE COMPLAINT OR
INFORMTION
Amendment
- Is the correction of an error or an omission in a
complaint or an information
- It is effected in Sec 1, Rule 10 of ROC by adding or
striking out an allegation or the name of the party, or
by correcting a mistaken or inadequate allegation or
description in any other respect, so that the actual
merits of the controversy may speedily be determined,
without regard to technicalities, and in the most and
expeditious and inexpensive manner
Amendment of the information or complaint before plea;
no need for leave
- If amendment is made before the accused enters his
plea, the complaint or information may be amended
in form or in substance, without the need for leave of
court
- If he has not yet been arraigned, the RTC was correct
in directing the amendment of the information
9|RIANO-JP
When leave of court is required even if the amendment
made before plea
- Leave of court is made before the plea
o Amendment downgrades the nature of the
offense charged
o Amendment excludes any accused from the
complaint or information
- The above amendments require a motion by the
prosecutor, with notice to the offended party
- The court is mandated by the Rules to state its
reasons in resolving the motion of the prosecutor
and to furnish all parties, especially the offended
party, of copies of its order
Rules as to amendment made after the plea of the accused
- Made after the accused enters his plea and during the
trial, any formal amendment may only be made
under two conditions
o Leave of court must be secured
o The amendment does not cause prejudice to
the rights of the accused
o The rule makes reference only to a formal
amendment after the plea, the rule indicates
that an amendment in substance is not
allowed at this stage
- Before the accused enters his plea, a formal or
substantial amendment of the complaint or
information may be made without leave of court
o After the entry of plea, only a formal
amendment may be but with leave of court
and if it does not prejudice the rights of the
accused
o After arraignment, a substantial amendment
is proscribed except if the same is beneficial
to the accused
When amendment is formal or substantial
- An amendment in the information, which does not
change the nature of the crime alleged, does not
affect the essence of the offense, 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
- Test when the rights of an accused are prejudiced by
the amendment of a complaint or information is,
o When a defense of the accused, under the
original complaint or information, would no
longer be available after the amendment is
made
o And whe the evidence the accused might
have would be inapplicable to the complaint
or information, as amended
o In the change of date of the commission, if
the disparity is not gret, is more formal than
substantial
- Formal amendments
o New allegations which relate only to he
penalty hat the court might impose in the
event of conviction
o An amendment which does not change
another offense different or distinct from
that charged in the original one
o Additional allegations which do not alter the
prosecution’s theory of the case so as to
cause surprise to the accused and affect the
form of defense he has or will assume
o Does not affect any substantial rights of the
accused
o Merely adds specification to eliminate
vagueness in the information and not to
introduce new and material facts, and merely
states with additional precision something
which is already contained in the original
information and which adds nothing
essential for conviction for the crime charged
- In Pacoy v Judge Afable Cajigal
o Upon arraignment, the accused, pleaded not
guilty to the charge of homicide
o After the arraignment, the respondent judge
issued another order directing the trial
prosecutor to correct and amend the
information to murder in view of the
aggravating circumstance
o The prosecutor entered his amendment by
crossing out the word “homicide” and
instead wrote the word “murder”
o On the re-arraignment of the accused for the
crime of murder, the counsel of the
petitioner objected on the ground that the
latter would be placed in double jeopardy
o The SC issued whether or not the
amendment from homicide to murder is a
substantial one
o The court ruled that the charge of the
offense from homicide to murder is merely a
formal amendment and not a substantial
amendment or a substitution
o There was no change in the recital of facts
the court found the amendment made in the
caption and preamble from homicide to
murder as purely formal
- In a case involving qualified theft of a motor vehicle
the prosecution sought to add habitual delinquency
and recidivism
o The court observed that the amendment
desired related only to the range of the
penalty that the court might impose in the
event of conviction
- The prosecution sought during trial to amend the
information from frustrated to consummated murder
o Formal amendment
- After the accused was arraigned, to include in the
allegation that by reason or on occasion of the rape,
the victim became insane, is not a substantial
10 | R I A N O - J P

amendment Amendment Substitution

o It merely changed the penalty May be made before or after May be made before or after
- Illegal recruitment to Illegal recruitment in large scale the defendant pleads the defendant pleads
- In violation of RA 8424 or the Tax Reform Act of 1997, May involve either formal or Substantial change
for non-filing of income tax returns for a particular substantial
taxable year, Before plea, can be effected Must be with leave of court
o After the petitioner was arraigned and without the leave of court
pleaded not guilty Only as to form, there is no Another PI is entailed and the
o The prosecution filed a motion for leave to need of PI accused had to plead anew to
amend the information changing locations of the new information
the business of the petitioner Same offense charged in the Requires or presupposes new
o Amendments do not charge another offense original information information involves a
different from that charged in the original different offense
one
o Or do not alter the prosecution’s theory of
the case so as to cause surprise to the
accused and affect the form of defense he
has or will assume are considered merely as
formal amendment
- The insertion of the real name of the accused is
merely a forma amendment
- The inclusion of an additional accused with the
allegation that the additional accused acted in
conspiracy with the original accused, is only an
amendment in form
- The additional allegation of conspiracy is only a
formal amendment where the participation of the
accused as a principal is not affected by the
amendment

Examples of substantial amendments in old case

- Charged of homicide, pleaded not guilty
o The prosecution amended to murder
qualified bu treachery and evident
premeditation
- Accused was arraigned for robbery
o Prosecution sought to amend from robbery
to robbery in an uninhabited place
- Arraigned, then allege the relationship of the accused
to the victim

Substitution of the complaint or information

- May be substituted if it appears at any time before
judgment that a mistake has been made in charging
the proper offense
o The court shall dismiss the original complaint
or information once the new one charging
the proper offense is filed provided the
accused will not be placed in double
jeopardy
- Sec 14, Rule 110
o If it appears at any time before judgment
that a mistake has been made in charging
the proper offense, the court shall dismiss
the original complaint or information

Distinction between substitution and amendment

11 | R I A N O - J P
RULE 110- Prosecution of Offenses
Section 1. Institution of criminal actions. — Criminal actions
shall be instituted as follows:
(a) For offenses where a preliminary investigation is
required pursuant to section 1 of Rule 112, by filing
the complaint with the proper officer for the purpose
of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or
information directly with the Municipal Trial Courts
and Municipal Circuit Trial Courts, or the complaint
with the office of the prosecutor. In Manila and other
chartered cities, the complaint shall be filed with the
office of the prosecutor unless otherwise provided in
their charters.
The institution of the criminal action shall interrupt the running
period of prescription of the offense charged unless otherwise
provided in special laws. (1a)
Section 2. The Complaint or information. — The complaint or
information shall be in writing, in the name of the People of the
Philippines and against all persons who appear to be
responsible for the offense involved. (2a)
Section 3. Complaint defined. — A complaint is a sworn written
statement charging a person with an offense, subscribed by the
offended party, any peace officer, or other public officer
charged with the enforcement of the law violated. (3)
Section 4. Information defined. — An information is an
accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court. (4a)
Section 5. Who must prosecute criminal actions. — All criminal
actions commenced by a complaint or information shall be
prosecuted under the direction and control of the prosecutor.
However, in Municipal Trial Courts or Municipal Circuit Trial
Courts when the prosecutor assigned thereto or to the case is
not available, the offended party, any peace officer, or public
officer charged with the enforcement of the law violated may
prosecute the case. This authority cease upon actual
intervention of the prosecutor or upon elevation of the case to
the Regional Trial Court.       (This Section was repealed by  A.M. No. 02-2-07-SC  effective
May 1, 2002)
The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both alive,
nor, in any case, if the offended party has consented to the
offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness
shall not be prosecuted except upon a complaint filed by the
offended party or her parents, grandparents or guardian, nor,
in any case, if the offender has been expressly pardoned by any
of them. If the offended party dies or becomes incapacitated
before she can file the complaint, and she has no known
parents, grandparents or guardian, the State shall initiate the
criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the
prosecution of the offenses of seduction, abduction and acts of
lasciviousness independently of her parents, grandparents, or
guardian, unless she is incompetent or incapable of doing so.
Where the offended party, who is a minor, fails to file the
complaint, her parents, grandparents, or guardian may file the
same. The right to file the action granted to parents,
grandparents or guardian shall be exclusive of all other persons
and shall be exercised successively in the order herein
provided, except as stated in the preceding paragraph.
No criminal action for defamation which consists in the
imputation of the offenses mentioned above shall be brought
except at the instance of and upon complaint filed by the
offended party. (5a)
The prosecution for violation of special laws shall be governed
by the provisions thereof. (n)
Section 6. Sufficiency of complaint or information. — A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate date
of the commission of the offense; and the place where the
offense was committed.
When an offense is committed by more than one person, all of
them shall be included in the complaint or information. (6a)
Section 7. Name of the accused. — The complaint or
information must state the name and surname of the accused
or any appellation or nickname by which he has been or is
known. If his name cannot be ascertained, he must be
described under a fictitious name with a statement that his true
name is unknown.
If the true name of the accused is thereafter disclosed by him
or appears in some other manner to the court, such true name
shall be inserted in the complaint or information and record.
(7a)
12 | R I A N O - J P
Section 8. Designation of the offense. — The complaint or
information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense,
and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it. (8a)
Section 9. Cause of the accusation. — The acts or omissions
complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged
as well as its qualifying and aggravating circumstances and for
the court to pronounce judgment. (9a)
Section 10. Place of commission of the offense. — The
complaint or information is sufficient if it can be understood
from its allegations that the offense was committed or some of
the essential ingredients occurred at some place within the
jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense or is
necessary for its identification. (10a)
Section 11. Date of commission of the offense. — It is not
necessary to state in the complaint or information the precise
date the offense was committed except when it is a material
ingredient of the offense. The offense may be alleged to have
been committed on a date as near as possible to the actual
date of its commission. (11a)
Section 12. Name of the offended party. — The complaint or
information must state the name and surname of the person
against whom or against whose property the offense was
committed, or any appellation or nickname by which such
person has been or is known. If there is no better way of
identifying him, he must be described under a fictitious name.
(a) In offenses against property, if the name of the
offended party is unknown, the property must be
described with such particularity as to properly
identify the offense charged.
(b) If the true name of the of the person against
whom or against whose properly the offense was
committed is thereafter disclosed or ascertained, the
court must cause the true name to be inserted in the
complaint or information and the record.
(c) If the offended party is a juridical person, it is
sufficient to state its name, or any name or
designation by which it is known or by which it may
be identified, without need of averring that it is a
juridical person or that it is organized in accordance
with law. (12a)
Section 13. Duplicity of the offense. — A complaint or
information must charge but one offense, except when the law
prescribes a single punishment for various offenses. (13a)
Section 14. Amendment or substitution. — A complaint or
information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his plea.
After the plea and during the trial, a formal amendment may
only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.
However, any 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 court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties,
especially the offended party. (n)
If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of
a new one charging the proper offense in accordance with
section 19, Rule 119, provided the accused shall not be placed
in double jeopardy. The court may require the witnesses to give
bail for their appearance at the trial. (14a)
Section 15. Place where action is to be instituted. —
(a) Subject to existing laws, the criminal action shall be
instituted and tried in the court of the municipality or
territory where the offense was committed or where
any of its essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft,
or other public or private vehicle while in the course
of its trip, the criminal action shall be instituted and
tried in the court of any municipality or territory where
such train, aircraft or other vehicle passed during such
its trip, including the place of its departure and arrival.
(c) Where an offense is committed on board a vessel
in the course of its voyage, the criminal action shall be
instituted and tried in the court of the first port of
entry or of any municipality or territory where the
vessel passed during such voyage, subject to the
generally accepted principles of international law.
(d) Crimes committed outside the Philippines but
punishable under Article 2 of the Revised Penal Code
shall be cognizable by the court where the criminal
action is first filed. (15a)
Section 16. Intervention of the offended party in criminal action.
— Where the civil action for recovery of civil liability is
instituted in the criminal action pursuant to Rule 111, the
13 | R I A N O - J P
offended party may intervene by counsel in the prosecution of
the offense. (16a)
RULE 111- PROSECUTION OF CIVIL ACTION
Implied institution of the civil action with the criminal
action
- When a criminal action is instituted, the civil action for
the recovery of the civil liability arising from the
offense charged shall be deemed instituted with the
criminal action
o Principle that every person criminally liable is
also civilly liable
- Criminal case has two aspects
o Civil and criminal
o He offends two entities
 The society in which he lives in or
the political entity called the State,
whose law he has violated
 The individual member of that
society whose person, right, honor,
chastity, or property was actually or
directly injured or damaged the
same punishable act or omission
o The civil action is deemed instituted with the
criminal action unless the offended party
waives the civil action, reserves the right to
institute it separately or institutes the civil
action prior to the criminal action
o When the accused is acquitted or when the
case against him is dismissed from failure of
the prosecution to prove his guilt beyond
reasonable doubt, the civil action is not
automatically extinguished since the liability
of the accused can be determined by mere
preponderance of evidence
- The rule on implied institution of the civil action does
not apply before the filing of the criminal action or
information
Purpose of the criminal and civil actions
- To punish in order to deter him and others from
committing the same or similar offenses, to isolate
him from society, reform and rehabilitate him or, in
general, to maintain social order
- The sole purpose of the civil action
o Resolution, reparation, or indemnification
Preponderance of evidence
- Plaintiff meets the burden of proof
- Phy testimonial evidence that the proposition is more
likely to be true than not be true
Beyond reasonable doubt
- Does not require absolute certainty only moral
certainty
- Moral certainty—the judge is not bothered by
convicting the accused to prison
Intervention of the offended party
- He may intervene by counsel in the prosecution of the
offense where the civil action for the recovery of the
civil liability is instituted in the criminal action
- There are instances when no civil action damage
results from an offense
o Espionage violation of neutrality, flight to an
enemy country, and crime against popular
representation
- Injurious to the respondent’s personal credibility and
reputation insofar as his faithful performance of the
duties and responsibilities as corporate treasurer”
o A civil action deemed instituted with the
criminal action that would justify the
appearance of a private prosecutor
Judgment of conviction includes a judgment on the civil
liability
- State the civil liability or damages caused by the
wrongful act or omission to be revored from the
accused by the offended party, if there is any and if
the filing of the civil action has not been resevredm
previously instituted or waived
The real parties in interest in the civil aspect of the case
- Offended party and the accused
- Either may appeal despite the acquittal of the accused
- The public prosecutor generally has no interest in
appealing the civil aspect of a decision acquitting the
accused
Rule Applicable
- The Rules of Criminal Procedure
When a civil action may proceed independently;
independent civil actions and quasi-delicts
- Two separate civil liabilities
o Civil liability ex delicto
o Independent civil liability
- Civil action referred to Art 32, 33, 34 and 2176 shall
remain separate, distinct, and independent
o Driver, common carrier, by his negligent act,
causes serious injuries to a pedestrian, the
former is not only civilly liable but also liable
under a quasi-delict or culpa aquiliana
o Pursuant to Art 2176
- Quasi-delict “is entirely separate and distinct from the
civil liability arising from negligence under the RPC
- What the law proscribes is double recovery
o Art 2177 “the plaintiff cannot recover
damages twice for the same act or omission
of the defendant
- If based on defamation, fraud, or physical injuries give
14 | R I A N O - J P
rise to an independent civil action arising not from the
crime charged but from Art 33 even if caused by the
very same defamatory or fraudulent act
o Estafa—proceed independently of the
criminal action
o Illegal arrest or detained illegally—may
initiate independent civil action for damages
(Art 32)
Consequences of the independent character of action
under Art 32, 33, 34 and 2176 of the Civil Action
- The right to bring the civil action shall proceed
independently of the criminal action
- The quantum of evidence required is preponderance
of evidence
- The right to bring the foregoing actions based on the
CC need not to be reserved in the criminal action
since they are not deemed included
o The institution or waiver of the right to file a
separate civil action arising from the crime
charged does not extinguish the right to
bring an independent civil action
o Civil action is filed independently, the ex
delicto civil liability in the criminal
prosecution remains, and the offended party
may subject to the control of the prosecutor
—still intervene in the criminal action, in
order to protect the remaining civil interest
When there is no implied institution of the civil action
- No implied institution of the civil action to recover
civil liability
o Waives
o Reserves
o Institutes
- The above rule has no application to independent civil
actions under Art 32, 33, 34 and 2176
Reservation of the civil action
- Made before the prosecution starts presenting its
evidence
When no reservation is required
- Actions under Art 32, 33, 34—independent civil
actions and 2176—quasi-delict
Civil liability in BP Blg 22
- The payee is entitled to receive payment of the money
for which the worthless check was issued
o The offended party is entitled to recompense
- Corresponding civil action is deemed included and
that a reservation to file such separately is not allowed
No reservation of the civil action in BP Blg 22
- the criminal action in this case shall be deemed to
include the corresponding civil action
o upon filing of the joint criminal and civil
actions, the offended party shall pay in full
the filing fees based on the amount of the
check involved
o the amount shall also be considered as the
actual damaged claimed
o what the rule prohibits is the filing of a
reservation to file the civil action arising from
BP 22
o it does not prohibit the waiver of the civil
action or the institution of the civil action
prior to the criminal action
- a separate proceeding for the recovery of civil liability
in cases of violation of BP 22 is allowed when the civil
case is filed ahead of the criminal case
When the separate civil action is suspended
- after the criminal action is commenced, the separate
civil action arising cannot be instituted until final
judgment has been entered in the criminal action
o the rule indicates the preference given to the
resolution of the criminal action
- civil action already instituted shall be suspended , in
whatever stage of the proceedings it may be found, as
long as no judgement on the merits has yet been
entered in the civil action
o the suspension sit shall last until final
judgment is rendered in the criminal action
- Applies only to civil actions arising from the offense
charged—not to independent civil actions
Counterclaim, cross-claim, third party in a criminal action
- A court cannot entertain counterclaims, cross-claims,
and third party complaints in the criminal action
o A criminal case is not the proper proceedings
to determine the civil liability of the private
complainant
o Any counterclaim, cross-claim, or third party
complaint may be made the subject of a
separate civil action
- But any cause of action which could have been the
subject thereof may be litigated in a separate civil
action
- Counterclaim
o Plaintiff alleges a cause of action, the
defendant files his answer
- Cross-claim
o One plaintiff with several defendants
o One of the defendants avers that he is not
liable but only the other defendants
- Third-party claim
o Claim by a person not yet a party to this case
Rules on filing fees
- Paid when damages are being claimed by the
15 | R I A N O - J P
offended party
a. There are no filing fees required for
actual damages, unless required by
rules. Eg. BP 22 and estafa
b. Filing fees shall be paid by the offended
party upon the filing of the criminal
action
a. Where he seeks moral, nominal,
temperate or exemplary
damages but other than actual
damages, and where the
amount is specified in the
complaint or information
b. If the amount is not specified in
the complaint or information
but any of the damages is
subsequently awarded, the
filing fees assessed in
accordance with the rules, shall
constitute a first lien on the
judgment awarding such
damages
- Filing fees are due for each count
- Actual damage
o The actual amount sustained
- Moral Damage
o Sleepless nights, besmirched reputation,
serious anxiety, mental anguish
- Temperate damage
o Actual damage is proven but the court
cannot substantiate his claim
- Nominal damage
o No proof of actual damage
Effect of death of the accused on his criminal liability
- Prior to final judgment, as when he dies pending of
his conviction, extinguishes his criminal liability
Effect of death of the accused on his civil liability
- The accused dies after the arraignment, and during
the pendency of the criminal action, the civil liability
of the accused arsing from the crime is extinguished
o The civil action instituted for recovery of civil
liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal case
- If before the arraignment, the accused dies
o Only criminal liability is extinguished but civil
liability may be prove against the estate
- The above rule has no application to independent
civil actions
o Continued against the state or legal
representative of the accused after proper
substitution or against the estate as the case
may be
- If the accused dies before the arraignment, the case
shall be dismissed but the dismissal shall be without
prejudice to any civil action which the offended party
may file against the estate of the deceased
- Why go for the estate?
o Before the arraignment, he was not able to
defend himself from the offense
o After the arraignment, the accused already
defend himself from the offense
Novation: Extinguishment of criminal liability
- Novation is not one of the grounds prescribed by RPC
for the extinguishment of criminal liability
- But it may only prevent
o Guingona v Manila
o Novation may, prevent the incipient criminal
liability to arise for as long as novation is
made prior to the institution of the criminal
proceedings
o Novation made after the institution, it will
not affect the criminal liability
- Criminal liability for estafa is not affected by a
compromise or novation of contract
o For it is a public offense which must be
prosecuted and punished by the government
on its own motion even though complete
reparation should have been made of the
damage suffered by the offended party
o In estafa, reimbursement of or compromise
as to the amount misappropriated after the
commission of the crime affects only the civil
liability of the offender, and not his criminal
liability
- Novation
o Substitution of a new contract for an old one
o If there is a change in the object of the
obligation or subject of the obligation
Effect of acquittal or the extinction of the penal action on
the civil action or civil liability
- The extinction of the penal action does not carry with
it the extinction of the civil action
- Two kinds of acquittal
a. The accused is not the author of the act or
omission complained of
a. Closes the door to civil liability because
a person who is not the author can
never be held liable
b. Based on reasonable doubt on the guilt of the
accused
a. Even if the guilt of the accused has not
been established beyond reasonable
doubt, he is not exempt from civil
liability because such liability may be
proved by mere preponderance of
evidence
- BP 22, acquitted because the element of notice of
16 | R I A N O - J P
dishonour was not established
o The act or omission from her civil liability
arose, which was the issuing of the worthless
check, clearly existed
o The acquittal was based on reasonable doubt
and it did not change the fact that the
accused issued the dishonoured check
- The acquittal of the accused does not prevent him on
civil aspect of the criminal case unless the court finds
and declares that the fact from which the civil liability
might arise did not exist
 It does not follow that if the accused is criminally
acquitted, that he has still civil liabilit
Effect of payment of the civil liability
- Does not extinguish the criminal liability
- A judge cannot dismiss a criminal case because the
civil liability has been paid
Effect of judgment in the civil case absolving the defendant
- Is not a bar to a criminal action against the defendant
for the same act or omission subject of the civil action
Effect of acquittal of the accused on his administrative case
- Does not conclude the administrative proceedings,
nor carry with it relief from administrative liability
- Only substantial evidence is necessary in
administrative cases
Subsidiary liability of employer
- Subsidiary liability are deemed written into the
judgments
- In dispositive portion of its decision, the trial court
need not expressely pronounce the subsidiary liability
of the employer
- If the party who is bound to pa but cannot because he
is insolvent, a person may be bound to pay him
subject to certain conditions
- Adequate evidence must exist establishing that:
a. They are indeed the employers of the employees
b. They are engaged in some kind of industry
c. The crime committed by the employees in the
discharge of their duties
d. The execution against the latter has not been satisfied
due to insolvency
- May be determined in the same criminal action in
which the employee’s liability, criminal and civil, has
been pronounced
Concept of prejudicial question
- Arises in a case the resolution of which is a logical
antecedent of the issue involved in the criminal case,
and the cognizance of which pertains to another
tribual
- Determinative of the criminal case , but the jurisdiction
to try and resolve it is lodged in another tribunal
- It is based on a fact distinct and separate from the
crime but so intimately connected with the crime that
it determined the guilt or innocence of the accused
- Civil action and criminal action are still pending
o The civil action, an issue which must pre-
emptively resolved before the criminal action
may proceed
Reason for the principle
- To avoid two conflicting decisions in the civil case and
in the criminal case
Requisites for a prejudicial question
- Section 7 of Rule 111. Elements of prejudicial question
a. The previously instituted civil action involves an
issue similar or intimately related to the issue
raised in the subsequent criminal action
b. The resolution of such issue determines whether
or not the criminal action may proceed
- For a civil action to be considered prejudicial to a
criminal case, the requisites are
a. The civil case involves facts intimately related to
those upon which the criminal prosecution would
be based
b. In the resolution of the issues or issues raised in
the civil action, the guilt or innocence of the
accused would necessarily be determined
c. Jurisdiction to try said question must be lodged
in another tribunal
- Prejudicial question may not be invoked in these
situations
a. Both are criminal cases
b. Both are civil cases
c. Both cases are administrative
d. One case is administrative and the other civil
e. One case is administrative and other criminal
- It will not rise if the criminal case was instituted prior
to the civil case
- Tenor
o That the issue arises in the civil case ad not in
the criminal case
o In the civil case which needs to be resolved
first before it is determined whether or not
the criminal case should proceed or whether
or not there should be, in the criminal case
a judgment of acquittal or conviction
- It is critical to show that the issue in the civil case is
determinative of the isse in the criminal case
Effect of the existence of a prejudicial question; suspension
of the criminal action
- The petition for the suspension of the criminal action
based upon the pendency of a prejudicial question in
a civil action may be filed
o The filing of a petition before the suspension
of the criminal action is required
o it precludes a motu proprio suspension by
the court of the criminal action
17 | R I A N O - J P
- since a petition to suspend can be filed only in the
criminal action, the determination of the pendency of
a prejudicial action, should be made at the first
instance i the criminal action, not before the supreme
court
- when there is a prejudicial question, the action to be
suspended is the criminal and not the previously
instituted civil action
o a prejudicial question accords a civil case a
preferential treatment and constitutes an
exception to the general rule that the civil
action shall be suspended when the criminal
action is instituted
Suspension does not include dismissal
- the rule authorizing the suspension of the criminal
case y reason of a prejudicial question does not
proscribe the dismissal of the criminal action
- it authorizes the suspension
Where to file the petition for suspension
- does not require that the criminal case be already filed
in court
o in the stage of preliminary investigation as
long as there has been already been a
previously instituted civil case
- may be filed with the office of the prosecutor
conducting the PI
o when the criminal action has been filed in
court for trial, the petition to suspend shall
be filed in the same criminal action at any
time before the prosecution rests
Case illustrations
- filed a frustrated parricide against the petitioner
o it also filed a action for the declaration of the
nullity of their marriage
o petitioner asserted that the relationship
between the offender and the victim is a key
element in parricide, the outcome of the civil
case would have a bearing in the criminal
case filed against him
o SC, the facts show that the criminal case was
filed ahead of the case for declaration of
nullity
o The rules is clear, for a prejudicial question to
exist, the civil action must be first instituted
before the filing of the criminal action
- Perjury
o He alleged that a case filed against him by
the private respondent for recovery of a sum
of money is pending before another court
o When he filed against private respondent of
a complaint for cancellation of mortgage,
delivery of title and damages
o Whether it was to prosper to suspend the
criminal case of the pending civil case, the SC
observed that the pending civil cases are
principally for the determination of whether
a loan was obtained by the petitioner from
the private respondent
o Whether petitioner executed a real mortgage
i favour of the private respondent
o The criminal case involves the determination
affidavit of loss to support his request for
issuance of a new owner’s duplicate copy of
the certificate of title
o Regardless of the outcome of the two civil
cases, it will establish the innocence or guilt
of the petitioner in the criminal case for
perjury
o The purchase by petitioner of the land or his
execution of a real estate mortgage will have
no bearing whatsoever on whether petitioner
knowingly and fraudulently executed a false
affidavit of loss
- Intra-corporate controversies occasionally
demonstrate the application of the concept of
“determinativeness” as a critical element under the
principle of prejudicial question
o Petitioner, a operations manager of a
corporation, filed a complaint for two counts
of estafa against the private respondent
o Respondents alleged that the petitioner has
no authority
o In civil cases, the private respondent was
challenging the petitioner’s authority to act
for the corporation in the corporate pending
before the RTC
o If the supposed authority of petitioner is
found to be defective, it is as if no demand
was ever made, hence, the prosecution for
estafa cannot prosper
o Filed by corporate officers questioning the
validity of the elections of the new officers
o The new set of officers filed criminal case for
estafa
o The civil case posed a prejudicial question
that should be first resolved before the
criminal action is to be pursued
- BP 22
o Petitioner issued a bouncing check in favour
of private respondents
o Private respondents filed a civil actions to
collect sums of money with damages against
the petitioner in the RTC
o Information were also filed against the
petitioner for violation of BP 22
o Even if the accused is declared not liable for
the payment of the value of the checks and
damages, he cannot be adjudged free from
criminal liability for violation of BP 22
- Respondents are debtors to the petitioners
18 | R I A N O - J P

o Respondents to pay daily interest on their
debts
o Respondents filed a complaint seeking the
declaration of “nullity of interest of 5% per
day, fixing of interest, recovery of interest
payment”
o The prejudicial question posed by the
respondents is simply whether the daily
interest rate of 5% is void, such that the
checks issued by respondent to cover said
interest are void for being contra nonos
mores, and thus case of BP 22 will no longer
prosper
o The validity or invalidity of the interest rate is
not determinative of the guilt of respondents
in the criminal cases because the reason for
the issuance of a check is inconsequential in
determining criminal culpability under BP 22
o The mere act of issuing a worthless check is
malum prohibitum
o The primordial posed before the court
hearing the BP 22 cases is whether the law
has been breached is bouncing check has
been issued
- Novation of the credit line agreement was a
prejudicial question in the prosecution for violation of
BP 22
- Whether a prejudicial exists to warrant the suspension
of the trial of the criminal cases for violation of BP 22
against petitioner until after the resolution of the civil
action for specific performance, recovery of
overpayment, and damages
o The criminal proceedings for violation of BP
22 could proceed despite the pendency of
the civil action for rescission of the
conditional sale
- Respondent contracted 1st marriage, then contracted
the 2nd marriage
o Petitioner filed for bigamy
o Respondent initiated a civil action for the
judicial declaration of absolute nullity of his
first marriage on the ground that it was
celebrated without marriage license
o Court emphasised art 40 of the family code
which requires a prior judicial declaration of
nullity of a previous marriage before a party
may remarry
o Any decision in the civil action for nullity
would not erase the fact that respondent
entered into a second marriage during the
subsistence of a first marriage
o A decision in the civil case was not essential
to the determination of the criminal charge
o It is not prejudicial question
- An action for declaration of nullity of marriage is not a
prejudicial question to a concubinage case
When an administrative case is deemed a civil case
- An action for specific performance, even is pending
with an administrative agency raises a prejudicial
question
- Subdivision developer’s failure to deliver to the buyer,
despite repeated demands from the latter
o The TCT covering certain lots subject of the
contract of sale
o Whether the administrative case for specific
performance in HLURB posed a prejudicial
question
o The action for specific performance is an
action civil in nature that could not be
instituted elsewhere except in the HLRUB,
which had exclusive and original jurisdiction
over the same
o Whether the action for specific performance
in the HLRUB would determine whether or
not the buyer is entitled to demand delivery
of the TCT’s because there was a prior need
ot determine whether or not the buyer was
duly represented by an authorized officer
when the lots were sold
o If the buyer was not entitled to said delivery,
the basis for criminal liability for violation of
PD 957 would not exist , thereby negating
the need to proceed with the criminal case
Independent civil action does not operate as a prejudicial
question
- An independent civil action based on fraud, initiated
by the defrauded party does not raise a prejudicial
question to stop the proceedings in a pending
criminal prosecution of the defendant for estafa
through falsification
19 | R I A N O - J P
RULE 111- Prosecution of Civil Action
Section 1. Institution of criminal and civil actions. — (a) When a
criminal action is instituted, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal
action.
The reservation of the right to institute separately the civil
action shall be made before the prosecution starts presenting
its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against
the accused by way of moral, nominal, temperate, or exemplary
damages without specifying the amount thereof in the
complaint or information, the filing fees thereof shall constitute
a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified
in the complaint or information, the corresponding filing fees
shall be paid by the offended party upon the filing thereof in
court.
Except as otherwise provided in these Rules, no filing fees shall
be required for actual damages.
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. (1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the
amount of the check involved, which shall be considered as the
actual damages claimed. Where the complaint or information
also seeks to recover liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall pay additional
filing fees based on the amounts alleged therein. If the
amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the
amount awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial
thereof has not yet commenced, it may be consolidated with
the criminal action upon application with the court trying the
latter case. If the application is granted, the trial of both actions
shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal actions. (cir.
57-97)
Section 2. When separate civil action is suspended. — After the
criminal action has been commenced, the separate civil action
arising therefrom cannot be instituted until final judgment has
been entered in the criminal action.
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 suspension shall last until final judgment is rendered in the
criminal action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon motion of the
offended party, be consolidated with the criminal action in the
court trying the criminal action. In case of consolidation, the
evidence already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine the
witnesses presented by the offended party in the criminal case
and of the parties to present additional evidence. The
consolidated criminal and civil actions shall be tried and
decided jointly.
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 proceeding has been suspended
shall be tolled. (n)
The extinction of the penal action does not carry with it
extinction of the civil action. However, the civil action based on
delict shall be deemed extinguished if there is a finding in a
final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist. (2a)
Section 3. When civil action may proceeded independently. —
In the cases provided for in Articles 32, 33, 34 and 2176 of the
Civil Code of the Philippines, the independent civil action may
be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the
offended party recover damages twice for the same act or
omission charged in the criminal action. (3a)
Section 4. Effect of death on civil actions. — The death of the
accused after arraignment and during the pendency of the
criminal action shall extinguish the civil liability arising from the
20 | R I A N O - J P

delict. However, the independent civil action instituted under

section 3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be
continued against the estate or legal representative of the
accused after proper substitution or against said estate, as the
case may be. The heirs of the accused may be substituted for
the deceased without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or

representatives to appear and be substituted within a period of
thirty (30) days from notice.

A final judgment entered in favor of the offended party shall be

enforced in the manner especially provided in these rules for
prosecuting claims against the estate of the deceased.

If the accused dies before arraignment, the case shall be

dismissed without prejudice to any civil action the offended
party may file against the estate of the deceased. (n)

Section 5. Judgment in civil action not a bar. — A final

judgment rendered in a civil action absolving the defendant
from civil liability is not a bar to a criminal action against the
defendant for the same act or omission subject of the civil
action. (4a)

Section 6. Suspension by reason of prejudicial question. — A

petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed
in the office of the prosecutor or the court conducting the
preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in
the same criminal action at any time before the prosecution
rests. (6a)

Section 7. Elements of prejudicial question. — The elements of

a prejudicial question are: (a) the previously instituted civil
action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action, and (b) the resolution
of such issue determines whether or not the criminal action
may proceed. (5a)
21 | R I A N O - J P
RULE 112- PRELIMINARY INVESTIGATION
- Section 1 of Rule 112
- An inquiry or a proceeding the purpose of which is to
determine whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof, and should be held for trial
Specific purpose of preliminary investigation
a. To inquire concerning the commission of a crime
and the connection of the accused with it, in
order that he may be informed of the nature and
character of the crime charged against him, and if
there is a probable cause for believing him guilty,
that the State shall take necessary steps to bring
him to trial
b. To preserve the evidence and keep the witnesses
within the control of the state
c. To determine the amount of bail
- Also designed to free a respondent from the
inconvenience, expense, ignominy, and stress of
defending himself/herself in the course of a formal
trial, until the reasonable probability of his or her guilt
has been passed upon in a more or less summary
proceeding by a competent officer designated by law
for that purpose
Nature of preliminary investigation
- the conduct of preliminary investigation is a function
that belongs to the public prosecutor
o prosecution of crime lies with the executive
department of the government whose
principal power and responsibility is to see
that the laws of the land are faithfully
executed
- the determination of probable cause, is under our
criminal justice system, an executive function that the
courts cannot interfere with in the absence of grave
abuse of discretion
o the function is lodged, at the first instance,
with the public prosecutor who conducted
the PI and ultimately with the SOJ
o courts cannot reverse the findings of
probable cause of the SOJ, except in clear
cases of grave abuse of discretion
- it is conducted to protect the innocent from the
embarrassment expense and anxiety of a public trial
o it is a substantive right and a component of
due process
o right to due process of law entail the
opportunity to be heard
o an opportunity for the presentation of the
respondent’s side with regard to the
accusation
- is a mere inquiry or a proceeding
o not a trial and does not involve the
examination of witnesses by way of direct or
cross-examinations
o not to declare the respondent guilty beyond
reasonable doubt but only to determine:
a. whether or not a crime has been
committed
b. whether or not the respondent is
probably guilty
- The prosecutor merely determines the existence of
probable cause, and to file the information if he finds
it to be so
o PI is not the occasion for full and exhaustive
display of the parties’ evidence
o The presence or absence of the elements of
the crime is evidentiary in nature and is
amatter of defense that may be passed upon
after a full-blown trial on the merits
Right to a preliminary investigation; not a constitutional
right
- Not required by the constitution
o Statutory in character and may be invoked
only when specifically created by statute
- It is a substantive right
o To deny the accused to a PI would deprive
him the full measure of his right to due
process
o A ground for a petition for certitorari and
mandamus arises
Right to a preliminary investigation; waivable
- May be waived for failure to invoke the right prior to
or at the time of the plea
Probable cause in PI
- Pertains to facts and circumstances sufficient to
support a well-founded belief that a crime has been
committed and the accused is probably guilty
o Merely based on opinion and reasonable
belief
o A finding of PI does not require an inquiry
into whether there is sufficient evidence to
procure a conviction
o Probable cause implies probability of guilt
and requires more than bare suspension but
22 | R I A N O - J P
less than evidence to justify a conviction
- To establish probable cause is based only on the
likelihood or probability, of guilt
o Probable cause does not refer to evidence
which would justify a conviction
o It refers to probability of guilt, it requires
more than bare suspicion
o Finding a probable cause needs only to rest
on evidence showing that more likely than
not a crime has been committed and was
committed by the suspect
o Evidence supporting probable cause may
even be based on hearsay
o Hearsay
 May be the basis for issuance of the
warrant “so long as there is a
substantial basis for crediting the
hearsay”
- It was not necessary for the investigating prosecutor
to delve into the validity and merits of the party’s
defense and accusation, as well as the admissibility of
the testimonies and the evidence
o This is better ventilated during the trial
o The defenses raised by the respondent in the
preliminary investigation and by inquiring
into evidentiary matters that could only be
passed upon in a full-blown trial, the
prosecutor already went into the merits of
the case
o “The duty to determine the authenticity of a
signature rests on the judge who must
conduct an independent examination of the
signature itself in order to arrive at a
reasonable conclusion as to its authenticity”
o The validity and merits of a party’s defense
and accusation, as well as the admissibility of
testimonies and evidence, are better
ventilated during the trial proper and not
during the PR
Kinds of determination of probable cause; preliminary
investigation v preliminary examination
PI PE
Determination of probable Determination of probable
cause by the executive cause by the judicial
department department
Pertains to the public one made by the judge to
prosecutor who is given a ascertain whether a warrant of
broad discretion to determine arrest should be issued
whether probable cause exists against the accused
and to charge those whom he
believes to have committed
the crime
The judge must satisfy himself
that based on the evidence
submitted, there is necessity
for placing the accused under
custody in order not to
frustrate the ends of justice
If the judge finds no probable
cause, the judge cannot be
forced to issue the arrest
warrant
Courts are precluded from reviewing findings of
prosecutors; exception
- The courts of law are precluded from disturbing the
findings of public prosecutors on the existence and
no-existence of probable cause
o The principle of separation of powers
- SOJ are not subject to interference by the courts,
except:
a. Grave abuse of discretion amounting to lack or
excess of jurisdiction
b. Grossly misapprehends the facts
c. Acts in a manner so patent and gross as to
amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined by law
d. Acts outside the contemplation of law
o Rule: SC will not interfere in the findings of
SOJ on the insufficiency of the evidence
presented to establish probable cause
o Exception: it is shown that the questioned
acts were done in a capricious and whimsical
exercise of judgment evidencing a clear case
of grave abuse of discretion amounting to
lack or excess of jurisdiction
- Court will not hesitate to interfere if there is a clear
showing that the SOJ gravely abused his discretion
- “to justify judicial intervention, the abuse of discretion
must be so patent and gross as to amount to an
invasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law or to act at all in
contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of
passion or hostility”
Instances when probable cause needs to be established
- 4 instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established
a. Sec 1 and 3 of Rule 112
o By the investigating officer, to determine
whether there is sufficient ground to
engender a well-founded belief that a crime
has been committed and the respondent is
probably guilty and should be held for trial
o Where the penalty is at least 4 years, 2
months, and 1 day
b. Sec 6 and 9, Rule 112
o By the judge, to determine whether a
warrant of arrest or a commitment order, if
the accused has already been arrested, shall
be issued and that there is a necessity of
23 | R I A N O - J P
placing the respondent under immediate
custody in order not to frustrate the ends of
justice
c. Sec 5(b) of Rule 113
o By a peace officer or a private person making
warrantless arrest, 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
d. Sec 4 of Rule 126
o By the judge, to determine whether a search
warrant shall be issued, and only upon
probable cause in connection with one
specific offense 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
things to be seized which may be anywhere
in the Philippines
Officers authorized to conduct preliminary investigation
and determine existence of probable cause
a. Provincial or City Prosecutors and their
assistants
b. National and Regional State Prosecutor
c. Other officers as may be authorized by law
- Shall include all crimes cognizable by the proper court
- Judges at first level courts are no longer allowed to
conduct preliminary investigations (AM No. 05-8-26-
SC, Oct 3, 2005)
- The following are authorized to conduct PI
a. Under the amendment to the Omnibus Election Code,
the COMELEC has the power, concurrent with the
other prosecuting arms of the government, to
conduct PI of all election offenses punishable under
Omnibus Election Code and to prosecute the same
b. Office of the Ombudsman has the authority to
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
c. The Presidential Commission on Good Government
with the assistance of the Office of the Sol Gen and
other government agencies is empowered to
investigate, file and prosecute cases investigated by it
Cases requiring a PI, when not required
- At least 4 years, 2 months, 1 day without the regard to
the fine
Procedure for cases not requiring a preliminary
investigation
- When PI is not required because the penalty
prescribed by law for the offense involves an
imprisonment less than 4 years, 2 months, 1 day
- Two ways of initiating a criminal action
a. Filing the complaint directly with the prosecutor
b. Filing the complaint or information with the MTC
Direct filing with the prosecutor
- Procedure in Sec 3 (a) of Rule 112 shall be observed
- The prosecutor shall act on the complaint based on
the affidavits and other supporting documents
submitted by the complainant
- Within 10 days
- Respondent need not be issued a subpoena or
required to submit counter-affidavits
Direct filing with the MTC
- If less than 4 years, 2 months, 1 day
o The judge need not to issue a subpoena to
the respondent in the same way as when the
complaint is filed directly with the prosecutor
- If within 10 days from filing of the complaint or
information, the judge finds no probable cause, he
shall dismiss
- Before dismissal, the judge has several options
a. Personally evaluate the evidence submitted to the
court
b. For the judge to personally examine in writing and
under oath the complainant and his witnesses in the
form of searching questions and answers
c. If the judge desires to further determine the existence
of probable cause, he may require the submission of
additional evidence within 10 days from notice
o If the judge finds no probable cause, despite
the additional evidence, the judge shall
dismiss the case within 10 days from the
submission of additional evidence or
expiration of period
- If the judge finds probable cause, he shall issue a
warrant of arrest
o If the accused has already been arrested, the
court shall instead issue a commitment order
o A WOA may not also be issued if the judge is
satisfied that there is no necessity for placing
the accused under custody, the court may
issue summons instead of WOA
o Failure to appear may be a ground for the
issuance of WOA
When preliminary investigation is not required even if the
offense is one which normally requires a PI
- If a person is arrested lawfully without a warrant
involving an offense which requires a PI
o An information or complaint may be filed
against him without need for preliminary
investigation
24 | R I A N O - J P
o The person arrested shall be required to
undergo an inquest
o This proceeding is required before a
complaint or information may be filed
against the person arrested
- Inquest proceedings are proper only when the
accused has been lawfully arrested without a warrant
- If he has been arrested in a place where an inquest
prosecutor is available, an inquest will be conducted
instead of a preliminary investigation
o In absence or unavailability of an inquest
prosecutor, an inquest may be dispensed
with
o Allows the filing of the complaint directly
with the proper court by the offended party
or a peace officer on the basis of the affidavit
of the offended party or arresting officer
o Direct filig under this rule is another instance
in which a direct filing in court may be done
Person arrested lawfully without a warrant may ask for a PI
- Sec 6 of Rule 112
- Inquest
o Is a proceeding when a person is lawfully
arrested without a warrant
o Such person may ask for a preliminary
investigation in accordance with Rule 112,
before the complaint or information is filed
o He must sign a waiver (Art 125) in the
presence of a counsel
o The PI must be terminated within 15 days
o The fact that a person was lawfully arrested
without a warrant does not bar him from
availing of a PI
o This RPC provision imposes penalty upon a
public officer or an EE who, although having
been detained a person form some legal
ground, fails to deliver the person arrested to
the proper judicial authorities within the
periods of 12, 18 or 36 hours as the case may
be
- By virtue of RA 7438, any waiver by the person
arrested or detained or under custodial investigation
shall be in writing, signed by each persons in the
presence of their counsel
- If an information or complaint has been already filed,
the person arrested who is now an accused, may still
ask for a PI within 5 days from the time he learns of its
filing, with the same right to adduce evidence in his
defense
Bail for a person lawfully arrested during the PI
- Does not preclude him from applying for bail
o In PI, the person arrested is still under
detention
o To effect his release, he may apply for bail
notwithstanding the waiver and even if no
information has yet been filed against him
- The bail must be applied for and issued by the court
in the province, city, or municipality where the person
arrested is held
o Accused arrested lawfully without warrant for
carnapping
o The assisting judge of a Marikina RTC who
approved the bail bond even if the accused
was being held in Quezon City
-
Questioning the absence of a preliminary investigation
- Must do before he enters the plea
o The court shall resolve the matter as early as
practicable but not later that the start of the
trial
o Failure to invoke the right before entering a
plea will amount to a waiver
Absence of PI; effect on the jurisdiction of the court
- Does not affect the jurisdiction of the court over the
case
- It does not impair the validity of the information, or
otherwise, renders it defective
Absence of preliminary investigation; not a ground for
motion to quash
- The absence of a PI is not a ground for the quashal of
a complaint or information
- If there is no preliminary investigation and the
accused before entering his plea call the attention of
the court to his deprivation of the required PI, the
court should not dismiss the information
o It should remand the case to the prosecutor
so that the investigation may be conducted
o The accused was deprived of full PI, instead
the Sandiganbayan is to hold in abeyance
any further proceedings therein and to
remand the case to the Office of the
Ombudsman for completion of the PI, the
outcome of which shall then be indorsed to
the Sandiganbayan for its appropriate action
Inquest proceedings
- Proper only when the accused has been lawfully
arrested without a warrant
o Not a PI
o It is a summary investigation and which does
not follow the procedures set forth in Sec 3,
Rule 112 of Rules of Court
o Informal and summary
o Its purpose is to determine whether or not
the person detained should remain under
custody and the charged in court
- Conducted by a public prosecutor
o Assigned inquest duties as an Inquest Officer
and is to discharge his duties
25 | R I A N O - J P
o Unless only at the police
stations/headquarters of the PNP in order to
expedite and facilitate the disposition of
inquest cases
- Shall be deemed commenced from the time the
Inquest Officer receives the complaint and referral
documents from the law enforcement
o Includes
a. Affidavit of arrest
b. Investigation report
c. Statements of the complainant and
witnesses
d. Other supporting evidence gathered
o Shall be subscribed and sworn to before the
Inquest Officer by the affiants
- Should be present during the inquest proceedings
o Unless reasons exists that would dispense his
presence like confinement in a hospital,
detention in a place requiring maximum
security or his presence is not feasible by
reason of age, health or similar facts
- If necessary, the Inquest Officer shall require the
presence of the complaining witnesses and subject
them to an informal and summary investigation or
examination for purpose of determining the existence
of probable cause
Possible options of the inquest prosecutor
- Has an initial duty
- To determine if the detained person has been arrested
lawfully in accordance with Sec 5(a) and (b) of Rule
113 of the Rules of Court
o The IO may summarily examine the arresting
officers on the circumstances surrounding
the arrest or apprehension of the detained
person
- Should it be found that the arrest was not made in
accordance with the Rules of Court, the Inquest
Prosecutor shall not proceed with the inquest
proceedings
o He shall recommend the release of the
defense, note down the disposition on the
referral document, prepare a brief
memorandum indicating the reasons for the
action he took and forward the same
together with the record of the case, to City
of the Provincial Prosecutor for appropriate
action
o When the recommendation is approved, the
order of release shall be served
o The officer shall also serve upon the detainee
a notice of preliminary investigation if the
evidence on hand warrants the conduct of a
regular PI
o The detainee shall be also released for
further investigation
- Should it be found that the arrest was properly
effected, the inquest shall proceed but the IO shall
first ask the detained person if he desires to avail
himself of a PI
o If he does, he shall be made to execute a
waiver of the provisions of Art 125
o PI may be conducted by the IO himself or by
any other Assistant Prosecutor to whom the
case may be assigned
o If the IP finds that probable cause exists, he
shall prepare the corresponding information
with the recommendation that the same be
filed in court
o If no probable cause is found he shall
recommend the release of the detained
person
The inquest must pertain to the offense for which the
arrest was made
- The inquest conducted must be for the offense for
which the detainee was arrested
- Congressman Crispin Beltran Case
o He was arrested without a warrant following
the issuance by Pres GMA of Presidential
Proclamation No 1017 on 24 Feb 2006
o Declaring a “State of National Emergency”
o When he was arrested he not informed of
the crime for which he was arrested
o On the evening of his arrest, he was
subjected to an inquest at the Quezon City
Hall of Justice for Inciting Sedition based on
a speech Beltran allegedly gave during a rally
on the occasion of EDSA revolution
o After 1st inquest, he was again subjected to a
2nd inquest but this time for rebellion
o The panel of prosecutors from DOJ
conducted the 2nd inquest
o They issued a resolution finding probable
cause to indict Beltran and San Juan as
“leaders/promoters” of the alleged rebellion
o The panel then filed an Information with RTC
Makati
o The SC held that the inquest proceedings
against Beltran for rebellion is void
o The join affidavit of Beltran’s arresting
officers states that the officers arrested
Beltran, without a warrant, for Inciting to
Sedition, and not for Rebellion
o The inquest prosecutor could only have
conducted an inquest for inciting to Sedition
and no other
o Beltran’s panel of prosecutors failure to
comply with Sec 6, Rule 112 was declared
void
The procedure for PI must be strictly followed
- In a PI of the rebellion charges against certain
26 | R I A N O - J P
personalities, the Court observed that the charges
were merely based on the unsubscribed letters of
CIDG investigators alleging that the respondents have
committed acts constituting rebellion
- The court found that the panel of prosecutors failed
to comply with Sec 3, Rule 112
- Respondent prosecutors treated the unsubscribed
letters of the officers of CIDG-PNP as complaints and
accepted the affidavits attached to the letters even
though some were notarized
- The uncontroverted facts, belie the prosecutors’
statement that the PI was done in accordance with the
RROCP
Initial steps in preliminary investigation; filing of the
complaint for PI
- It is the filing of the complaint with the investigating
prosecutor that starts the PI process
- The complaint is normally initiated through an
affidavit of complaint
- The complaint is required to state the address of the
respondent:
a. Affidavits of the complainant
b. Affidavits of his witnesses
c. Other supporting documents
- Number of copies shall be in such number as there
are respondents plus 2 copies for the official file
o the complaint referred to in a preliminary
investigation is not just the affidavit of the
complainant
o His affidavit is merely treated as a
component of the complaint
o The rule recognizes that all necessary
allegations need not be contained in a single
document
- The rule established a hierarchy with respect to the
persons before whom the affidavits may be
subscribed and sworn to
o The affidavits that shall accompany the
complaint shall be subscribed and sworn to
before any prosecutor and not necessarily
before the investigating prosecutor
o It may also be subscribed before any
government official authorized to administer
oaths
o In their absence, the affidavits may be
subscribed and sworn to before a notary
public
- The prosecutor, official or notary public before whom
the affidavits were subscribed and sworn to does not
perform a mere perfunctory or mechanical duty
o He is obligated by the rules to conduct a
personal examination of the affiants and
corollarily, to certify that he personally
examined the affiants and he is satisfied that
they voluntarily executed and understood
their affidavits
Dismissal of the complaint or issuance of a subpoena
- From the filing of the complaint, the investigating
officer as 10 days within which to decide which of the
following options to take:
a. To dismiss the complaint if he finds no grounds to
conduct the investigation
b. To issue a subpoena to the respondent in case he
finds the need to continue with the investigation, in
which case the subpoena shall be accompanied with a
copy of the complaint and its supporting affidavits
and documents
- The respondent is entitled to receive when the
subpoena is served upon him are:
a. The copy of the complaint
b. Supporting affidavits and documents
- The rule does not require the investigating officer to
furnish the respondent with the copies of the counter-
affidavits of his co-respondents
- Sec 3(b) Rule 112
o A respondent’s right to examine refers only
to “evidence submitted by the complainant”
- The respondent to whom the subpoena was issued
shall have the right to examine the evidence
submitted by the complainant and to copy them at his
expense
o 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
o Objects as evidence need not to be furnished
to a party but shall be made available for
examination, copying, or photographing at
the expense of the requesting party
*Subpoena Counter-affidavit Reply Affidavit Rejoinder
Affidavit
Filing of counter-affidavit by the respondent; no motion to
dismiss
- Respondent who receives the subpoena, complaint,
affidavits and other supporting documents, is not
allowed to file a motion to dismiss in lieu of a
counter-affidavit
o Within 10 days from receipt of the subpoena,
he is required to submit his counter-affidavit,
the affidavits of his witnesses and the
supporting documents relied upon for his
defense
o The counter-affidavits shall be subscribed
and sworn by the prosecutor or any
government official authorized to administer
27 | R I A N O - J P
oaths
o In none, the notary public
- Sec 3, Rule 112
o Grants the complainant the right to receive a
copy of the respondent’s counter-affidavit
o Failure to give the complainant a copy of the
counter-affidavit is a procedural defect
- It is a common practice to allow the filing of a reply to
the counter-affidavit usually denominated as a reply-
affidavit
o The respondent is allowed to rebut the reply-
affidavit through a rejoinder-affidavit
o There is no provision in Rule 112 that gives
the complainant or requires the prosecutor
to observe the right to file a reply to the
accused’s counter-affidavit
o Right to resolve the complaint even without
a counter-affidavit
 (d) if the respondent cannot
subpoenaed, or if subpoenaed,
does not submit counter-affidavits
within 10 day period, the
investigating officer shall resolve
the complaint based on the
evidence presented by the
complainant
Action to be taken if the respondent does not submit his
counter-affidavit
- Despite the subpoena, within the 10 day period
- The investigating officer shall resolve the complaint
based on the evidence presented by the complainant
- The same rule apply in case the respondent cannot be
subpoenaed
Clarificatory hearing if necessary; no right of cross-
examination
- Within 10 days from the from the submission of the
counter-affidavit, other affidavits and documents filed
by the respondent, or within 10 days from the
expiration of the period of their submission
o A hearing may be set by the investigating
officer, if there are facts and issues to be
clarified wither from a party or a witness
o The parties can be present but do not have
the right to examine or cross examine
o If they questions to ask, they shall submit the
questions to the investigating officer
o The hearing shall be terminated within 5 days
- A clarificatory hearing is not indispensable during PI
o It is within the jurisdiction of the IO whether
to set the case for further hearings to clarify
some matters
o It is optional
No right to cross-examine in a PI
- No right to cross examine
- The respondent shall only have to submit a counter-
affidavit, to examine all other evidence submitted by
the complainant
Determination by the investigating officer
- Within 10 days from the termination of the
investigation
- The IP shall determine whether or not there is
sufficient ground to hold the respondent for trial
Resolution of investigating prosecutor; certification of PI
- If IP finds cause to hold the respondent for trial, he
shall prepare both resolution and information
- If no probable cause, he shall recommend the
dismissal of the complaint
- The information shall contain a certification by the PI
under oath in which he shall certify to the following:
a. He or as shown by the record, an authorized officer,
has personally examined the complainant and his
witnesses
b. There is a reasonable ground to believe that a crime
has been committed
c. The accused is probable guilty
d. That the accused was informed of the complaint and
of the evidence submitted against him
e. He was given an opportunity to submit controverting
evidence
Effect of the absence of the required certification
- The information is considered valid
- Certification is not an essential part of the information
- What is not allowed is not having PI being previously
conducted
Forwarding of the records of the case for action; need for
approval before filing or dismissal
- Within 5 days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor
or chief state prosecutor, or to the ombudsman or his
deputy
o They shall act on the resolution within 10
days from their receipt
- No complaint or information may be filed or
dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the
ombudsman or his deputy
o The resolution of the IP may be reversed or
affirmed
Rule when recommendation for dismissal is disapproved
- The IP, may by himself, file an information against the
respondent, or direct another assistant prosecutor or
state prosecutor to do so without conducting another
PI
Motion for reconsideration
28 | R I A N O - J P
- Within 15 days from receipt of the assailed resolution
- If the motion is denied, the aggrieved party may
appeal within 15 days from the denial of the MR
Appeals to the SOJ
- Prosecutor’s ruling is reviewable by the SOJ who has
the power to reverse, modify, or affirm the
prosecutor’s determination
- SOJ’s power to control over the authority of a state
prosecutor to conduct preliminary investigations on
criminal actions
- The appeal does not hold or prevent the filing of the
corresponding information in court based of probable
cause in the appealed resolution
o Unless the SOJ directs otherwise
- Under Sec 11 (c) of Rule 116
o Upon motion by the proper party, the
arraignment shall be suspended among
others, if a petition for review of the
resolution of the prosecutor is pending
Assailing the resolution of the SOJ; petition for review
under Rule 43 not allowed; petition for certiorari under
Rule 65 filed with the CA
- The action of the SOJ is not subject to the review of
courts unless there is a showing that he committed
grave abuse of discretion
o If findings of the IP or the SOJ as to the
existence of probable cause are equivalent to
a gross misapprehension of facts, certiorari
will lie to correct these errors
- How resolution may be reviewed
o Petition for certitiorari under Rule 65
- The CA is clothed with the jurisdiction to review the
resolution issued by the SOJ through a petition for
certiorari under Rule 65
Review of DOJ resolution in tax and tariff cases
- Rule 65 does not apply to tax and tariff offensed
- Transferred to the CTA by virtue of RA 9282
Appeal to the Office of the President
- Judicial pronouncements do not allow an appeal to
the CA under Rule 43 from the resolution of the SOJ,
the appeal referred to in such pronouncements
evidently pertains only to a judicial appeal
- An administrative appeal is not proscribed
o Memo Circ No 58 (June 30, 1993)
o Appeals or petition for review of
decisions/orders/resolutions of the SOJ on PI
of criminal cases are entertained by the
Office of the Pres”, under the following
conditions
a. The offense involved is punishable by
reclusion perpetua to death
b. New and material issues are raised
c. Prescription of the offense is not due to
lapse within 6 months from notice of the
questioned resolution
d. The appeal or petition for review is filed
within 30 days from notice
o If the appeal is not within the jurisdiction of
the Office of the President, the appeal shall
be dismissed outright
- Adverse decision
o A verified petition for review may be taken
by the CA within 15 days from notice of the
final order of the Office of the President
following the procedure set forth under Rule
43
Appeals under Rule 43 and 45
- From the Office of the President, the aggrieved party
may file an appeal with the CA pursuant to Rule 43—
through a verified complaint
- the party aggrieved by the judgment, final order or
resolution of the Court of Appeals may avail of an
appeal by certitorari to the SC under Rule 45
Review of the rulings of the Ombudsman in criminal cases
- the ruling of the Ombudsman shall be elevated to the
Supreme Court by way of Rule 65
o restricted only in determining whether grave
abuse of discretion has been committed
o the court is not authorized to correct every
error or mistake of the Office of the
Ombudsman other than grave abuse of
discretion
Records supporting the information or complaint filed in
court
- not only the complaint or the information that is filed
in court
o it shall be supported by affidavits and
counter-affidavits of the parties and their
witnesses, together with the other
supporting evidence and the resolution of
the case
- the record of PI shall not form part of the record of
the case
o although not part of the record, the court
may order the production of the record or
any of its part when the court considers it
necessary in the resolution of the case or any
incident therein, or when it is introduced as
an evidence in the case by the requesting
party
Action of the judge upon filing of the complaint or
information
- within 10 days, from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor
- the judge may make findings after personally
evaluating the resolution of the prosecutor
a. fails to establish probable cause
29 | R I A N O - J P
b. established probable cause
c. engenders a doubt as to the existence of
probable cause
o if the evidence on record clearly fails to
establish probable cause, the judge
immediately dismiss the case
- if he finds probable cause, he shall issue a warrant of
arrest
o the court shall issue a commitment order
instead of a warrant of arrest (Sec 6, Rule
112)
o a commitment order instead shall also be
issued by the court in case the accused has
already been previously validly arrested
pursuant to other legal processes
o when a PI has been previously conducted,
does not have the duty to personally
examine the complainant and his witnesses
in writing and under oath and in the form of
searching questions and answers
o this type of examination of the complainant
and his witnesses applies, as an option of the
court, only when there is a direct filing of the
complaint or information with the MTC since
no previous PI has been conducted
o if the judge doubts the existence of probable
cause, the judge may order the prosecution
to submit additional evidence within 5 days
from the notice
o the issue must be resolved by the court
within 30 days from the filing of the
complaint or information
- the option available to the RTC upon the filing of an
information before it by the public prosecutor or any
prosecutor of the SOJ are the following:
a. dismiss the case if the evidence on record clearly
failed to establish probable cause
b. Issue a warrant of arrest if its finds probable
cause
c. Order the prosecutor to present additional
evidence within 5 days from notice, in case of
doubt as to the existence of probable cause
- The option to order additional evidence is mandatory
- The court’s first option is for it to “immediately dismiss
the case if the evidence on record clearly fails to
establish probable cause
- Courts are not irrevocably bound to the determination
of probable cause of the prosecutor
Dismissal of a case for lack of probable cause, a final order
- The order of the court, dismissing a case for lack of
probable cause, is a “final order since it disposes of
the case, terminates the proceedings, and leaves the
court with nothing further to do with respect to the
case”
o They did not consider certiorari as the proper
remedy, but appeal, if the trial court
dismisses a criminal complaint or information
for lack of probable cause
- The court ruled that the order of the RTC granting the
motion of the prosecution to withdraw the
information and ordering the case dismissed, is final
because it disposed of the case and terminated the
proceedings, leaving nothing to be done by the court
o The proper remedy is appeal
When warrant of arrest is not necessary
- Complaint or information has already been filed
pursuant to a lawful warrantless arrest
o If the accused is already under detention and
was lawfully arrested without a warrant and a
complaint or information has been filed
o When a warrant has already been issued by
the MTC judge
- When the accused charged for an offense punishable
only by fine
- When the case is subject to the Rules on Summary
Procedure
o Unless he fails to appear whenever required
Withdrawal of the information already filed in court
- Crespo v Mogul—whether the trial court acting on a
motion to dismiss a criminal case filed by the
Provincial Ficsal upon instructions of the SOJ to whom
the case was elevated for review, may refuse to grant
motion and insist on the arraignment and trial on the
merits
o Once a criminal complaint or information is
filed in court, any disposition of the case or
dismissal or acquittal or conviction of the
accused rests within the exclusive
jurisdiction, competence, and discretion of
the trial court
- The bounden duty of the trial court is to make an
independent assessment of the merits of such motion
o While the secretary’s ruling is persuasive, it is
not binding on the courts
o When the TC’s order rests entirely on the
assessment of the DOJ without doing its own
independent evaluation, the TC effectively
abdicates its judicial power and refuses to
perform a positive duty
- Trial court is not bound to adopt the resolution of the
SOJ since it is mandated to independently evaluate or
assess the merits of the case
- The rule applies even before or after arraignment of
the accused
o It does not subservience to or defiance of the
directive of the SOJ, but in the sound
discretion exercise of its judicial prerogative
- The SC emphasized that the TC, having jurisdiction
over the case, is not bound by such resolution but is
30 | R I A N O - J P
required to evaluate it before proceeding further with
the trial
o The SOJ’s ruling is persuasive, it is not
binding in courts
No preliminary investigation under Revised Rule on
Summary Procedure
- Shall commenced either by the filing of the complaint
or information in the MTC
- However, in Metro Manila and other chartered cities,
such cases shall be commenced only by information
o Except when the offense cannot be
prosecuted de officio
RULE 112- Preliminary Investigation
Section 1. Preliminary investigation defined;  when required. —
Preliminary investigation is an inquiry or proceeding to
determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for
trial.
Except as provided in section 7 of this Rule, a preliminary
investigation is required to be conducted before the filing of a
complaint or information for an 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. (1a)
Section 2. Officers authorized to conduct preliminary
investigations. —
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall
include all crimes cognizable by the proper court in their
respective territorial jurisdictions. (2a)
Section 3. Procedure. — The preliminary investigation shall be
conducted in the following manner:
(a) The complaint shall state the address of the
respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well
as other supporting documents to establish probable
cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official
file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official
authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who
must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed
and understood their affidavits.
(b) Within ten (10) days after the filing of the
complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its
supporting affidavits and documents.
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.
Objects as evidence need not be furnished a party but
shall be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena
with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other
supporting documents relied upon for his defense.
The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to
file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits
31 | R I A N O - J P
within the ten (10) day period, the investigating officer
shall resolve the complaint based on the evidence
presented by the complainant.
(e) The investigating officer may set a hearing if there
are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They
may, however, submit to the investigating officer
questions which may be asked to the party or witness
concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other
documents or from the expiration of the period for
their submission. It shall be terminated within five (5)
days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for
trial. (3a)
Section 4. Resolution of investigating prosecutor and its review.
— If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof; that
the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity
to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within
ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal
of the complaint but his recommendation is disapproved by
the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information
against the respondent, or direct any other assistant prosecutor
or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The
same rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. (4a)
Section 5. Resolution of investigating judge and its review. —
Within ten (10) days after the preliminary investigation, the
investigating judge shall transmit the resolution of the case to
the provincial or city prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan
in the exercise of its original jurisdiction, for appropriate action.
The resolution shall state the findings of facts and the law
supporting his action, together with the record of the case
which shall include: (a) the warrant, if the arrest is by virtue of a
warrant; (b) the affidavits, counter-affidavits and other
supporting evidence of the parties; (c) the undertaking or bail
of the accused and the order for his release; (d) the transcripts
of the proceedings during the preliminary investigation; and (e)
the order of cancellation of his bail bond, if the resolution is for
the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the
provincial or city prosecutor, or the Ombudsman or his deputy,
as the case may be, shall review the resolution of the
investigating judge on the existence of probable cause. Their
ruling shall expressly and clearly state the facts and the law on
which it is based and the parties shall be furnished with copies
thereof. They shall order the release of an accused who is
detained if no probable cause is found against him. (5a)
Section 6. When warrant of arrest may issue. — (a) By the
Regional Trial Court. — Within ten (10) days from the filing of
the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds
probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested
pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information
was filed pursuant to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days
from notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of information.
(b) By the Municipal Trial Court. — When required pursuant to
the second paragraph of section 1 of this Rule, the preliminary
investigation of cases falling under the original jurisdiction of
the Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court may be
32 | R I A N O - J P
conducted by either the judge or the prosecutor. When
conducted by the prosecutor, the procedure for the issuance of
a warrant or arrest by the judge shall be governed by
paragraph (a) of this section. When the investigation is
conducted by the judge himself, he shall follow the procedure
provided in section 3 of this Rule. If the findings and
recommendations are affirmed by the provincial or city
prosecutor, or by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a warrant of
arrest. However, without waiting for the conclusion of the
investigation, the judge may issue a warrant of arrest if he finds
after an examination in writing and under oath of the
complainant and his witnesses in the form of searching
question and answers, that a probable cause exists and that
there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice.
(c) 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 7 of this
Rule or is for an offense penalized by fine only. The court shall
then proceed in the exercise of its original jurisdiction. (6a)
Section 7. 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 office 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)
Section 8. Records. — (a) Records supporting the information or
complaint. — An information or complaint filed in court shall
be supported by the affidavits and counter-affidavits of the
parties and their witnesses, together with the other supporting
evidence and the resolution on the case.
(b) Record of preliminary investigation. — The record of the
preliminary investigation, whether conducted by a judge or a
fiscal, shall not form part of the record of the case. However,
the court, on its own initiative or on motion of any party, may
order the production of the record or any its part when
necessary in the resolution of the case or any incident therein,
or when it is to be introduced as an evidence in the case by the
requesting party. (8a)
Section 9. Cases not requiring a preliminary investigation nor
covered by the Rule on Summary Procedure. —
(a) If filed with the prosecutor. — If the complaint is
filed directly with the prosecutor involving an offense
punishable by imprisonment of less four (4) years, two
(2) months and one (1) day, the procedure outlined in
section 3(a) of this Rule shall be observed. The
prosecutor shall act on the complaint based on the
affidavits and other supporting documents submitted
by the complainant within ten (10) days from its filing.
(b) If filed with the Municipal Trial Court. — If the
complaint or information is filed directly with the
Municipal Trial Court or Municipal Circuit Trial Court
for an offense covered by this section, the procedure
in section 3(a) of this Rule shall be observed. If within
ten (10) days after the filing of the complaint or
information, the judge finds no probable cause after
personally evaluating the evidence, or after personally
examining in writing and under oath the complainant
and his witnesses in the form of searching question
and answers, he shall dismiss the same. He may,
however, require the submission of additional
evidence, within ten (10) days from notice, to
determine further the existence of probable cause. If
the judge still finds no probable cause despite the
additional evidence, he shall, within ten (10) days from
its submission or expiration of said period, dismiss the
case. When he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused had already been arrested, and hold him for
trial. However, if the judge is satisfied that there is no
necessity for placing the accused under custody, he
may issue summons instead of a warrant of arrest. (9a)