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CRIMINAL PROCEDURE

(THE BAR LECTURES SERIES)


Updated Edition

BY

WILLARD B. RIANO
Bar Reviewer in Remedial Law, Commercial Law and Civil Law
Author: Fundamentals of Civil Procedure; Evidence,
(A Restatement for the Bar);
Civil Procedure (A Restatement for the Bar);
Evidence (The Bar Lectures Series)
Dean, College of Law, San Sebastian College Recoletos-Manila
Member, Remedial Law and Commercial Law Committees,
U.P. Law Center
Professor and Lecturer, Philippine Judicial Academy,
Supreme Court of the Philippines

2011

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iii
PREFACE

After became
materials this work was submitted
available for publication
which contained on January
court decisions 5, 2011,
worthy to be
recommended for further readings. Foremost of these cases is that of
Judith
Yu v. Samson-Tatad (G.R. No. 170979, February 9, 2011), which ended
previous speculations as to the applicability of the "fresh-period" rule to
appeals in criminal cases. Hence, the need for an updated edition.
This edition required the insertion of new case citations within the main
chapters as well as the discussion of more recent Court rulings under the
heading, Synopsis of Selected Cases. The cases selected were those with facts
not involved in those decisions treated in the srcinal edition. The criminal
procedure aspects of the Rules of Procedure in Environmental Cases were
likewise added.
In the process of enhancing the current material, some paragraphs which
could have possibly given rise to misunderstanding were deleted. Mere
matters of opinion were likewise taken out so as not to detract from the
instructional purpose of this material. Also, certain portions which are matters
of purely substantive law were expunged and only those necessary to explain
procedural concepts were retained. Some paragraphs were likewise reworded
for greater clarity in the presentation of procedural principles. In some
instances, adjustments to editorial oversights in the srcinal edition were
effected.
It is worth reiterating that this work is written primarily for the bar
reviewee and the law student who need to be adequately equipped with the
"core" knowledge required to hurdle the bar examinations. It is based on an
empirically anchored deep-seated philosophy that passing the bar

V
examinations requires a quick recall of the law and the rules. Hence, topics in
this work have been treated with emphasis on the very substance of the Rules
of Court, a treatment traditionally referred to by academicians as a 'codal'
approach.
While the framework of this material is mainly codal- based, it is
supported by cases which mirror, not only the current position of the Supreme
Court on vital issues in the criminal litigation process but also by significant
foreign cases designed to aid the reader to understand a particular rule from a
parallel doctrinal perspective. Cases have been judiciously selected to permit
the reader to appreciate how the Supreme Court grappled with and settled a
wide range of issues arising in the various stages of criminal procedure.
The scope of this book reveals its having no pretensions of being an
exhaustive treatise on criminal procedure. Honest efforts have been taken to
strip it of materials which veer away from what is fundamental and basic to
allow a reasonably wide wiggle room for the reader to focus on procedural
principles and concepts which have a fairly high probability of being utilized by
the examiner in the framing of bar questions.
As he goes through the various concepts of procedural law, the student
is reminded that the principles underlying criminal procedure, like those of any
other procedural rule, are construed liberally to meet the demands of justice.
In our academic life we have always been beset by questions on matters
involving consistency in the application of the rules. We have actually
endeavored to show that there are no inconsistencies, and in order to fully
appreciate the wisdom of Court decisions, the student must be aware that
each case is decided in accordance with the facts and the issues raised by the
parties.
While our concern for the academic needs of our law students supplied
the motivation for us to start and complete this work, the invaluable
participation of Atty. Ernesto C. Salao and Atty. Maria Theresa P. Cabayan in
the publication of this work is sincerely acknowledged for without their
tremendous encouragement, assistance, and editorial skills, this material
would not have seen the light of day.

vi
Lastly, the bar candidate and the law student is asked to consider this
work as a humble recognition of their perseverance and their unwavering
commitment to their future in the legal profession.

WILLARD B. RIANO

Quezon City September


15, 2011

vii
CONTENTS

Chapter I PRELIMINARYONSIDERATIONS
C

I. BASIC CONCEPTS
Conceptof criminal procedure.................... ......................
.......................
......................
. 1
The adversarial or accusator ial system ......................
.......................
......................
........ 2
Liberalinterpretation of the rules.................... ......................
......................
.................... 3
Due process;mandatory...................... .......................
......................
.......................
........ 3
A. Requisites for the Exercise of Criminal
Jurisdiction .................................................................................................................... 4
Requisites .......................
......................
......................
.......................
......................
...............
4
Jurisdiction over the subject matter versus
jurisdiction over the person of the accused ............................................................. 4
Jurisdiction over the territory; venue in criminal
cases (Bar 1997) ........................................................................................................... 5
When a court has jurisdiction to try offenses not
committedwithinits territorialjurisdiction .......... ........
........
.........
........
........
........
.. 6
B. Criminal Jurisdiction Over the SubjectMatter ............ ........
........
.........
........
......10
Jurisdiction overthe subject matter.................... ......................
......................
................. 10
How jurisdiction over the subject matter
is conferred ................................................................................................................. 11
How jurisdiction over the subject matter is
determined....................
.......................
.......................
......................
.......................
.. 12
Statute applicab
le toa criminal action................... .......................
......................
............. 13
Use of the imposable penalty.......................
.......................
......................
.......................
. 14
Principle of adherence of jurisdiction or
continuing jurisdiction.....................
.......................
......................
.......................
......14
Dismissal on jurisdictional grounds; special
appearance ....................
.......................
.......................
......................
.......................
.. 15
Raising the issue of jurisdiction for the first
time in the Supreme Court ....................................................................................... 16
C. Criminal Jurisdiction Over the Person of The
Accused (Bar 2008) .................................................................................................... 17

ix
D. Injunction To Restrain Criminal Prosecution
(Bar 1999) ................................................................................................................... 19
E. Mandamus to Compel Prosecution (Bar 1999) ....................
......................
.................... 20
II. CRIMINAL JURISDICTION OF COURTS
A. Criminal Jurisdiction of the Municipal Trial
Court, Municipal Circuit Trial Court,
and Metropolitan Trial Court (MTC).....................
......................
.......................
..... 21
B. Criminal Jurisdiction of Regional Trial
Court (RTC) ................................................................................................................. 23
C. Criminal Jurisdiction of the Sandiganbayan
(P.D. 1606, R.A. 7975 and R.A. 8249)...................................................................... 24
Offenses subject to the jurisdiction of the
Sandiganbayan (Bar 1997)......................
......................
........................................... 28
Officials and employees with a salary grade
of "27" orhigher .......................................
.......................
.......................................... 29
Officersfallingbelowsalarygrade'27" ............. ........
............................................. 30
Salary grade alone does not determine
jurisdiction of the Sandiganbayan .......................................................................... 33
A student regent of a state university is a
publicofficer....................
......................
......................
..............................................
. 34
Offensescommittedin relationto the office ........... ............................................. 34
When the actual specific allegations of the
intimacy between the offense and the official duties of the accused need not
appear
in the information ..................................................................................................... 38
Anti-Money Laundering cases...................... ......................
..................................... 40

Forfeiture cases.....................
......................
.......................
......................
.................. 40
Summary procedure crimina in l cases....................
......................
......................
... 40
Prohibited pleadings, motions and petitions n summary
i procedure (Bar 2004); civil
and criminal case .......................
.......................
......................
......................
... 42
III. SYNOPSIS OF THE CRIMINAL LITIGATION PROCESS
Initial contact with the criminal justice system .........................................
.......................
......... 43
Filing of the information or complaint and other
processe s ...................
.......................
.......................
......................
.......................
......47
Implied institution ofthe civilaction .................................... ......................
.......................
......... 48
Availment of provisionalremedies ................... .......................
......................
.......................
..... 49
Bail .....................
......................
.......................
.......................
......................
......................
.............
49
Arraignment; bill of particulars; suspension of
arraignment ............................................................................................................... 50
Quashal ofcomplaint or information......... .......................
......................
......................
............. 51

XXV
Pre-trial....................
......................
.......................
......................
......................
................... 51
Trial;demurrer ......................
......................
.......................
......................
......................
..... 52
Judgment ....................
......................
......................
.......................
......................
............... 53
Post-judgmentremedies ...................... .......................
......................
.......................
....... 53
Entry of judgment ..............................................
......................
.......................
..................
54

Chapter II
PROSECUTION OF OFFENSES (RULE 110)

I. INSTITUTION OF CRIMINAL ACTIONS


Purpose of a criminal action .............................................................................................. 55
How criminal actions are institute d (Bar1999).................... ......................
..................... 55
Institution of criminal actions in Manila
and other chartered cities ......................
......................
......................
.......................
......... 56
No direct filing in the Regional Trial Court and Metropolitan Trial
Court of Manila and other
chartered cities.....................
......................
.......................
.......................
......................
..... 56
Effect of the institution of the criminal action on the
prescriptive period (Bar 1993)...................... .......................
......................
.......................
. 57
Illustration ofthe aboverules....................... ......................
.......................
......................
.. 57
Rule on prescription for violations of special laws
and municipal ordinance s ......................
......................
......................
.......................
......... 59
II. PROSECUTION OF THE CRIMINAL ACTION
Who must prosecute the criminal action; who
controls the prosecution (Bar
1990; 2000) ....................
......................
.......................
..... 67
Appearan ce ofa private prosecutor
.......................
.......................
......................
............. 68
Effect of filing of an independent civil action on the right of the offended party to intervene

in the
prosecution of the offense .....................
......................
......................
.......................
......... 68
Consequences of the rule that a criminal action is prosecuted under
the direction and control
of the public prosecutor.....................
......................
.......................
......................
............. 69
Prosecution of a criminal action in the Municipal
Trial Court orMunicipalCircuitTrialCourt ........ .........
........
........
........
........
.........
........
.... 74
Prosecution forviolation ofspecial laws....................
.......................
......... ..................... 74
III. INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION OF
THE CRIMINAL ACTION
Intervention of the offended party................................................................................... 75
When a private prosecutor may prosecute a case
even in theabsence of the public prosecutor .......................
......................
.................... 76

xi
Extent of the authority given to the private
prosecutor when duly authorized to prosecute
the action...................
.......................
.......................
......................
.......................
............... 77
IV. PROSECUTION OF "PRIVATE CRIMES"
Prosecution of adultery and concubinage ....................................................................... 77
Prosecution of seduction, abduction and acts
of lasciviousness ....................
......................
.......................
......................
.......................
.... 78
Effect of R.A. 7610 (Special Protection of Children Against Child Abuse, Exploitation and

DiscriminationAct) ......................
.......................
......................
.......................
................... 78
Prosecution of Defamation ................................................................................................ 79
V. THE COMPLAINT AND INFORMATION
Meaningof'compl aint' .......................
......................
......................
.......................
........... 97
In whose nameand against whom filed.................... ......................
.......................
....... 80
Meaning of'information' (Bar 1994,1995,1996) ..... .................
........
........
........
........
.... 80
Distinctions between a complaint and an
information (Bar 1999).................... .......................
......................
.......................
... 81
Infirmityni signature inthe information........ .. ........ ........
........
.........
........
........
........
..... 81
Sufficiency ofthe complaint or information...................... ......................
......................
81
Test for sufficie
ncy of thecomplaint or information ........
. ........
.................
........
........
.. 82
Questioning the insufficiency of the complaint
or informat ion .......................
......................
.......................
......................
............... 82
Objections as to form......................
......................
.......................
......................
...............83
Date ofthe commission of the offense ......................
......................
.......................
....... 83
Determination of the nature and character
of the crime....................
.......................
................................
......................
........... 84
How tostate thename ofthe accused ......................
......................
.......................
....... 84
How to state the name of the offended party who
is a naturalperson.....................
......................
......................
.......................
........... 85
How to state the name of the offended party which
is a juridical person....................
......................
......................
.......................
........... 85
Rule if the name of the offended party is unknown
in offenses against property.............................................
......................
............... 85
Designationof the offense...........................................
......................
.......................
....... 86
Effect of failure to designate the offense by the statute
or failureto mentionthe provisionviolated........ ........
........
........
.........
........
..... 87
Effect of failure to specifythe correct crime ............... ........
........
........
.........
........
.......... 88
Statement of the qualifying and aggravating
circumst ances(Bar 2001)......... .......................
......................
......................
. 88
Cause of the accusation ......................
......................
......................
.......................
...........92
How to state the date of the commission
of the offense....................
.......................
......................
.......................
........ 96
Duplicity of the offense (Bar 2005).....................
.......................
......................
...............97

xii
VI. VENUE OF CRIMINAL ACTIONS
Rule where offense is committed in a train, aircraft
or vehicle ....................
......................
.......................
......................
......................
..... 99
Rule where offenseis committedon boarda vessel........ ........
.........
........
........
........
.. 99
Rule when the offense is covered by Art. 2 of the
Revised Penal Code .................... .......................
......................
.......................
........ 100
How to state the place of the commission

of the offense....................
.......................
......................
.......................
................... 100
VII. AMENDMENT OR SUBSITUTION OF THE
COMPLAINT OR INFORMATION
Amendment of the information or complaint

before plea; no need forleave (Bar 2001; 2002)


.....................
......................
............... 010
When leave of court is required even if the amendment
is made before plea ....................
.......................
......................
.......................
.................. 100
Rule as to amendment made after the plea
of the accused .......................
......................
.......................
.......................
......................
... 101
When an amendment is formal or substantial
(Bar 1997).......................
......................
......................
.......................
......................
........... 101
Substitution ofcomplaint orinformation (Bar2002)..................... ......................
..................
104
Distinction between substitution and amendment
(Bar 1994).......................
......................
......................
.......................
......................
........... 104

Chapter III
PROSECUTION OF CIVIL ACTION (RULE 111)

Implied institution of the civil action with the


criminal action............................................
.......................
......................
......................
............... 107
Purposes of the criminal and civil actions ................................................................................. 108
Judgment of conviction includes a judgment on the
civil liability .....................
.....................
.......................
.......................
......................
...................... 109
Who the real parties in interest are in the civil aspect
of the case......................
.....................
.......................
.......................
......................
...................... 109
Rule applicable .......................
......................
......................
.......................
......................
..............
109
When a civil action may proceed independently; independent civil actions and quasi-delicts
(Bar 2005).......................
.....................
.......................
.......................
......................
...................... 109
Consequences of the independent character of actions
under Articles32,33, 34and 2176of the Civil Code .............. ........
.........
........
........
........
........
.... Ill
When thereis no implied nstitution
i ofthe civil action .....................
........
.........
........
........
.... 112
Reservation of the civil action ..................................................................................................... 113
No reservation of the civil action in Batas
Pambansa Big. 22(Bar 2001;2002) ...................................... .......................
......................
....... 113

xiii
When the separate civil action is suspended ............................................................................ 114
Consolidation ofthe civilaction with the criminalaction ........... .........
........
........
........
........
.... 115
Suspension ofthe periodof prescription .......................................
...............................
...........
116
When no reservation is required; when civil
actionis not suspended.................................
.......................
......................
...................... 116
Counterclaim, cross-claim, third-party claim in a
criminalaction.....................
.......................
.......................
......................
.......................
... 117
Rules on filing fees ......................................................................................................................... 118
Effect of death of the accused on the civil action ...................................................................... 118
Novation:extinguishment of criminalliability........ ........
................
.........
................
........
........
. 120
Effect of acquittal or the extinction of the penal
actionon the civil actionor civil liability ..................... ......................
.......................
.. 120
Effect of payment of the civil liability .......................................................................................... 124
Effect of judgment in the civil case absolving
the defendant ......................
.......................
.......................
......................
.......................
... 124
Subsidiary liability ofemployer ......................
......................
......................
.......................
...........
125
Concept of prejudic
a ial question (Bar 1999) .....................
......................
.......................
........125
Reason for the principle ................................................................................................................ 126
Requisites for aprejudicial question (Bar 1999) ....................
......................
...................... ....... 126
Effect of the existence of a prejudicial question; suspension of the criminal action
(Bar 1995;1999;2010)........ .......................
.......................
......................
................... 128
Suspension does not includedismissal......... ......................
.......................
......................
..... 129
Where to file the petition for suspension .................................................................................. 129
Case illustrations.......................
.......................
......................
.......................
......................
...........
130

Chapter IV PRELIMINARY INVESTIGATION


Nature of preliminary investigation; purpose
(Bar 1985;1986;1991;1998;2004).................... .......................
......................
............... 143
Nature ofthe rightto a preliminaryinvestigation .........
........
........
........
........
.........
........
........
.. 145
Rightto a preliminaryinvestigation; waivable........ ........
........
........
.........
........
........
........
........
. 150
Preliminary investigation vs. preliminary examination
(preliminary inquiry) .......................
......................
.......................
......................
............... 150
Probable cause in preliminary investigation.............................................................................. 150
Kinds of determination of probable cause ................................................................................ 152
Cases requiring a preliminary investigation; when not
required(Bar 2004)............................................
......................
......................
................... 154
Procedure for cases not requiring a preliminary
investigation ......................
......................
.......................
.......................
......................
....... 155
Direct filing with the prosecutor .................................................................................................. 155
Direct filing with the Municipal Trial Court ................................................................................ 156

xiv
When preliminary investigation is not required even if the offense is one
which normally requires
a preliminary investigation .......................
.......................
......................
......................
............... 157
Person arrested lawfully without a warrant may ask
for a preliminary investigation .....................
......................
.......................
......................
........... 158
Bail for a person lawfully arrested during the
preliminary investigation...............
......................
.......................
......................
.......................
... 159
Questioningthe absenceof a preliminaryinvestigation ....... ........
........
.........
........
........
........
........
..... 160
Absence of preliminary investigation; effect on
jurisdiction of the court ............................................................................................................... 162
Absence of preliminary investigation; not a ground
for motionto quash....................... ............................................................................................. 162
Inquest proceedings.................................................................................................................................. 162
Possible options of the inquest prosecutor ........................................................................................... 163
The inquest must pertain to the offense for which
the arrestwas made ...................... ............................................................................................. 164
Who may conduct preliminary investigation and determine
existence of probablecause...... ................................................................................................. 168
The procedure for preliminary investigation must
be strictly followed ...................................................................................................................... 171
Initial steps in preliminary investigation; filing of the
complain t for preliminary investigation .................... ............................................................... 417
Dismissalof the complaint orissuanceof a subpoena.... ......... ... ........ ................................................ 175
Filing of counter-affidavit by the respondent; no motion
to dismiss .......................
............................................................................................................... 176
Action to be taken if the respondent does not submit
his counter- affidavit .......................
............................................................................................. 176
Clarificatory hearing if necessary; no right of cross
examination .....................
..................................... ...................... ......................
....................... ... 177
Determination by the investigating officer............................................................................................ 177
Discretion of prosecutor in filing of a criminal
complain t or informat ion (Bar1999)..................... ................................................................... 177
Resolution of investigating prosecutor; certification
of preliminary investigation ..................... .................................................................................. 178
Effect of the absence of the required certification
(Bar 1998).......................
............................................................................................................... 179
Forwarding of the records of the case for action; need
for approval before filing ordismissal .................................. .................................................... 179
Rule when recommendation for dismissalis disapproved........ ........................................................ 179
Motion for reconsideration ..................................................................................................................... 180
Appeals to the Secretary of Justice; filing a petition
for review .......................
............................................................................................................... 180
Rules of Court provisions when resolution is reversed
or modified by the Secretary of Justice ..................... ............................................................... 183

XXV
Power of the Secretary of Justice to reverse
resolutions of prosecutors .......................................................................................................... 183
Assailing the resolution of the Secretary of Justice;
petition for review under Rule 43 not allowed;
certiorariunder Rule 65 .................................................................................... 184
Petition for
Appeal tothe Office of
the President
....................
.......................
......................
.......................
............187
Appeals underRule 43and Rule 45......................
.......................
......................
.......................
............189

Records supporting the information or complaint


filed in court .................................................................................................................................. 189
Action of the judge upon the filing of the complaint
or information .............................................................................................................................. 189
When warrant of arrest is not necessary ................................................................................ 191'
Withdrawal of the information already filed in court
(Bar 1990; 2003) ........................................................................................................................... 192
Some judicial pronouncements on preliminary
investigation ................................................................................................................................. 196

Chapter V

ARREST, SEARCH AND SEIZURE

I. ARREST (RULE 113)


Arrest;how arrestmade.....................
......................
......................
.......................
........... 201
Requisitesfor the issuanceof a warrantof arrest........
.........
........
........
........
........
....... 202
Preliminary inquiry (examination) versus
preliminary investigation ....................
.......................
......................
..................... 208
Method of arrest with a warrant; warrant need
not be in possession of the officer ....................
......................
.......................
...... 209
No unnecessary violence ....................
......................
......................
.......................
.......... 210
Authorit
y to summonassistance.....................
......................
......................
................... 210
When personto be arrestedis insidea building........
........
........
........
.........
........
........
.. 210
When a warrantless arrest is lawful
(Bar 1988;1989;1996;1997;2000;2004;2010)......................
.......................
.. 211
Who may make warrantless arrest; duty of officer;
citizen's arrest.....................
.......................
......................
......................
.................. 212
in flagrante
The basis of the delicto
exception;
requisites ....................
.......................
.......................
......................
.......................
.. 213
Existence of an overt act of a crime in the presence
of the personmakingthe arrest....................
......................
.......................
.......... 214
The hot pursuitexception(Bar 1997;2004)......................
......................
..................... 220
Methodof arrestwithout a warrant......................
......................
.......................
.......... 222
Time of makingan arrest....................
......................
......................
.......................
.......... 223
Rightsof a personarrested (R.A.7438)......................
......................
.......................
...... 223

xvi
Custodialinvestigation; expandedconcept....... .........
........
........
........
........
.........
........
. 224
Penalties underR.A. 7438....................... ......................
.......................
......................
....... 224
Effect of an illegal arrest on jurisdiction
of the court......................
......................
.......................
.......................
.................... 224
Effect of admission to bail on objections to an
illegal arrest......................
......................
.......................
.......................
.................... 225
Waiver of the illegality of the arrest; effect of
illegal arrest(Bar 2000;2001)...................... .......................
......................
............. 225
Personsnot subject to arrest...................... ......................
......................
.......................
.. 227

II. SEARCHES AND SEIZURES (RULE 126)


Natureof searchwarrant(Bar 1994)..... ......................
.......................
......................
...... 228
The Constitutionalprovision.............................................
......................
.......................
.. 229
Arrestdistinguished from searchand seizure........ .........
........
........
........
........
.........
..... 230
Definition of a searchwarrantunderthe Rules..................... ......................
................. 231
Application for a searchwarrant; where to file ..................... ......................
.................. 231
Search warrants involving heinous crimes
and others....................
.......................
......................
.......................
......................
.. 231
Ex parteapplicati on for a searchwarrant...................... ......................
...................... 233
Propertysubjectof a searchwarrant....................... ......................
......................
.......... 233
Requisitesfor the issuanceof a searchwarrant......... ........
........
........
........
.........
........
. 234
Probablecause in searchwarrants ....................... .......................
......................
............. 235
Probable cause to arrest and probable cause
to search.......................
.......................
......................
.......................
......................
.. 238
How the examinationshall be conductedby the judge... 239
Particul
ar descriptionof placeor person....................
.......................
......................
...... 241

Particular description of the items to be


seized; general warrants(Bar 2005)...................... ......................
.......................
.. 245
Ownership of propertyseized not required............... .......................
......................
...... 251
Extentof the search.....................
.......................
.......................
......................
................. 252
Searchof thirdpersonsnot namedin the warrant...................... ......................
.......... 253
Issuanceand form of the searchwarrant................... .......................
......................
...... 253
Durationof the validity of a search warrant...................... ......................
..................... 254
Time of makingthe search......................
......................
.......................
......................
....... 254
Mannerof makingthe search.................... ......................
......................
.......................
.. 254
Rule if the officer is refused admittance; "knock
and announcerule".......................
......................
.......................
......................
...... 255
Duties of the officer after the search and seizure;
delivery and inventory ......................
......................
......................
.......................
.. 256
Duty of the judge;returnand otherproceedi ngs...... .......................
......................
...... 256
Duty of the custodian of the log book............................................
......................
.......... 257
Objection to issuanceor service of a warrant.................... ......................
..................... 257
Where to file a motion to quash a search warrant
or to suppress evidence ....................
......................
......................
.......................
.. 258

xvii
Who may assailthe issuanceof a searchwarrant........ ................
........
......... ........
...... 258
certiorarifor unwarranted quashal
Petition for
of a searchwarrant......................
.......................
......................
.......................
....... 259
Exceptions to the search warrant requirement
(Bar 1988;1995;1996;1997;2008)....... ......................
......................
................... 260
Searchincidentto a lawfularrest(Bar 2003).................... ......................
..................... 262
Parameters of a search incident to a lawful arrest;
immediate possession and controlrule ..................... ......................
................... 263
Searches of movingvehicles ............................................
......................
.......................
... 270
Checkpoints......................
......................
.......................
.......................
......................
....... 271
Buy bust operations;warrantnot needed(Bar2003)......... ........
........
................
........ 273
Entrapme nt and instigation......................
.......................
......................
.......................
... 274
Applicable tests in a buy-bust operation;
adoptionof the 'objective test'..................... ......................
.......................
........... 275
Effect of absence of prior surveillance before a
buy-bust operatio n ......................
.......................
......................
.......................
....... 277
Effectof absenceof recordin policeblotter...................... ......................
...................... 278
Plainview doctrine(Bar 2007; 2008)...................... ......................
.......................
........... 278
The 'inadvertence' requirement under the plain
view doctrine.....................
.......................
......................
......................
................... 283
Othercases....................
.......................
......................
.......................
......................
........... 284
Terry searches or stop and frisk; history of the
doctrine(Bar 1995;2003)....................... ......................
......................
................... 290
Summaryof the Terry doctrine.................... .......................
......................
...................... 293
Terry search vs. a search incident to a
lawfularrest.......................
.......................
......................
......................
................... 296

Bond to ensurethe returnof the seizeditems........ ........


.........
........
........
........
........
.... 297
Consente d Searches............
.......................
.......................
......................
.......................
... 298
Effect of an illegal search and seizure; fruit
of the poisonous tree doctrine(Bar 2005)..................... ......................
............... 298
Civil damages; criminal liability .....................
.......................
......................
...................... 300
Authority of the Executive Judge and Vice
Executive Judge re search warrants in Manila
and QuezonCity....................
......................
.......................
......................
............... 300

Chapter VI BAIL (RULE 114)

Meaning, natureand purposeof bail (Bar 1998)....... ......................


......................
.................... 302
Constitutionalbasis of the right to bail.................... .......................
......................
...................... 304
Bail in the military .....................
.......... ......................
.......................
......................
......................
. 306
Bail in extradition proceedi ngs ......................
......................
......................
.......................
..................... 306
Exceptionto the "no bail rule"in extraditionproceedings........ .........
........
........
........
........
..... 308

xviii
Purganan case re-examined...................
.......................
.......................
......................
...................
309
Bail indeportation proceedings .....................
.......................
......................
......................
............
310
Who furnishes the bail ................................................................................................................... 312
Obligation and right of the bondsman; arrest
withouta warrant......................
.......................
.......................
......................
................... 312
The applicant for bail must be in custody .................................................................................... 313
Bail to guaranteeappearanceof witnesses(Bar 1999) ....... ........
........
.........
........
........
........
..... 315
Bail for those not yet charged ....................................................................................................... 315
Effects of failure to appear at the trial ......................................................................................... 316
Court cannot require arraignment before the
grantof bail....................
......................
.......................
......................
......................
............ 317
Forms of bail (Bar 1999) ................................................................................................................. 320
Guidelines in fixing the amount of bail (Bar 1999) .................................................................... 323
Duration of thebail....................
......................
.......................
......................
......................
............
324
No releaseor transferof personin custody;exceptions ....... ........
........
........
........
.........
........
...325
When bail is not required .............................................................................................................. 325
When bail is not allowed ............................................................................................................... 327
When bail is a matter of right (Bar 1999; 2006; 2008) ............................................................... 328
Remedy when bail is denied ........................................................................................................ 329
When bail is a matter of discretion
(Bar 1999;2006;2008)....................... .......................
......................
......................
............ 329
Where application for bail is to be filed when bail is a matter of discretion
and after conviction by the
Regional Trial Court....................
.......................
.......................
......................
................... 331
When application for bail after conviction by the RTC
shallbe denied.....................
.......................
......................
.......................
......................
.... 332

Bail pending appeal where penalty imposed exceeds


six years......................
......................
.......................
.......................
......................
............... 333
Hearing of application for bail in offenses punishable reclusion
by death, perpetua, or life
imprisonment;
burdenof proofin bail applicat ion ......................
.......................
......................
............... 334
Duties of the trial judge in a petition for bail in offenses punishable by
reclusion perpetua, life imprisonment
or death......................
......................
.......................
.......................
......................
............... 337
Evidence in bail hearing are automatically reproduced
at the trial.......................
......................
.......................
......................
......................
............ 339
Capital offenses ...............................................................................................................................339
Effect of Republic Act No. 9346 on the graduation
of penalties ....................
......................
.......................
......................
......................
............ 339
Where application or petition for bail may be
filed(Bar 2002).....................
.......................
......................
.......................
......................
.... 341
Increase or reduction of bail ......................................................................................................... 343
Bail for accusedsrcinallyreleasedwithoutbail ......... ........
........
........
........
.........
........
........
......343

xix
Forfeiture of bail .......................
......................
......................
.......................
......................
............ 343
Cancellationof the bail;remedy ........................................
.......................
......................
............ 344
Application for or admission to bail not a bar to
objections on illegal arrest, lackof or irregularpreliminary investigation........... .........
....... 345

Chapter VII RIGHTS OF THE ACCUSED (RULE 115)


Rights of the accused at the trial

(Bar 1992;1996;1998;2004)...................... .......................


......................
.......................
. 347
Presumptionof innocence(Bar 2005)....... .........
........
........
........
........
........
.........
........
........
....... 34
Primafaciepresumptionsof guilt......... ........
........
........
........
........
.........
........
........
........
........
...... 34
Proofbeyondreasonabledoubt........ ........
........
.................
................
........
........
.................
........ 35
Prosecutionmust rest on its own merits....... .........
........
........
........
........
........
.........
........
........... 35
Effectof failureto identifythe perpetrator........ ........
........
........
........
........
.........
........
........
....... 35
Failure to comply with post-seizure procedures
set by law ......................
......................
......................
.......................
......................
............. 357
The equipoiserule................
........
........
........
........
........
.........
........
........
........
........
.........
........
........ 35
Right to be informed of the nature and ause c of accusation.... 360 Right to counsel of the accused
and of persons arrested, detained or under custodial investigation;
RepublicAct No. 7438 (Bar 1990;1991;1998;2002)........ .........
........
........
........
........
.. 368
Meaningof custodialinvestigation; extendedmeaning....... ........
.........
........
................
........
.. 36
Rights of persons under custodial investigation;
custodial investigation report.....................
.......................
......................
.......................
. 369
Right to choose a counsel is not plenary; right
may be waived................
.......................
......................
.......................
......................
......... 372
Competentand independentcounsel....... .........
........
........
........
........
........
.........
........
.............. 37
Rightto counselin administrative cases.................
........
........
........
........
........
.........
........
........
... 37
Extrajudicial confessions; rights of persons under
custodial investigation (Bar 2006)......................
......................
......................
................. 377
Right to speedy trial; speedy disposition of cases
(Bar 1996;2002;2007)......................
......................
.......................
......................
............ 381
When rightto speedydispositionof casesis violated......... ........
........
........
.................
........
.... 38
Purpose of time limits set by law or the rules;
principl
e of speedytrial is a relative term .................... ......................
.......................
..... 388
Remedyfor a violationof the rightto speedytrial........ ........
........
........
.........
........
........
........
... 39
Factorsfor grantingcontinuance........ ........
.........
........
........
........
........
.........
................
........
....... 39
Guidelines to determine violation of the right to speedy trial
and speedydispositionof cases;balancingtest ........ ........
.........
........
........
........
........
.. 391
Approachesto speedytrial.......
.........
........
........
........
........
........
.........
........
........
........
........
........
.. 39

XXV
The privilege against self-incrimination
(Bar 1996;1998;2004;2005)...................... .......................
......................
.......................
. 396
The privilege applies only to naturalpersons..........................................
......................
............. 399
The privilege protects a person from testimonial
compulsionor evidenceof a communicative nature....... .........
........
........
........
........
.. 400
Forcere-enactments.......................
.......................
......................
.......................
......................
..... 405
Meaningof compulsion......................
......................
.......................
.......................
......................
. 406
Writingexemplars or samples......................
.......................
......................
......................
............. 406
Questionswhichthe witnessmay refuseto answer........ ................
........
.........
........
........
....... 410
Privilege extends to lawyers advising a witness
to invokethe privilege ......................
.......................
......................
......................
............. 411
Persons who are mere custodians of documents
cannotclaimthe privilege .................... ......................
.......................
......................
......... 412
Proceedingsin whichthe privilegemay be asserted........ ................
........
.........
........
........
....... 413
Distinctions between the claim of the privilege by an
accused and by a mere witness ..................... .......................
......................
.................... 414
Waiverof the privilege ....................
.......................
......................
.......................
......................
..... 416
The privilege will not apply when witness is given
immunity from prosecut ion ....................
......................
......................
.......................
..... 416
Immunitystatutes; examples ....................... .......................
......................
......................
............. 418
The right to defendhimself; rightto be heard..................... .......................
......................
......... 421
The right to testify as a witness .....................
.......................
......................
......................
............. 422
The right to confront and cross-examine the witnesses
against him .......................
......................
......................
.......................
......................
......... 423
Rightto use testimony of a deceased witness ..................... .......................
......................
......... 425
Rightto compulsory process..................... .......................
................ ....................
......................
. 425

Rightto appeal......................
......................
.......................
.......................
......................
................ 426
Chapter VIII ARRAIGNMENT AND PLEA (RULE 116)
A. BASIC CONCEPTS
Meaningand importanc
e of arraignment (Bar 2007)......................
......................
..... 428
Duty of the courtbeforearraignment .....................
.......................
......................
......... 429
Optionsof the accusedbeforearraignmentand plea........ ........
........
........
.........
........ 429
Plea made beforea courtwith no jurisdiction.................... ......................
.................... 432
Arraignment under an amended information;
substitutedinformation .......................
.......................
......................
..................... 432

B. HOW ARRAIGNMENT AND PLEA ARE MADE


Wherearraignmentis to be made ...........................................
......................
................. 433
How arraignment is made .......................
......................
......................
.......................
...... 433
When arraignment is to be made....... ......................
.......................
......................
.......... 433

xxi
Arraignment after submission of the case
for decision ......................
.......................
......................
.......................
.................... 434
Recordof arraignment..................... ......................
.......................
......................
.............. 436
Presence of the accused ......................
......................
......................
.......................
.......... 436
Presence of the offendedparty..................... .......................
......................
..................... 436
When a plea of'not guilty' shall be entered
(Bar 1992;1993;1996)....... .......................
......................
......................
................. 436
Plea of guilty is a judicial confession; effect on
aggravating circumstances...................... ......................
......................
................. 439
Exception to the admission of aggravating
circumstances.....................
.......................
............................
......................
......... 440
Plea of guilty to a lesser offense; plea bargaining
(Bar 1995;2002)...........................................
.......................
......................
.............. 440
Requisitesfor a plea of guiltyto a lesseroffense........ ........
........
........
.........
................
. 441
Plea of guilty to a lesser offense after arraignment;
plea bargaining duringthe trialproper..................... ......................
.................... 442
No need for amendmentof information/complaint..... ........
........
........
.........
............. 442
When plea of guilty to a lesser offense is
not mitigating .....................
.......................
......................
......................
................. 443
Plea of guilty to a capitaloffense (Bar 1995)....................... ......................
..................... 443
Meaningof "searching inquiry".................... .......................
......................
..................... 445
Plea of guilty to a non-capital offense...................... ......................
.......................
.......... 448
Improvident plea of guilty.............................................
......................
.......................
...... 448
Productionor inspectionof materialevidence........ ........
........
.........
........
........
........
.... 449

Chapter IX MOTION TO QUASH (RULE 117)


Time for filing the motion to quash ........................................................................................... 451
Form and contents of the motion to quash ............................................................................. 451
Motion to quash is not a demurrer to evidence;
distinctions......................
.......................
......................
.......................
......................
....................
451
Court shall consider only those grounds stated
in the motion......................
......................
.......................
.......................
......................
................ 453
Motion to quash; grounds formotion a to quash (Bar 1987; 1990; 1991; 1992; 1993; 1994; 1995;
1996; 1998; 1999; 2000; 2002; 2003; 2004; 2005;
2009; 2010) ................................................................................................................................... 453
Execution of an affidavit of desistance is not a ground
for a motion to quash ................................................................................................................. 454
Absence of probable cause notground a to quash
an information ............................................................................................................................. 455
Matters of defense are not grounds for a motion
to quash......................................................................................................................................... 455

xxii
Absence of a preliminary investigation is not a ground
to quash aninformation....................... .......................
......................
......................
......... 455
Test inappreciating amotion toquash....... .......................
.......................
......................
......................
456
Effect of failure to assert any ground of a motion
to quash.....................
.....................
.......................
.......................
......................
.......................
... 457
Groundsnot waived ....................
......................
.......................
......................
......................
................... 458
Denial ofa motion toquash ........................................
.......................
.......................
......................
....... 458
When court shall order the amendment of the
informat ion or complaint ..................... .......................
......................
......................
......... 459
Order sustaining a motion to quash is not a bar
to another prosecution; except ions (Bar1994)...................... ......................
.......................
... 459
Doublejeopardy.................... .....................
.......................
.......................
......................
.......................
... 460
Effects of double jeopardy; on criminal
and civil aspects .........................................
......................
.......................
......................
............... 462
Doublejeopardy ; requisites......................
.......................
.......................
......................
.......................
... 465
Courtmust have competent jurisdiction....................... .......................
......................
.......................
... 466
Curing an erroneous acquittal; grave abuse discretion of
amounting to lack jurisdiction..................... ......................
......................
.......................
........... 469
Preliminary investigation; double jeopardy
not applicable .......................
......................
......................
.......................
......................
............... 474
Res judicataand double jeopardy; res judicata
in prison grey(Bar 2010).;..................... .......................
......................
......................
................... 547
Administrative cases;double jeopardy not applicable........ ........
.........................
................
........
..... 475
Valid complaint or information 2002; (Bar 2004) .......................
......................
......................
477
Accused should have pleaded to the charge (should
have beenarraigne d) (Bar 2002;2003)..................... ......................
......................
...................
479
The accused has been convicted or acquitted, or the case against him dismissed or terminated
without
his express consent.................... ......................
.......................
.......................
......................
....... 482
Dismissal or termination must be without the express
consent ofthe accused..................... .......................
......................
.......................
...................... 485
Dismissals equivalent to acquittal even with the consent
of the accused;speedytrial;demurrer toevidence ......... .........................
................
........
..... 487
Doublejeopardy in quasioffenses ...................... ......................
.......................
......................
............... 491
When double jeopardy shall not apply despite a prior
conviction (Bar 2005).................... .......................
.......................
......................
.......................
... 495
Meaning of same offense; when not the same
(Bar 1993;1994)...................... .......................
......................
.......................
......................
........... 496
Provisionaldismissal; requisites (Bar 2003)....................... .......................
......................
......................
503
Time bar rule; when provisional dismissal becomes
permanen t ....................
......................
.......................
.......................
......................
......................
506
Effect ofPeople v.Lacson....................... ......................
.......................
.......................
.. ..........................7 50
Withdrawal of information distinguished from a
motionto dismiss ....................... ......................
.......................
.......................
......................
....... 510

xxiii
Chapter X
PRE-TRIAL, TRIAL AND DEMURRER TO EVIDENCE (RULES 118-119)
A. PRE-TRIAL (RULE 118) (Bar
1986; 1989; 2004; 2008)
Courtsin whichpre-trial is mandatory...................... ......................
.......................
....... 511
Matters to be considered during the pre-trial;
purposes....................
.......................
.......................
......................
.......................
... 511
When pre-trial shall be held.....................
.......................
......................
.......................
.... 512

Non-appearance in the pre-trial conference;


conseque nces.......................
......................
.......................
......................
................ 512
Duty of the BranchClerk of Court...................... .......................
......................
................ 513
Recording of the minutes..................... .......................
......................
.......................
........ 513
Duty of the judgebeforethe pre-trialconference........ ........
........
.................
.............. 513
Duty of the judge when plea bargaining is
agreed upon; prosecution and offended party
agree to the plea ......................
......................
......................
.......................
........... 513
Duty of the judgewhen plea bargainingfails........ ........
........
........
.................
............... 514
Askingquestionsduringthe pre-trial........ .........
........
........
........
.................
................
... 514
Pre-trialagreements;signingof admissionsmade ........ .........
........
................
........
..... 514
Pre-trial order......................
.......................
......... .......................
......................
................ 515
Pre-trial in a civil case vs. pre-trial in a
criminal case .....................
.......................
......................
......................
.................... 515
Effectof pre-trial order..............................
.......................
......................
.......................
.... 516
Judicialdisputeresolution(JDR);purposes........ ........
........
.........
................
................
.. 517
Stages in the judicial proceeding with JDR;
confidentiality.......................
......................
.......................
......................
................ 517
Cases subjectto mediation for JDR .................... .......................
......................
................ 518
Salientfeaturesof the suggestedJDR process........ ........
.........
........
........................
..... 519
Court-annexedmediation guidelines.................... ......................
.......................
............ 521
Discovery proceduresin criminal cases..................... ......................
.......................
........ 524
B. TRIAL (RULE 119)
When trialshall commence .....................
.......................
......................
.......................
............. 526
Summaryof periods......................
......................
.......................
......................
.......................
.. 527
Time to prepare fortrial ......................................
.......................
......................
.......................
.. 527
Effect of not bringing the accused to trial within
the prescribed period ....................................................................................................... 528
Delays to be excluded from computing the period for
commencement of the trial;
some examples ................................................................................................................. 528
When delay or suspension of trial is justified
by reason of the absence of a witness ........................................................................... 529

xxiv
Continuo us trial....................
......................
.......................
......................
......................
..... 530
Trialperiod.....................
.....................
.......................
.......................
......................
............ 530
Postpone ment or continuance ....................... ......................
......................
.................... 531
Factors to be considered for granting
continua nces or postpone ments...........................................
......................
........ 531
Prohibit
ed groundsfor a continuance....................... .......................
......................
........ 531
Conditional examination of witnesses even
beforetrial......................
......................
......................
.......................
......................
. 531
How to secure appearance of a material witness
(Bar 1994;1999)...................... .......................
.......................
......................
............ 532
Discharge of accused to be a state witness;
requisites (Bar 1988;1990;1994;2006)...... .......................
......................
............ 533
Evidence adduced during the discharge
hearing....................
......................
.......................
.......................
......................
........ 534
Effect of discharge of an accused to be a
state witness; acquittal........... .......................
.......................
......................
............ 534
Mistakein chargingthe properoffense .................... .......................
......................
........ 534
Orderof trial.....................
......................
.......................
.......................
......................
........ 535
Modification of the order of trial; reverse trial
(Bar 2007).......................
......................
......................
.......................
......................
. 535
Reopening of the proceedings......................... ......................
......................
.................... 535
Trialin absentia (Bar 1998)....................... .......................
......................
......................
..... 536
Instances when the presence of the accused
is required .......................
......................
......................
.......................
......................
. 537
Some rules on witness' credibility ...................... .......................
......................
................ 538
Comments and questions of the judge during
the trial....................
......................
.......................
.......................
......................
........ 538
Corpus delicti in criminal cases; murder
or homicide.......................
.......................
......................
.......................
................... 539
Lack of formalofferof evidence duringthe trial..................... ......................
................ 540
C. DEMURRER TO EVIDENCE (RULE 119)
Demurrer to evidence (Bar 1991; 1994; 1996; 2001;
2003; 2004;2007; 2009) .....................
......................
.......................
......................
........... 540
Demurrer to evidence with leave of court
(Bar 2003).......................
......................
......................
.......................
......................
........... 541
Demurrer toevidence without leave of court....................
......................
.......................
....... 542
Not every motion to dismiss is a demurrer
to evidence....................
.......................
......................
.......................
......................
........... 543
Granting ofdemurrer isan acquittal ....................................
.......................
......................
....... 544
Demurrer to evidence in a civil case vs. demurrer
to evidence ina criminal case (Bar 2007)...............................
......................
.................. 545

XXV
Chapter XI
JUDGMENT, REMEDIES AFTER JUDGMENT OF CONVICTION
AND PROVISIONAL REMEDIES
I. JUDGMENT (RULE 120)
Meaningof judgment ....................
......................
.......................
......................
............... 546
Requisites of a judgment ......................
.......................
......................
.......................
....... 546
Contents of a judgment of conviction; contents
of judgment of acquitta l ....................
.......................
......................
......................
. 548
Rule when there are two or more offenses in a single information or
complaint (duplicitous
complain t or information)...........................................
......................
................... 549
Judgment rendered by judge who did not hear
the case......................
.......................
.......................
......................
.......................
.... 550
Variance doctrine; variance between the allegation
and proof(Bar 1993;2004).................... ......................
......................
................... 550
When an offenseincludesor is includedin another....... .................
........
................
.... 551
Variancein the mode of the commissionof the offense... 551
Promulgationof judgment (Bar 1997)....................... ......................
.......................
....... 552
How accusedis to be notifiedof the promulgation ........
.................
........
................
.... 552
Rule if the accused fails to appear in the
promulgationof judgment .................... ......................
......................
.................... 553
Modificationof judgment (Bar 1989).................... ......................
.......................
........... 554
When judgment becomesfinal....................... ......................
......................
................... 554
Entry of judgment .......................
.......................
......................
......................
.. . ............... 554
II. NEW TRIAL OR RECONSIDERATION (RULE 121)

Filing a motion for new trial or a motion for


reconsideration ....................
......................
.......................
......................
................ 554
Groundsfor a new trial ......................
......................
......................
.......................
........... 555
Requisitesfor newly discoveredevidence......... ........
........
........
........
.................
........
.. 555
Groundsfor reconsideration of the judgment.................... ......................
................... 556
Form of the motions; notice..................... .......................
......................
.......................
... 556
Noticeof the motion............................................
.......................
......................
............... 556
When hearingof the motionis required ....................... ......................
.......................
... 557
Effectsof grantinga new trialor reconsideration .......
.........
........
................
........
........ 557
The Neypes rule ......................
.......................
......................
......................
................... 557
III. APPEALS (RULES 122,124,125) (Bar 1991; 1992; 1993; 1998)
Appeal nota natural right.....................
.......................
......................
.......................
................. 558
Who may appeal.....................
.......................
......................
.......................
......................
.......... 559
Subject matter for
review on appeal ................................
.......................
......................
.......... 560

xxvi
Changeof theoryon appeal..................... .......................
......................
.......................
... 561
Factualfindings;credibilityof witnesses........ .........
........
........
........................................ 561
Whereto appeal......................
......................
.......................
............................................. 563
How to appeal......................
......................
.......................
.......................
.......................... 564
When appealis to be taken...................... .......................
......................
........................... 565
Service of noticeof appeal....................
.......................
.......................
.............................. 566
Transmissionof the papersto appellatecourt(RTC)......... ........
......................... ........
.. 566
Withdrawal of appeal....................
.......................
......................
...................................... 566
Appealnot mootedby accused'sreleaseon parole....... .........
..................................... 567
Effectof appealby any of severalaccused(Bar 1998)......... ........................................ 567
Appealfrom the civil aspect............................................
......................
.......................
.... 568
Periodto apply for probation..............................................
......................
....................... 568
Stay of execution......................
......................
.......................
............................................ 569
Powerof the Courtof Appealsto receiveevidence....... .........
..................................... 569
Dismissalof appealby the Courtof Appeals........ ........
.........
........................................ 569
Groundfor reversalof judgmentor its modification ........
........
......................... ........
... 570
Reviewof decisionsof the Courtof Appeals........ ........
.................
........................ ......... 570
Applicability of the rules on appeal in the
Courtof Appealsto the SupremeCourt..................... ......................................... 570
Rule if the opinion of the Supreme Court
en bancis equallydivided ...................... ......................
...................................... 570
When preliminaryattachmentis available....... .........
................
.................................... 572

IV. PROVISIONAL REMEDIES IN CRIMINAL CASES


Availabilityof provisionalremedies.........
........
........
........
........
........
.........
........
........
...... 571

Synopsis of Selected Cases......................


......................
......................
.......................
................... 574
Criminal Procedure Aspect of the Rules of Procedure
in Environmental Cases......................
......................
.......................
.......................
.......... 600
Case Index ......................
......................
.......................
.......................
......................
......................
. 609

xxvii
CHAPTER I

PRELIMINARY CONSIDERATIONS

I. BASIC CONCEPTS

Concept of criminal procedure


1. Criminal procedure treats of the series of processes by which the
criminal laws are enforced and by which the State prosecutes persons who
violate the penal laws. In the clear language of the Court, criminal procedure
"regulates the steps by which one who committed a crime is to be punished"
(People v. Lacson, 400 SCRA 267).
While criminal laws define crimes and prescribe punishment for such
crimes, criminal procedure lays down the processes by which an offender is
made to answer for the violation of the criminal laws.
2. Criminal procedure is "a generic term to describe the network of
laws and rules which governs the procedural administration of justice"
(Black's
Law Dictionary, Fifth Edition, 1979).
The procedure starts with the initial
contact of the alleged lawbreaker with the justice machinery including the
investigation of the crime and concludes either with a judgment exonerating
the accused or the final imposition of a penalty against him.
3. The enforcement of the criminal laws of the state inevitably leads
to governmental intrusions into an individual's zones of privacy and how these
intrusions can be reconciled with constitutional and statutory tenets protecting
individual rights is an inescapable theme tackled in criminal procedure. Thus, in
the prosecution for the violation of the penal laws,

l
2 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

criminal procedure has the imposing task of balancing clashing societal


interests primarily between those of the government and those of the
individual. Hence, a common thread among innumerable treatises on the
subject is the tendency to describe criminal procedure in relation to its
ultimate goal of harmonizing the governmental functions of maintaining and
promoting law and order law while at the same time protecting the
constitutional rights of its citizens.

The adversarial or accusatorial system


1. The system of procedure in our jurisdiction is accusatorial or
adversarial. It contemplates two contending parties before the court which
hears them impartially and renders judgment only after trial v.
(Queto
Catolico, 31 SCRA 52).
The system has a two-sided structure consisting of the prosecution and
the defense where each side tries to convince the court that its position is the
correct version of the truth. In this system, the accusation starts with a formal
indictment called in our jurisdiction as a complaint or an information, the
allegations of which must be proven by the government beyond reasonable
doubt. The government and the accused present their evidence before the
court which shall decide either on acquittal or conviction of the accused. In its
decision-making process, that court shall consider no evidence which has not
been formally offered. The court in this system therefore, has a passive role
and relies largely on the evidence presented by both sides to the action in
order to reach a verdict.
2. The adversarial system should be distinguished from the
inquisitorialsystem where the court plays a very active role and is not limited
to the evidence presented before it. The court may utilize evidence gathered
outside the court and a judge or a group of judges under this system actively
participates in the gathering of facts and evidence instead of mere passively
receiving information or evidence from the parties. The judge steers the course
of the proceedings by directing and supervising the gathering of the evidence
and the questioning of the witnesses to the case. The counsels in the
CHAPTER I 3
PRELIMINARY CONSIDERATIONS

inquisitorial system have a less active role than in the adversarial system.

Liberal interpretation of the rules


1. The rules on criminal procedure, being parts of the Rules of Court,
shall be "liberally construed in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and proceeding" (Sec.
6, Rule 1, Rules of Court).
2. In a case, petitioner's former counsel erroneously appealed her
conviction to the Court of Appeals instead of to the Sandiganbayan. Petitioner
pleaded that Section 2 of Rule 50 of the Rules of Court which mandated the
dismissal of cases erroneously appealed to the Court
Appeals
of be relaxed and
the Court 6f Appeals be directed to forward the records of the case to the
Sandiganbayan. The Supreme Court, in granting petitioner's prayer held that
since the appeal involved a criminal case and the possibility of a person being
deprived of liberty due to a procedural lapse is great, a relaxation of the Rules
was warranted. The rules of procedure must be viewed as tools to facilitate the
attainment of justice, such that any rigid and strict application thereof which
results in technicalities tending to frustrate substantial justice must always be
avoided(Cenita M. Cariaga v. People of the Philippines, G.R. No. 180010,
July 30, 2010).

Due process; mandatory


Due process in criminal proceedings is mandatory and indispensable and
cannot be met without the proverbial "law which hears before it condemns
and proceeds upon inquiry and renders judgment only after trial."
(Quotation
from Albert vs. University Publishing House, G.R. No. L-19118, January
30,1965)
Monte v. Savellano, Jr., 287 SCRA 245,enumerates the requirements
of due process in a criminal proceeding,
to wit:
(a) that the court or tribunal trying the case is properly clothed with
judicial power to hear and determine the matter before it;
4 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

(b) that jurisdiction is lawfully acquired by it over the


person of the accused;
(c) that the accused is given opportunity to be heard;
and
(d) that judgment is rendered only upon lawful hearing.

A. Requisites For The Exercise of Criminal


Jurisdiction

Requisites

A reading of jurisprudence and treatises on the matter


discloses the following basic requisites before a court can
acquire jurisdiction over criminal (Cruz
cases v. Court of
Appeals, 388 SCRA 72):
(a) Jurisdiction over the subject matter;
(b) Jurisdiction over the territory; and
(c) Jurisdiction over the person of the accused.

Jurisdiction over the subject matter versus jurisdiction over


the person of the accused
1. Jurisdiction over the subject matter refers to the
authority of the court to hear and determine a particular
criminal case. One case,
Antiporda, Jr. v. Garchitorena, 321
SCRA 551, mandates that the offense is one which the court
is by law authorized to take cognizance of.
2. Jurisdiction over the person of the accused refers to
the authority of the court, not over the subject matter of the
criminal litigation, but over the person charged. This kind of
jurisdiction requires that "the person charged with the offense
must have been brought in to its forum for trial, forcibly by
warrant of arrest or upon his voluntary submission to the
court"(Antiporda v. Garchitorena, 321 SCRA 551; Cruz v.
Court of Appeals, 388 SCRA 72; Cojuangco v. Sandiganbayan,
300 SCRA 367).
CHAPTER I 5
PRELIMINARY CONSIDERATIONS

Jurisdiction over the territory; venue in criminal cases (Bar 1997)


1. This element requires that the offense must have been committed
within the court's territorial jurisdiction
(An- tiporda, Jr. v. Garchitorena, 321
SCRA 551).This fact is to be determined by the facts alleged in the complaint or
information as regards the place where the offense charged was committed
(Fullero v. People, 533 SCRA 97).
In all criminal prosecutions, the action shall be instituted and tried in the
court of the municipality or territory wherein the offense was committed or
where anyone of the essential ingredients took place. Hence, if any one of
these elements is proven to have occurred, let us say, in Pasay City, the proper
court in that city has jurisdiction
(Barrameda v. Court of Appeals, 313 SCRA
477).
2. Venue in criminal cases is an essential element of jurisdiction.
Hence, for jurisdiction to be acquired by a court in a criminal case, the offense
should have been committed or any one of its essential ingredients should have
taken place within the territorial jurisdiction of the court. It is in that court
where the criminal action shall be instituted
(Sec. 15 [a], Rule 110, Rules of
Court; Foz, Jr. v. People, G.R. No. 167764, October 9,2009).
3. It is doctrinal that in criminal cases, venue is an essential element of
jurisdiction, and that the jurisdiction of a court over a criminal case is

determined
the by the be
criminal action allegations
institutedinand
thetried
complaint or information.
in the court The where
of the territory rule that
the
offense was committed or where any of its essential ingredients occurred is a
fundamental principle, the purpose of which is not to compel the defendant to
move to, and appear in, a different court from that of the province where the
crime was committed as it would cause him great inconvenience in looking for
his witnesses and other evidence in another(Campanano,
place Jr. v. Datuin,
536 SCRA 471, October 17, 2007; Bonifacio, et al. v. Regional Trial Court
ofMakati, et al., G.R. No. 184800, May 5, 2010).
6 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

4. Territorial jurisdiction in criminal cases is the territory where the


court has jurisdiction to take cognizance or to try the offense allegedly
committed therein by the accused. Thus, it cannot take jurisdiction over a
person charged with an offense allegedly committed outside of that limited
territory and if the evidence adduced during the trial shows that the offense
was committed somewhere else, the court should dismiss the action for want
of jurisdiction
(Macasaet v. People, 452 SCRA 255; Foz, Jr. v. People, G.R. No.
167764, October 9, 2009). It is doctrinal that in criminal cases, venue is an
essential element of jurisdiction, and that the jurisdiction of a court over a
criminal case is determined by the allegations of the complaint or the
information(Campanano, Jr. v. Datuin, 536 SCRA 471; Macasaet v. People,
452 SCRA 255).
5. The concept of venue in actions in criminal cases, unlike in civil
— for jurisdiction to be acquired in criminal cases, the
cases, is jurisdictional
offense should have been committed or any one of its essential ingredients
should have taken place within the territorial jurisdiction of (Isip
the court
v.
People, 525 SCRA 735). Similarly, it has been held that the RTC of Manila has
no authority to issue a search warrant for offenses committed in(Sony
Cavite
Computer Entertainment, Inc. v. Supergreen, Inc., 518 SCRA 750).

When a court has jurisdiction to try offenses not committed within its
territorial jurisdiction
The rule that the offense must be prosecuted and tried in the place
where the same was committed admits of certain exceptions.
1. Where the offense was committed under the circumstances
enumerated in Art. 2 of the Revised Penal Code, the offense is cognizable
before Philippine courts even if committed outside of the territory of the
Philippines. In this case, the offense shall be cognizable by the court where the
criminal action is first filed
(Sec. 15[d], Rule 110, Rules of Court).
Under Article 2 of the Revised Penal Code, the provisions of the Revised
Penal Code shall be enforced not only within
CHAPTER I 7
PRELIMINARY CONSIDERATIONS

the Philippine Archipelago but also outside of its jurisdiction against offenders
who:
Should commit an offense while on
Philippine
a ship or airship;
Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
Should be liable for acts connected with the introduction into
these Islands of the obligations and securities mentioned above;
While being public officers and employees, should commit an
offense in the exercise of their functions; or
Should commit any of the crimes against national security and the
law of nations.
Included in crimes against national security are the crimes of (i) treason,
(ii) conspiracy and proposal to commit treason, (iii) misprision of treason, (iv)
espionage, (v) inciting to war and giving motives for reprisal, (vi) violation of
neutrality, (vii) correspondence with hostile country, and (viii) flight to enemy's
country(Articles 114-121, Revised Penal Code).
Crimes against the law of nations are piracy and mutiny described under
Article 122 of the Revised Penal Code and qualified piracy under Article 123
thereof.
2. Where the Supreme Court, pursuant to its constitutional powers
orders a change of venue or place of trial to avoid a miscarriage of justice
(Section 5[4J, Article VIII, 1987 Constitution of the Philippines).
3. Where an offense is committed in a train, aircraft, or other public
or private vehicle in the course of its trip, the criminal action need not be
instituted in the actual place where the offense was committed. It may be
instituted and tried in the court of any municipality or territory where said train,
aircraft, or vehicle
passedduring its trip. The crime
8 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

may also be instituted and tried in the place of andarrival (Section


departure
15[b], Rule 110, Rules of Court).
4. Where an offense is committed on board a vessel in the course of
its voyage, the criminal action shall be instituted and tried not necessarily in the
place of the commission of the crime. It may be brought and tried in the court
of the first port of entry, or in the municipality or territory where the vessel
passed during the voyage
(Section 15[c], Rule 110, Rules of Court).
5. Where the case is cognizable by Sandiganbayan,the the
jurisdiction of which depends upon the nature of the offense and the position
of the accused(Subido v. Sandiganbayan, G.R. No. 122641, January 20,
1997), the offense need not be tried in the place where the act was
committed but where the court actually sits in Quezon City.
Under Sec. 2 of R.A. No. 8249
(An Act Further Defining the Jurisdiction
of the Sandiganbayan),when the greater convenience of the accused and of
the witnesses, or other compelling considerations so require, a case srcinating
from one geographical region may be heard in another geographical region.
For this purpose, the presiding justice shall authorize any divisions of the court
to hold sessions at any time and place outside Metro Manila and, where the
interest of justice so requires, outside the territorial boundaries of the
Philippines.
6. Where the offense is written defamation, the criminal action need
not necessarily be filed in the RTC of the province or city where the alleged
libelous article was printed and first published. It may be filed in the province or
city where the offended party held office at the time of the commission of the
offense if he is a public officer, or in the province or city where he actually
resided at the time of the commission of the offense in case the offended party
is a private individual
(Article 360, Revised Penal Code as amended by
Republic Act No. 1289 and Republic Act No. 4363;Bar 1995J.
7. The case ofAgbayani v. Sayo, 89 SCRA 699, restated Article 360
of the Revised Penal Code (written defamation) as follows:
CHAPTER I 9
PRELIMINARY CONSIDERATIONS

(a) Whether the offended party is a public official or a private


person, the criminal action maybe filed in the Court of First Instance (RTC)
of the province or city where the libelous article is printed and first
published.
(b) If the offended party is a private individual, the criminal
action may also be filed in the Court of First Instance (RTC) of the
province where he actually resided at the time of the commission of the
offense.
(c) If the offended party is a public officer whose office is in
Manila at the time of the commission of the offense, the action may be
filed in the Court of First Instance (RTC) of Manila.
(d) If the offended party is a public officer holding office outside
of Manila, the action may be filed in the Court of First Instance (RTC) of
the province or city where he held office at the time of the commission of
the offense(Foz, Jr. v. People, G.R. No. 167764, October 9, 2009).
One recent case held that if the circumstance as to where the libel was
printed and first published is used by the offended party as basis for the venue
in the criminal action, the information must allege with particularity where the
defamatory article was printed and first published, as evidenced or supported
by, for instance, the address of their editorial or business offices in the case of
newspapers, magazines or serial publications. This pre-condition becomes
necessary in order to forestall any inclination to harass.
In a case pertaining to defamatory material appearing on a website on
the internet, the place where the material was first accessed cannot be
equated with "printing and first publication." This interpretation would, said
the Court, "spawn the very ills that the amendment to Art. 360 of the RPC
sought to discourage and prevent. It hardly requires much imagination to see
the chaos that would ensue in situations where the website's author or writer,
a blogger or anyone who posts messages therein could be sued for libel
anywhere in the
10 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Philippines that the private complainant may have allegedly accessed the
offending website. For the Court to hold that the amended information
sufficiently vested jurisdiction in the courts of Makati simply because the
defamatory article was accessed therein would open the floodgates to the libel
suit being filed in all other locations where the x x x website is likewise accessed
or capable of being accessed" (Bonifacio, et al. v. Regiona
l Trial Court o
Makati, et al., G.R. No. 184800, May 5,2010).
Merely alleging that "the newspaper is a daily publication with a
considerable circulation in the City of Iloilo and throughout the region" did not
establish that the said publication was first printed and first published in Iloilo
City(Foz, Jr. v. People, G.R. No. 167764, October 9,2009).
Also, merely alleging that the offended party is a physician and medical
practitioner in a particular place does not clearly and positively indicate that
said person is residing in such place at the time of the commission of the crime.
One who transacts business in a place and spends a considerable time thereat
does not render such person a resident therein
(Foz, Jr. v. People, G.R. No.
167764, October 9,2009).

B. Criminal Jurisdiction Over The Subject Matter


Jurisdiction over the subject matter
1. Generally, jurisdiction is the right to act or the power and authority
— it is a question of law
to hear and determine a cause (Gomez v. Montalban,
548 SCRA 693).The term imports the power and authority to hear and
determine issues of facts and of law, the power to inquire into the facts, to
apply the law and to pronounce the judgment(21 C.J.S., Courts, § 2, 1990).
Specifically, criminal jurisdiction is the authority to hear and try a
particular offense and impose the punishment (Antiporda,
for it Jr. v.
Garchitorena, 321 SCRA 551).
2. Jurisdiction over the subject matter is the power to hear and
determine cases of the general class to which the
CHAPTER I 11
PRELIMINARY CONSIDERATIONS

proceedings in question belongs It is the power to


(Reyes v. Diaz, 73 Phil 484).
deal with the general subject involved in the action, and means not simply
jurisdiction over the particular case then occupying the attention of the court
but jurisdiction of the class of cases to which the particular case (21 belongs
C.J.S., Courts, § 10,1990).

How jurisdiction over the subject matter is conferred


1. Jurisdiction over the subject matter is conferred (Durisol
by law
Philippines, Inc. v. Court of Appeals, G.R. No. 121106, February 20,2000;
Magno v. People, G.R. No. 171542, April 6, 2011). It is the law that confers
jurisdiction and not the rules (Padunan v. DARAB, G.R. No. 132163, January
28, 2003).The rule is that in order to ascertain whether a court has jurisdiction
or not, the provisions of law shall be inquired into v. Sandiganbayan,
(Soller
G.R. Nos. 144261-62, May 9, 2001).
When the law confers jurisdiction, that conferment must be clear. It
cannot be presumed. It must clearly appear from the statute or will not be held
to exist(De Jesus v. Garcia, 19 SCRA554).
2. Jurisdiction cannot be fixed by the will of the parties nor can it be
acquired or diminished by any act of the parties. In determining whether or not
a case lies within or outside the jurisdiction of a court, reference to the
applicable statute on the matter is indispensable
(Tolentino v. Social Security
Commission, 138 SCRA 428; De la Cruz v. Moya, 160 SCRA 838).
3. Jurisdiction over the subject matter in a criminal case cannot be
conferred upon the court by the accused, express waiver or otherwise, since
such jurisdiction is conferred by the sovereign authority which organized the
court, and is given only by law in the manner and form prescribed by law
(Fukuzume v. People, 474 SCRA 570).
4. Since jurisdiction is conferred by law, it is not conferred by mere
administrative policy of any trial court
(Cudia v. Court of Appeals, 284 SCRA
173).
12 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

How jurisdiction over the subject matter is determined


1. While jurisdiction of courts is
conferred by law, jurisdiction over a
criminal case determined
is by the allegations in the complaint or information.
Hence, "(I)n order to determine the jurisdiction of the court in criminal cases,
the complaint or information must be examined for the purpose of
ascertaining whether or not the facts set out therein and the punishment
provided for by law for such acts fall within the jurisdiction of the court in which
the criminal action is filed. If the facts set out in the complaint or information
are sufficient to show that the court has jurisdiction, then that court indeed has
jurisdiction" (Mobilia Products v. Umezawa, G.R. No. 149357, March
4,2005).
2. The jurisdiction of the court over criminal cases is determined by
the allegations of the complaint or information and once it is so shown, the
court may validly take cognizance of the(Macasaet
case v. People, 452 SCRA
It is the averments
255; Foz, Jr. v. People, G.R. No. 167764, October 9, 2009).
in the information which characterize the crime to be prosecuted and the
court before which it must be tried
(Pangilinan v. Court of Appeals, 321 SCRA
51).
3. "The jurisdiction of the court is defined by the Constitution or
statute. The elements of that definition must appear in the complaint or
information so as to ascertain which court has jurisdiction over a case. Hence,
the elementary rule that the jurisdiction of the court is determined by the
allegations in the complaint or information, and not by the evidence presented
by the parties at the trial" It
(Larson v. Executive Secretary, 301 SCRA 298).
was held however, that if the evidence adduced during the trial shows that the
offense was committed somewhere else, the court should dismiss the action
for want ofjurisdict
ion(Macasaet v. People, 452 SCRA 255 as cited in Foz, Jr.
v. People, G.R. No. 167764, October 9, 2009).
Thus, in criminal cases, the court must examine the complaint for the
purpose of ascertaining whether or not the facts set out and the punishment
provided by law for such act,
CHAPTER I 13
PRELIMINARY CONSIDERATIONS

fall within the jurisdiction of the court


(U.S. v. Jimenez, 41 Phil. 1; U.S. v.
Mallari, 24 Phil. 366).
4. In cases cognizable by the
Sandiganbayan, both the nature of the
offense and the position occupied by the accused are conditions
sine qua non

before theSandiganbayan
Sandiganbayan, 312 SCRA can
(Uy v.
77). validly take cognizance of the case
5. In complex crimes, jurisdiction is with the court having jurisdiction
to impose the maximum and most serious penalty imposable on the offense
forming part of the complex crime
(Cuyos v. Garcia, 160 SCRA 302;
Bar 2003;.

Statute applicable to a criminal action


1. It is a hornbook doctrine that jurisdiction to try a criminal action is
determined by the law in force at the time of the institution of the action and
not during the arraignment of the accused
(Palana v. People, 534 SCRA 296,
September 28, 2007).
2. The statute in force at the time of the institution of the action
determines the jurisdiction of the court over the subject matter and not at the
time of its commission even if the penalty that may be imposed at the time of
its commission is less and does not fall under the court's jurisdiction (People v.
Logon, 185 SCRA 442; People v. Magallanes, 249 SCRA 212). Other decisions
have similarly and consistently held that it is well established that the
jurisdiction of a court to try a criminal case is determined by the law in force at
the time of the institution of the action (People v. Cawaling, 293 SCRA 267;
Sogod v. Sandiganbayan, 312 SCRA 77; De la Cruz v. Moya, 160 SCRA 838)
and not at the time of the commission of the offense (People v.
Sandiganbayan, G.R. No. 167304, August 25, 2009; People v.
Sandiganbayan, G.R. No. 169004, September 15, 2010).
3. Where the offense was allegedly committed on or about
December 19,1995 and the filing of the information was on May 21,2004, the
jurisdiction of the Sandiganbayanto try a criminal case is to be determined at
the time of the institu
14 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

tion of the action, not at the time of the commission of the offense. The
applicable law therefore, in the case against the public officer is Presidential
Decree 1606 as amended by Republic Act No. 7975 on May 16,1995 and as
further amended by Republic Act No. 8249 on
February 5,1997 (People v.

San- diganbayan and Victoria Amante, G.R. No. 167304, August 25, 2009).
Use of the imposable penalty
1. In determining whether or not the court has jurisdiction over an
offense, we consider the penalty which may be imposed upon the accused and
not the actual penalty imposed after the(People
trial v. Purisima, L-40902,
February 18,1976; People v. Savellano, L-39951, September 9,1982).
2. The jurisdiction of the court is not determined by what may be
meted out to the offender after trial, or even by the result of the evidence that
would be presented at the trial, but by the extent of the penalty which the law
imposes for the offense, on the basis of the facts alleged in the information or
complaint(People v. Buissan, 105 SCRA 547; People v. Purisima, 69 SCRA
341).

Principle of adherence of jurisdiction or continuing jurisdiction


1. The jurisdiction of the court is referred to as "continuing" in view of
the general principle that once a court has acquired jurisdiction, that
jurisdiction continues until the court has done all that it can do in the exercise
of thatjurisdiction (20 Am. Jur. 2d, Courts, § 147, 1965). The jurisdiction once
vested, cannot be withdrawn or defeated by a subsequent valid amendment
of the information (People v. Chupeco, L-19568, March 31, 1964). It cannot
also be lost by a new law amending the rules of jurisdiction (Rilloraza v.
Arciaga, L-23848, October 31,1967).
For instance, in the court was held
Flores v. Sumaljag, 290 SCRA 568,
not to have lost jurisdiction over the case involving a public official by the mere
fact that the said official
CHAPTER I 15
PRELIMINARY CONSIDERATIONS

ceased to be in office during the pendency of the case. The court retains its
jurisdiction either to pronounce the respondent official innocent of the charges
or declare him guilty thereof.
2. Once a court acquires jurisdiction over a controversy, it shall continue
to exercise such jurisdiction until the final determination of the case and it is
not affected by the subsequent legislation vesting jurisdiction over such
proceedings in another tribunal. A recognized exception to this rule is when the
statute expressly so provides, or is construed to the effect that it is intended to
operate upon actions pending before its enactment. However, when no such
retroactive effect is provided for, statutes altering the jurisdiction of a court
cannot be applied to cases already pending prior to their enactment
(People v.
Cawaling, 293 SCRA 267; Azarcon v. Sandiganbayan, 268 SCRA 647; Palana
v. People, 534 SCRA 296).
As a result of the above rule, once a complaint or information is filed in
court, any disposition of the case such as its dismissal or continuance rests on
the sound discretion of the court (Jalandoni v. Drilon, 327 SCRA 107;
Domondon v. Sandiganbayan, 328 SCRA 292) and even if the prosecution
files a motion to withdraw the information, the court may grant or deny the
same in the faithful exercise of judicial prerogative
(Pilapil v. Garchitorena,
299 SCRA 343).
The Court has been steadfast in declaring that when a court has already
obtained and is exercising jurisdiction over a controversy, its jurisdiction to
proceed to the final determination of the case is not affected by new legislation
placing jurisdiction over such proceedings in another tribunal unless the statute
expressly provides, or is construed to the effect that it is intended to operate on
actions pending before its enactment (Palana v. People, 534 SCRA 296,
September 28, 2007).

Dismissal on jurisdictional grounds; special appearance


1. The rule is settled that an objection based on the ground that the court
lacks jurisdiction over the subject matter
16 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

may be raised or considered


motu proprioby the court at any stage of the
proceedings or on appeal
(Fukuzume v. People, 474 SCRA 570; Foz, Jr. v.
People, G.R. No. 167764, October 9, 2009).
2. A special appearance before the court to challenge the jurisdiction of

the court over


objection thenot
and is person is not tantamount
a voluntary submission to
to estoppel or a waiver
the jurisdiction of the
of the court
(Garcia v. Sandiganbayan, G.R. No. 170122, October 12,2009).

Raising the issue of jurisdiction for the first time in the Supreme Court
1. An accused is not precluded from raising the issue of jurisdiction of
the trial court over the offense charged because the issue may be raised or
consideredmotu proprioby the court at any stage of the proceedings or on
appeal. Moreover, jurisdiction over the subject matter in a criminal case cannot
be conferred upon the court by the accused, by express waiver or otherwise,
since such jurisdiction is conferred by the sovereign authority which organized
the court and is given only by law in the manner and form prescribed by law
(Fukuzume v. People, 474 SCRA 570; Foz, Jr. v. People, G.R. No. 167764,
October 9,2009).
2. A party cannot invoke the jurisdiction of the court to secure
affirmative relief against his opponent and after obtaining or failing to obtain
such relief, repudiate or question that same jurisdiction
(Antiporda, Jr. v.
Garchitorena, 321 SCRA 551).After voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for the loser to
question the jurisdiction or power of the court. While the jurisdiction of a
tribunal may be challenged at any time, sound public policy bars one from
doing so after their having procured that jurisdiction, speculating on the
fortunes of litigation
(People v. Munar, 53 SCRA 278).
The rule is the same as in civil cases. In v. Sibong- hanoy, 23 SCRA
Tijam
29, the Court earlier ruled that a party may be estopped from questioning the
jurisdiction of the court
CHAPTER I 17
PRELIMINARY CONSIDERATIONS

for reasons of public policy as when he initially invokes the jurisdiction of the
court and then later on repudiates that same jurisdiction.
However, the doctrine of estoppel laid downTijaminis an exception and
not the general rule and the rule still stands that jurisdiction is vested by law
and cannot be conferred or waived by the parties. Hence, even on appeal, and
even if the reviewing parties did not raise the issue of jurisdiction, the reviewing
court is not precluded from ruling that the lower court had no jurisdiction over
the case(Pangilinan v. Court of Appeals, 321 SCRA 51).
"Estoppel in questioning the jurisdiction of the court is only brought to
bear when not to do so will subvert the ends of justice. Jurisdiction of courts is
the blueprint of our judicial system without which the road to justice would be
a confusing maze. Whenever the question of jurisdiction is put to front, courts
should not lightly brush aside errors in jurisdiction especially when it is liberty of
an individual which is at stake"
(Pangilinan v. Court of Appeals, 321 SCRA 51).
For Tijam v. Sibonghanoyto be applied to a criminal case, the factual
circumstances which justified the application of the bar by laches, must be
present in the case (Foz, Jr. v. People, G.R. No. 167764, October 9, 2009
citing Fukuzume v. People, supra).

C. Criminal Jurisdiction Over The Person of the Accused (Bar 2008)

1. It was held that jurisdiction over the person of the accused is acquired
upon his arrest or apprehension, with or without a warrant, or his voluntary
appearance or submission to the jurisdiction of the(Valdepehas
court v.
People, 16 SCRA 871; Gimenez v. Nazareno, 160 SCRA 4).
As a general rule, seeking affirmative relief is deemed to be a submission
to the jurisdiction of the court
(Sapugay v. Court of Appeals, 183 SCRA 464).
The voluntary submission of the accused to the jurisdiction of the court may be
effected
18 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

by filing a motion to quash, appearing for arraignment, participating in the trial


or by giving bail(Santiago v. Vasquez, 217 SCRA 633; Antiporda, Jr. v.
Garchitorena, 321 SCRA 551; Miranda v. Tuliao, 486 SCRA 377).
2. The assertion that the court never acquired jurisdiction over the
person of the accused because the warrant of arrest issued is null and void
because no probable cause was found by the court issuing it, cannot be
sustained because he posted a bail. The giving or posting of a bail by the
accused is tantamount to submission of his person to the jurisdiction of the
court. Even if it is conceded that the warrant issued was void, the defendant
waived all his rights to object by appearing and giving (Cojuangco,
a bond Jr. v.
Sandiganbayan, 300 SCRA 367; Velasco v. Court of Appeals, 245 SCRA 677).
Note: To be read in relation to Sec. 26 of Rule 114).
By submitting oneself to the jurisdiction of the court as shown by
entering into a counsel-assisted plea, the active participation in the trial and
presenting evidence for the defense, the accused is deemed to have waived
his constitutional protection against illegal (People
arrest v. Rivera, G.R. No.
177741, August 27,2009).
3. However, not all acts seeking affirmative relief would constitute a
voluntary appearance or submission to the jurisdiction of the court. Making a
special appearance in court to question the jurisdiction of the court over the
person of the accused is not a voluntary appearance as when in a criminal case
a motion to quash is filed precisely on that ground. There is likewise no
submission to the jurisdiction of the court when the accused files a motion to
quash the warrant of arrest because it is the very legality of the court process
forcing the submission of the person of the accused that is the very issue in a
motion to quash a warrant of arrest
(Miranda v. Tuliao, G.R. No. 158763,
March 31,2006).
4. Being in the custody of the law is not necessarily being under the
jurisdiction of the court. "One can be under the custody of the law but not yet
subject to the jurisdiction of the court over his person, such as when a person
arrested
CHAPTER I 19
PRELIMINARY CONSIDERATIONS

by virtue of a warrant files a motion before arraignment to quash the warrant.


On the other hand one can be subject to the jurisdiction of the court over his
person, and yet not be in the custody of the law, as when an accused escapes
custody after his trial has commenced. Being in the custody of the law signifies
restraint on the person, who is thereby deprived of his own will and liberty,
binding him to become obedient to the will of the law. Custody of the law is
literally custody over the body of the accused. It includes, but is not limited to,
detention"(Miranda v. Tuliao, G.R. No. 158763, March2006).
31,

D. Injunction To Restrain Criminal Prosecution (Bar 1999)

As a general rule, the Court will not issue writs of prohibition or injunction
preliminary or final, to enjoin or restrain, criminal prosecution. With more
reason will injunction not lie when the case is still at the stage of preliminary
investigation or reinvestigation. However, in extreme cases, the Court laid the
following exceptions:
(1) when the injunction is necessary to afford adequate protection to the
constitutional rights of the accused; (2) when it is necessary for the orderly
administration of justice or to avoid oppression or multiplicity of actions; (3)
when there is a prejudicial question which is subjudice; (4) when the acts of the
officer are without or in excess of authority; (5) where the prosecution is under
an invalid law, ordinance or regulation; (6) when double jeopardy is clearly
apparent; (7) where the Court has no jurisdiction over the offense; (8) where it
is a case of persecution rather than prosecution; (9) where the charges are
manifestly false and motivated by the lust for vengeance; and (10) when there
is clearly noprima faciecase against the accused and a motion to quash on
that ground has been denied (Camanag v. Guerrero, 335 Phil. 945, 970-971
[1997], citing Paderanga v. Drilon, 196 SCRA 86 [1991]; Brocka v. Enrile, 192
SCRA 183; Crespo v. Mogul, 151 SCRA 462 [1987]; Mercado v. Court of
Appeals, 245 SCRA 594, 598 [1995] cited
20 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

in Samson v. Guingona, Jr., G.R. No. 123504, December 14, 2000).

E. Mandamus To Compel Prosecution (Bar 1999)

1. Mandamusis a remedial measure for parties aggrieved which shall


be issued when "any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station." The writ of
mandamus is not
available to control discretion. Neither may it be issued to compel the exercise
of discretion. Truly, it is a matter of discretion on the part of the prosecutor to
determine which persons appear responsible for the commission of a crime.
However, the moment he finds one to be so liable, it becomes his inescapable
duty to charge him therewith and to prosecute him for the same. In such a
situation, the rule loses its discretionary character and becomes mandatory
(Metropolitan Bank and Trust Company v. Rogelio Reynaldo and Jose C.
Adrandea, G.R. No. 164538, August 9,2010).
If despite the sufficiency of the evidence before the prosecutor, he
refuses to file the corresponding information against the person responsible,
he abuses his discretion. His act is tantamount to a deliberate refusal to
perform a duty enjoined by law. The Secretary of Justice, on the other hand,
would gravely abuse his discretion when, despite the existence of sufficient
evidence for the crime as acknowledged by the investigating prosecutor, he
completely ignored the latter's finding and proceeded with the questioned
resolution anchored on purely evidentiary matters in utter disregard of the
concept of probable cause. To be sure, findings of the Secretary of Justice are
not subject to review unless shown to have been made with grave abuse but a
case like this calls for the application of an exception
(Metropolitan Bank and
Trust Company v. Rogelio Reynaldo and Jose C. Adrandea, G.R. No. 164538,
August 9,2010).
2. "Generally, a public prosecutor is afforded a wide latitude of
discretion in the conduct of a preliminary investiga
CHAPTER I 21
PRELIMINARY CONSIDERATIONS

tion. By way of exception, however, judicial review is allowed where


respondent has clearly established that the prosecutor committed grave abuse
of discretion, that is, when he has exercised his discretion in an arbitrary,
capricious, whimsical or despotic manner by reason of passion or personal
hostility, paten
t and gross enough as to
amount to an evasion ofpositive
a duty
(Metropolitan
or virtual refusal to perform a duty enjoined by law" Bank and
Trust Company v. Rogelio Reynaldo and Jose C. Adrandea, G.R. No. 164538,
August 9,2010).

II. CRIMINAL JURISDICTION OF COURTS

A. Criminal Jurisdiction of the Municipal


Trial Court, Municipal Circuit Trial Court, and Metropolitan Trial Court (MTC)
Except in cases falling within the exclusive srcinal jurisdiction of the
Regional Trial Court and of the
Sandiganbayan,the MTC shall exercise the
following criminal jurisdiction:
1. Exclusive srcinal jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction
(Batas
Pambansa Big. 129, Section 3211); Republic Act No. 7691);
2. Exclusive srcinal jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of fine,

and regardless of other im- posable or accessory penalties, including the civil
liability arising from such offenses irrespective of kind, nature, value or amount
(B.P. 129, Sec. 32[2]; R.A. 7691);
This rule disregarding the amount of the fine and other accessory
penalties in determining jurisdiction applies where the offense is punishable by
imprisonment or fine or both but not when the offense is punishable by fine
only.
Note that the jurisdiction of the MTC is qualified by theExcept
phrasein"
cases falling within the exclusive jurisdiction of the Regional Trial Court and
of the Sandiganbayan This indicates that the MTC does not at all times have
jurisdiction
22 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

over offenses punishable with imprisonment not exceeding six (6) years if
jurisdiction is vested by law either in the RTC or Sandiganbayan.
Based on Article 27 of the Revised Penal Code, the MTC has jurisdiction
over offenses punishable by up to the maximum of correccional
prision which
shall not exceed six (6) years. There are however, offenses which even if
punishable byprision correccional are not cognizable by the MTC because of
an express provision of law like libel as defined in Article 355 of the Revised
Penal Code. Under this provision, libel by means of writings or similar means
shall be punishable by prision correccional in its minimum and medium
periods or a fine ranging from P200 to P6,000 pesos or both. Nevertheless,
under Article 360 of the Revised Penal Code, the criminal action as well as the
civil action for such offense shall be filed simultaneously or separately with the
CFI (now RTC).
Also, some forms of direct bribery under Article 210 of the Revised Penal
Code which are punishableprision
by correccionalin its medium period, are
within the exclusive jurisdiction ofSandiganbayan
the pursuant to Sec. 4(a) of
P.D. 1606 as amended. Indirect bribery, a felony punishable by
prision
correccionalin its medium and maximum periods under Article 211 of the
Revised Penal Code are likewise cognizable Sandiganbayan
by the pursuant to
Sec. 4(a) of P.D. 1606 as amended.
3. Where the only penalty provided for by law is a fine, the amount
thereof shall determine the jurisdiction of the court under the
srcinal
provisions of B.P. 129 (Sec. 32[2]) which provided that the MTC shall have
exclusive srcinal jurisdiction over offenses punishable with a fine of not more
than Four Thousand (P4,000.00) Pesos;
4. Exclusive srcinal jurisdiction over offenses involving damage to
property through criminal negligence
(B.P. 129, Sec. 32[2]; RA. 7691);
5. Violations of B.P. 22 (Bouncing Checks Law)
(A.M. No.
00-11-01-SC, March 25,2003);
CHAPTER I 23
PRELIMINARY CONSIDERATIONS

6. Summary procedure in the following cases:


a. Violations of traffic laws, rules and regulations,
violations of the rental law; and violations
municipal
of
or city ordinances;
b. All other criminal cases where the penalty pre-

scribed by law six


not exceeding for months,
the offense
or acharged
fine notisexceeding
imprisonment
one
thousand pesos (PI,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civ-
il liability arising therefrom;
c. Offenses involving damage to property through
criminal negligence where the imposable fine does not
exceed ten thousand pesos P10,000.00
(The 1991 Rule on
Summary Procedure [Sec. IB]).
7. Special jurisdiction to decide on applications for
bail
in criminal cases in the absence of all RTC judges in a province
or city(B.P. 129 [Sec. 35]).

B. Criminal Jurisdiction of Regional


Trial Court (RTC)
1. Exclusive srcinal jurisdiction in all criminal cases
not within the exclusive jurisdiction of any court, tribunal or
body, except those now falling under the exclusive and concur-
rent jurisdiction of the Sandiganbayan
(B.P. 129 [Sec. 20
2. Appellate jurisdiction over all cases decided by the
MTC within its territorial jurisdiction
(B.P. 129 [Sec. 22
3. Special jurisdiction to handle exclusively criminal
cases as designated by the Supreme Court
(B.P. 129 [Sec. 23
4. Jurisdiction over criminal cases under specific laws
such as:
(a) Written defamation
(Art. 360, Revised Penal
Code);
(b) Jurisdict
ion ofdesignated courts over cases in
violation of the Comprehensive Dangerous Drugs Act of
2002{RA. No. 9165)as provided under Sec. 90 thereof;
24 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

(c) Violations of intellectual property [A.M.


rightsNo. 03-03-03-SC
2003-06-17, Effective July 1, 2003 implementing the Intellectual
Property Code of the Philippines [R A. 8293]).
The public prosecutor has the authority to file a criminal information for
violation of Presidential Decree (P.D.) 957 and the Regional Trial Court has the
power to hear and adjudicate the action, the penalty being a P20,000.00 fine
and imprisonment of not exceeding 10 years or both such fine and
imprisonment. This penalty brings the offense within the jurisdiction of the
Regional Trial Court
(Victoria P. Cabral v. Jacinto Uy, et al, G.R. No. 174584,
January 22,2010).
— The Regional Trial Courts
5. Jurisdiction in Money Laundering Cases.
shall have jurisdiction to try all cases on money laundering. Those committed
by public officers and private persons who are in conspiracy with such public
officers shall be under the jurisdiction Sandiganbayan
of the (Sec. 5, RA. 9160,
Anti-Money Laundering Act of2001).

C. Criminal Jurisdiction ofSandiganbayan


the (PJ). 1606, RA. 7975
and RA. 8249)

1. The jurisdiction of the Sandiganbayan is set by P.D. 1606 as


amended and not by R.A. 3019 or the Anti-Graft and Corrupt Practices Act as
amended(Serana v. Sandiganbayan, G.R. No. 162059, January 22,2008).
2. The applicable law provides:
u
Section 4. Jurisdiction — The Sandiganbayanshall exercise srcinal
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corruption Practices Act, and Republic Act
No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting
or interim capacity, at the time of the commission of the offense:
(italics supplied)
CHAPTER I 25
PRELIMINARY CONSIDERATIONS

(1) Officials of the executive branch occupying the


positions of regional director and higher, otherwise classified as
Grade "27" and higher of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members
of the sangguniang panlalawigan,and provincial
treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsod y city treasurer, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their

assistants, and
Ombudsman officials
and specialand prosecutors in the Office of the
prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations
(Note:
30,2011).
See People v. Morales, G.R. No. 166355, May
(2) Members of Congress and officials thereof classified as
Grade "27" and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the
Constitut
ion;
26 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

(4) Chairmen and members of Constitutional


Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade
"27" and higher under the Compensation and Position
Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and employees
mentioned in subsection "a" of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
Note: The
Sandiganbayan also exercises civil jurisdiction (Antiporda v.
Garchitorena, 321 SCRA 551).
"In cases where none of the accused are occupying positions
corresponding to Salary Grade '27' or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive srcinal jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Big. 129, as

amended.
"The Sandiganbayanshall exercise exclusive appellate jurisdiction
over final judgments, resolutions or orders of regional trial courts
whether in the exercise of their own srcinal jurisdiction or of their
appellate jurisdiction as herein provided.
"The Sandiganbayanshall have exclusive srcinal jurisdiction over
petitions for the issuance of writs
the of mandamus, prohibition,
, and other ancillary writs and
certiorari, habeas corpus, injunctions
processes in aid of its appellate jurisdiction and over petitions of similar
nature, including
quo warranto , arising or that may arise in cases filed or
which may be filed under Executive
CHAPTER I 27
PRELIMINARY CONSIDERATIONS

Order Nos. 1, 2, 14 and 14-A, issued in Provided,


1986:
That the jurisdiction over these petitions shall not be ex-
clusive of the Supreme Court.
"The procedure prescribed in Batas Pambansa Big.
129, as well as the implementing rules that the Supreme
Court has promulgated and may hereafter promulgate,
relative to appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for review
filed with the
Sandiganbayan.In all cases elevated to the
Sandiganbayanand from the Sandiganbayanto the Su-
preme Court, the Office of the Ombudsman through its
special prosecutor, shall represent the People of the Phil-
ippines except in cases filed pursuant to Executive Order
Nos. 1, 2,14 and 14-A, issued in 1986.
"In case private individuals are charged as co-prin-
cipals, accomplices or accessories with the public officers
or employees, including those employed in government-
owned or controlled corporations, they shall be tried
jointly with said public officers and employees in the
proper courts which shall exercise exclusive jurisdiction
over them."
xxx
3. Prior to R.A. 8249, the law which governed the
jurisdiction of the Sandiganbayanwas R.A. 7975 amend-
ing P.D. 1606.
R.A. 7975 conferred jurisdiction onSandiganbayan
the
over certain specified offenses "where one or more of the
prin-
cipalaccused" areofficials occupying the positions enumer-
ated in the law. A significant amendment introduced by R.A.
8249 was the removal of the wordprincipalbefore the word
accusedthus transforming the phrase to read:
"where one or
more of the accused" (Sec. 4[a]ofP.D. 1606 as amended).Thus,
as the law is now written, one of the accused no longer has to
be a principalaccused and may simply be an accomplice or an
accessory. Also, not all of the accused need be those officials
mentioned in the said law. It is sufficient that at least one of
them be an official occupying any of the positions enumerated.
28 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Offenses subject to the jurisdiction ofSandiganbaya


the n (Bar 1997)
1. The phraseology of the governing law discloses that the jurisdiction of
the Sandiganbayan is not confined to violations of the Anti-Graft and Corrupt
Practices Act. Specifically, the following offenses are subject to the jurisdiction
of theSandiganbayan:
a. Violations of as amended, otherwise
Republic Act No. 3019
known as the Anti-Graft and Corrupt Practices Act 4[a] of
(Section
Presidential Decree 1606 as amended).
b. Violations ofRepublic Act No. 1379or otherwise known as
the Act Declaring Forfeiture in Favor of the State Any Property Found to
Have Been Unlawfully Acquired by Any Public Officer or Employee
(Sec.
4[a] of P.D. 1606 as amended).
c. Violations of Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code (Sec. 4[a] ofP.D. 1606 as amended). These
offenses refer to the law on bribery in all its forms including corruption of
public officers
(Articles 210-212, Revised Penal Code).
d. Other offenses or felonies (aside from the above), whether
simple or complexed with other crimes, committed by public officials
mentioned in letter "a" of Sec. 4 in relation to their officerefer to
(Please
the enumeration of these officials earlier made under the topic

'Criminal jurisdiction of the Sandiganbayan' above).


The terms "offenses or felonies" in letter "d" above are so broad in
meaning and are not restricted to the laws earlier mentioned. These
offenses however, must be those committed by officials * to
in relation
their office."
Thus, inSerana v. Sandiganbayan, G.R. No. 162059, January 22,
2008, the Court declared in no uncertain terms, that the
Sandiganbayan
has jurisdiction over felonies committed by public officials in relation to
their office. The court further heldestafa
that is one of those
CHAPTER I 29
PRELIMINARY CONSIDERATIONS

felonies and the


Sandiganbayanhas jurisdiction if (a) the
offense is committed by a public official or an employee
mentioned in Sec. 4, paragraph "a;" and (b) the offense is
committed in relation to his office.
In another case, the accused argues that the crime of
falsification as defined under Articles 171 and 172 of the
RPC is not within the jurisdiction of the Sandiganbayan.
He also points out that nowhere under Sec. 4 of Presiden-
tial Decree No. 1606, R.A. 3019, R.A. 1379, or in Title VII,
Book II of the RPC is "falsification of official document"
mentioned. The Court struck down the argument and
ruled that falsification of public document under the RPC
is within the jurisdiction of the Sandiganbayan
(Pactolin
v. Sandiganbayan, G.R. No. 161455, May 20,2008).
e. Civil and criminal offenses filed pursuant to
and in connection with Executive Order Nos. 1, 2,14 and
14-A issued in 1986
(Sec. 4[c] P.D. 1606 as amended).
These executive orders refer to orders on sequestration
cases.

Officials and employees with a salary grade of "27" or higher


1. Should one or more of the officials charged have a
salary grade of "27" or higher forSandiganbayan
the to have
jurisdiction over the case? It is submitted that the query be
answered in the negative. The law mentions salary grade "27"
only in relation to the following officials:
(a) Officials of the executive branch, occupying the
position of regional director and higher
(Section 4[a][l
(b) Members of Congress or officials thereof
(Sec-
tion 4[a][2J);and
(c) All other national and local officials
(Section
4[a][5]).These officials are those who are not enumerated
in letters "a" to "g" of Sec. 4(a)(1).
The salary grade of "27" has no reference for example to
provincial governors, vice governors or memberssang-
of the
directors or
guniang panlalawigan, sangguniang panlunsod,
30 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

managers of government-owned or controlled corporations, city mayors, vice


mayors, city treasurers, assessors, engineers, trustees of state universities, and
other officials enumerated in Section 4(a) (l)from letters "a" to "g" of
Presidential Decree 1606 as amended.
Those enumerated are subject to the jurisdictionSandiganbayan
of the
regardless of salary grade (Inding v. Sandiganbayan, 434 SCRA Thus,
388). if
the accused does not belong to the national and local officials enumerated, in
order for theSandiganbayanto acquire jurisdiction over the offense, the
same must be committed by officials classified as Grade 27 and higher, aside
from other officials, expressly covered.
2. Instructive is the ruling of the Court in
Inding:
"Clearly, therefore, Congress intended these officials
regardless of
their salary grades , to be specifically included within the
Sandiganbayan's srcinal jurisdiction, for had it been otherwise, then
there would have been no need for such enumeration
(italics supplied).
xxx
"This conclusion is further bolstered by the fact that some of the
officials enumerated in "a" to "g" are not classified as SG 27 or higher
under the xx x Position Titles and Salary Grades of the Department of
Budget and Management x x x."

Officers falling below salary grade "27"


1. Geduspan v. People, 451 SCRA 187,raised the issue on whether or
not theSandiganbayanhas jurisdiction over a regional director/manager of
government-owned or controlled corporations organized and incorporated
under the Corporation Code for purposes of R.A. 3019, the Anti-Graft and
Corrupt Practices Act. The petitioner assumed a negative view in a petition for
certiorariunder Rule 65 filed with the Supreme Court. The Office of the Special
Prosecutor argued otherwise, a view shared Sandiganbayan.
by the
CHAPTER I 31
PRELIMINARY CONSIDERATIONS

The records showed that, although the petitioner was a Director of


Region VI of the Philhealth, she was not occupying the position of Regional
Director but that of Department Manager A in accordance with her
appointment papers. It is petitioner's appointment paper, held the Court and
the notice of salary adjustment that determine the classification of her position,
that is, Department Manager A of Philhealth.
The petitioner admitted that she holds the position of Department
Manager A of Philhealth. She, however, contended that the position of
Department Manager A is classified under salary grade 26 and therefore
outside the jurisdiction of respondent court. The Court found that the
petitioner held the position of Department Director A of Philhealth at the time
of the commission of the offense and that position is among those enumerated
in paragraph 1(g), Section 4a of R.A. 8249 over which the Sandiganbayan has
jurisdiction and which provision includes "Presidents, directors or trustees, or
managers of government-owned and controlled corporations, state
universities or educational institutions or foundations"
(italics supplied).
It is of no moment, added the Court, that the position of petitioner was
merely classified as salary grade 26. While the first part of Sec. 4 of P.D. 1606
covers only officials of the executive branch with the salary grade 27 and higher,
the second part thereof "specifically includes" other executive officials whose
positions may not be of grade 27 and higher but who are by express provision
of law placed under the jurisdiction of the said court.
2. In a relatively recent case, a member Sangguniang
of the Panlungsod
of a city was charged for allegedly criminally failing to liquidate certain cash
advances he made in violation of the Auditing Code of the Philippines.
The core issue raised in this casePeople
of of the Philippines v.
, was whether or not
Sandiganbayan, G.R. No. 169004, September 15, 2010
the Sandiganbayan has jurisdiction over a member of the
Sangguniang
Panlungsodwhose salary grade is below 27 and charged with violation of The
Auditing
32 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

Code of the Philippines. The Court held in the affirmative, citing the provisions of R.A. 8249 and
those that are classified as Grade 26 and below may still fall within the jurisdiction of the
Sandiganbayanprovided that they hold the positions thus enumerated by the same law.
In resolving the issue in favor of the People, the Court explained:

"Particularly and exclusively enumerated are provincial governors,


vice-governors, members of the sang- guniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads; city
mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department heads; officials of the diplomatic
service occupying the position as consul and higher, Philippine army and air force
colonels, naval captains, and all officers of higher rank; PNP chief superintendent
and PNP officers of higher rank; City and provincial prosecutors and their
assistants, and officials and prosecutors in the Office of the Ombudsman and
special prosecutor; and presidents, directors or trustees, or managers of govern-
ment-owned or controlled corporations, state universities or educational
institutions or foundations. In connection therewith, Section 4 (b) of the same law
provides that other offenses or felonies committed by public officials and
employees mentioned in subsection (a) in relation to their office also fall under
(People of the Philippines v.
the jurisdiction of the Sandiganbayan"
Sandiganbayan and Rolando Plaza, G.R. No. 169004,
September 15,2010).

People
3. The earlier case of v. Sandiganbayan, G.R. No. 167304, August
25, 2009, was decided under facts substantially similar to those in the
People
other case of
v. Sandiganbayancited in the immediately preceding number.
The issue presented to the Court for resolution in the case involving the respondent was
Sangguniang
whether or not a member of the Panlungsod
under salary grade 26 who
was charged with violation of the Auditing Code of the Philippines for failure to liquidate cash
advances falls within the juris
CHAPTER I 33
PRELIMINARY CONSIDERATIONS

diction of the
Sandiganbayan.Earlier, theSandiganbayandismissed the case
against the accused for lack of jurisdiction without prejudice to the filing of the
case in the proper court. The People sought to have the dismissal reversed and
set aside by the Supreme Court.
Those that are classified as grade 26 and below may still fall within the
jurisdiction of the Sandiganbayanprovided they hold the position enumerated
in the law. As in the other case, the Court held that Section 4 (b) of the same
law provides that other offenses or felonies committed by public officials and
employees mentioned in subsection (a) in relation to their office also fall under
the jurisdiction of theSandiganbayan.
Thus, "x x x those public officials enumerated in Sec. 4(a) of PD1606 as
amended may not only be charged with violations of R.A. 3019 (Anti-graft and
Corrupt Practices Act), R.A. 1379 or Chapter II, Section 2, Title VII of the Revised
Penal Code, but also with offenses or felonies in relation to their office. The said
other offenses and felonies are broad in scope but are limited only to those
that are committed in relation to the public official or employee's office, x x x as
long as the offense charged in the information is intimately connected with the
office and is alleged to have been perpetrated while the accused was in the
performance x x x of his official functions x x x the accused is held to have
been indicted in relation to his office" (People v. Sandiganbayan, G.R. No.
167304, August 25,2009).

Salary grade alone does not determine jurisdiction Sandiganbayan


of the
It is not only the salary grade that determines the
jurisdiction of the
Sandiganbayan.The Sandiganbayan also has jurisdiction over other officers
enumerated in P.D. 1606 as amended. While the first part of Sec. 4(a) of the
law covers only officials with salary grade 27 and higher, its second part
specifically includes other executive officials whose positions may not be with
salary grade 27 or higher but who are by express provision of the law placed
under the jurisdiction of
34 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

said court(Geduspan v. People, G.R. No. 158187, February 11, 2005; Serana
v. Sandiganbayan, G.R. No. 162059, January 22, 2008; People u.
Sandiganbayan, G.R. No. 169004, September 15,2010).

A student regent of a state university is a public officer


The petitioner in one case contended that the Sandiganbayan has no
jurisdiction over her person. As a student regent she claimed she was not a
public officer since she merely represented the students of the institution, in
contrast to the other regents who held their positions in an capacity.
ex officio
She added that she was just a simple student and did not receive any salary as
a student regent and thus could not fall under any salary grade.
The argument that she was not a public officer was struck down by the
Court. The petitioner is a public officer whose position is covered by the law
vesting jurisdiction over Sandiganbayan.
the The provisions of Sec. 4(a)(1)(g)
of P.D. 1606 as amended, explicitly vested the
Sandiganbayan with jurisdic-
tion over Presidents, directors or trustees, or managers of government-owned
or controlled corporations,
state universitiesor educational institutions or
foundations. The petitioner, as a student regent falls under this category. The
board of Regents of the University of the Philippines performs functions similar
to those of a board of trustees of a non-stock corporation. By express mandate
of the law, the petitioner declared the Court, is a public officer as
contemplated by P.D. 1606. The Court added that compensation is not an
essential element of a public office and is merely incidental to the public office
(Serana v. Sandiganbayan, G.R. No. 162059, January 22,2008).

Offenses committed in relation to the office


1. As a rule, to make an offense one committed in relation to the office,
"the relation has to be such that, in the legal sense, the offense cannot exist
without the office." In other words, the office must be a constituent element of
the crime as defined by statute, such as for instance, the crimes defined
CHAPTER I 35
PRELIMINARY CONSIDERATIONS

and punished in Chapter Two to Six, Title Seven of the Revised Penal Code
like direct bribery, frauds against the public
{Montilla v. Hilario, 90 Phil. 49),
treasury, malversation of public funds and property, failure of an accountable
officer to render accounts, illegal use of public funds or property or any of the
crimes from Articles 204 to 245 of the Revised Penal Code.

2. Public office is not an element of the crime of murder, since


murder may be committed by any person whether a public officer or a private
citizen(Cunanan v. Arceo, 242 SCRA 88). Public office is not the essence of
murder. The taking of human life is either murder or homicide whether done
by a private citizen or public servant
(Montilla v. Hilario, 90 Phil. 49).
There is also no direct relation between the commission of the crime of
rape with homicide and the office as municipal mayor because public office is
not an essential element of the crime charged. The offense can stand
independently of the office
(Sanchez v. Demetriou, 227 SCRA 627).
3. However, even if the position is not an essential ingredient of the
offense charged, if the information avers the intimate connection between the
office and the offense, this would bring the offense within the definition of an
offense "committed in relation to the public office"
(Sanchez v. Demetriou,
227 SCRA 627).
4. An offense maybe said to have been committed in relation to the
office if the offense is "intimately connected" with the office of the offender
and perpetrated while he was in the performance of his official functions even
if public office is not an element of the offense charged. It is important
however, that the information must allege the intimate relation between the
offense charged and the discharge of official duties because the factor that
characterizes the charge is the actual recital of the facts in the complaint or
information. If the information lacks the required specific factual averments to
show the intimate connection between the offense charged and the discharge
of official functions, it was ruled that the
36 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

Sandiganbayan is without jurisdiction over the case (Esteban v.


Sandiganbayan, 453 SCRA 236; People v. Montejo 108 Phil. 613).
5. In Esteban v. Sandiganbayan, 453 SCRA 236, the accused filed
motions to quash the two informations filed against him for acts of
lasciviousness allegedly perpetrated by him against a female casual employee
assigned to his office. The accused argued that Sandiganbayan
the has no
jurisdiction over the offense charged since the alleged acts imputed to him
were not committed in relation to his office as a judge. When the motion to
quash and the subsequent motion for reconsideration were denied, he
brought the issue of jurisdiction before the Supreme Court on under
certiorari
Rule 65. The Supreme Court sustained Sandiganbayan
the because the
information alleged with clarity that the accused used his official position to
commit the acts charged. As alleged in the information, the victim was
constrained to approach the accused because it was the latter whose
recommendation was necessary for her appointment as a casual employee
but the accused imposed the condition that she has to become his girlfriend
first and report to his office daily for a kiss. While it is true, explained the Court,
that public office is not an element of the crime of acts of lasciviousness,
nonetheless, he could not have committed the crimes charged were it not for
his being the judge of the court where the victim was working. Taken together
with the fact that the accused had the authority to recommend the
appointment of the victim as an employee, the crimes committed were
therefore, intimately connected with his office.
6. In the much earlier but significant and frequently cited case of
People v. Montejo, 108 Phil. 613, involving a city mayor accused of murder,
one issue sought to be resolved was whether or not the accused committed
the murder in relation to his office. Examining the allegations in the
information, the Court found that the information sufficiently indicated the
existence of acts and events intimately connected to the public office of the
accused. The information clearly alleged that the murder was a consequence
of his act as amayor;
CHAPTER I 37
PRELIMINARY CONSIDERATIONS

that he organized armed patrols and civilian commandos and provided them
with arms. Also acting as the city mayor and leader of the patrols, he ordered
the arrest and maltreatment of the victim who died as a consequence. While
public office is not an element of murder, the offense as alleged shows its
commission while the accused was in the performance of his official functions
and that the offense could not have been committed had he not held his office.
Public office is not, of course, an element of the crime of murder, since
murder may be committed by any person. However, the averments of the
information could bring the offense within the meaning of an "an offense
committed in relation to the public office'' and thus, the offense would fall
within the jurisdiction of Sandiganbayan
the (Cunanan v. Arceo, 242 SCRA
89).
7. The previously cited cases require that the information must contain
the specific factual allegations that would indicate the close intimacy between
the discharge of the official duties of the accused and the commission of the
offense charged, in order to qualify the crime as having been committed in
relation to public office.
This requirement however, was not metLacson in v. Executive
Secretary, 301 SCRA 298. While the amended information for murder against
the several accused was alleged to have been committed "in relation to their
official duties as police officers," it contained no specific allegations of facts that
the shooting of the victim was intimately related to the discharge of the official
functions of theaccused.
Lacson held that the said phrase is not what determines the jurisdiction
of the court. What is controlling isspecific
the in the
factual allegations
information.
Declared the Court in lucid terms:
"The stringent requirement that the charge be set forth with such
particularity as will reasonably indicate the exact offense which the accused is
alleged to have committed in relation to his office was, sad to say, not
38 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

satisfied. We believe that the mere allegation in the


amended information that the offense charged was
committed x x x in relation to his office is not sufficient.
conclusion
The phrase is merely a of law, not afactual
averment that would show the close intimacy between the
offense charged and the discharge of the accused's official
duties."
xxx

When the actual specific allegations of the intimacy between


the offense and the official duties of the accused need not
appear in the information
1. It would appear from a reading of jurisprudence that
if public office is a constituent element of the crime charged as
provided for by statute, there is no need for the information
to state the specific factual allegations of the intimacy
between the office and the crime charged, or that the accused
committed the crime in the performance of his duties. These
crimes are those in which the public office is a constituent
element as defined by statute and the relation between the
crime and the offense is such that, in a legal sense, the offense
committed cannot exist without the office like malversation
of public funds or property defined and penalized by Article
217 of the Revised Penal Code, and the illegal use of public
funds or property defined and penalized by Article 220 of the
same Code. In these felonies, public office of the accused is a
constituent element in both felonies.
2. In those cases where public office is not a constituent
element of the offense charged, the information has to contain
specific factual allegations showing the intimate connection
between the offense charged and the public office of the accused,
— whether
and the discharge of his official duties or functions
improper or irregular. The requirement is not complied with if
the information merely alleges that the accused committed the
crime charged in relation to his office because such allegation
is merely a conclusion of (Barriga
law v. Sandiganbayan, G.R.
Nos. 161784-86, April 26,2005; Escobal v. Garchitorena, 422
SCRA 45).
CHAPTER I 39
PRELIMINARY CONSIDERATIONS

Barriga further elucidates:


"x x x There are two classes of public office-related
crimes under subparagraph (b) of Section 4 of Rep. Act
No. 8249: first, those crimes or felonies in which the pub-
lic office is a constituent element as defined by statute
and the relation between the crime and the offense is such
that, in a legal sense, the offense committed cannot exist
without the office; second, such offenses or felonies which
are intimately connected with the public office and are
perpetrated by the public officer or employee while in the
performance of his official functions, through improper or
irregular conduct.
The Sandiganbayan has srcinal jurisdiction over
criminal cases involving crimes and felonies under the
first classification. Considering that the public office of
the accused is by statute a constituent element of the
crime charged, there is no need for the Prosecutor to state
in the Information specific factual allegations of the inti-
macy between the office and the crime charged, or that
the accused committed the crime in the performance of
his duties. However, the Sandiganbayan likewise has
srcinal jurisdiction over criminal cases involving crimes
or felonies committed by the public officers and employ-

ees enumerated in Section (a) (1) to (5) under the second


classification if the Information contains specific factual
allegations showing the intimate connection between the
offense charged and the public office of the accused, and
the discharge of his official duties or—
functions
whether
improper or irregular. The requirement notiscomplied
with if the Information merely alleges that the accused
committed the crime charged in relation to his office be-
cause such allegation is merely a conclusion of law."

3. In summary, an offense is deemed to be committed


in relation to the public office of the accused when, (a) such
office is an element of the crime charged, or (b) when the
offense charged is intimately connected with the discharge of
the official functions of the accused.
Even if the position not
is an essential ingredient of the
offense charged, if the information avers the intimate connec-
tion between the office and the offense, this would bring the
40 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

offense within the definition of an offense "committed in relation to the public


office."
Where the information averred facts showing that the accused took
advantage of his official functions as municipal mayor when he aimed his gun
and threatened to kill a councilor during a public hearing, clearly the crime
charged is intimately connected with the discharge of official(Alarilla
functions
v. Sandiganbayan, 338 SCRA 485).

Anti-Money Laundering cases


Those money laundering cases committed by public officers and private
persons who are in conspiracy with such public officers shall be under the
jurisdiction of the Sandiganbayan (Sec. 5, RA. 9160, Anti-Money Laundering
Act of2001).

Forfeiture cases
A forfeiture case under R.A. 1379 arises out of a cause of action separate
and different from a plunder case, thus negating the notion that the crime of
plunder absorbs the forfeiture cases. In a prosecution for plunder, what is
sought to be established is the commission of the criminal acts in furtherance
of the acquisition of ill-gotten wealth. On the other hand, all that the court
needs to determine, by preponderance of evidence, under R.A. 1379 is the
disproportion of respondent's properties to his legitimate income, it being
unnecessary to prove how he acquired such properties (Garcia v.
Sandiganbayan, G.R. No. 171381, October 12,2009).

Summary procedure in criminal cases


1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities,
the Municipal Trial Courts and the Municipal Circuit Trial Courts shall have
jurisdiction over cases falling under summary procedure committed within
their jurisdiction
(Sec. 1, The 1991 Rule on Summary Procedure).
2. The following cases are subject to summary procedure:
(a) Violations of traffic laws, rules and regulations;
CHAPTER I 41
PRELIMINARY CONSIDERATIONS

(b) Violations of the rental law and BP 22;


(c) Violations of municipal or city
ordinance
s;
(d) All other criminal cases where the penalty prescribed by law
for the offense charged is imprisonment not exceeding six (6) months, or

a fine not ofexceeding


irrespective one thousand
other imposable penalties, pesos (PI,000.00),
accessory or or
or otherwise, both,
of
the civil liability arising therefrom.
(e) Offenses involving damage to property through criminal
negligence where the imposable fine does not exceed ten thousand
pesos (P10,000.00)
(Sec. 1[B], The 1991 Rule on Summary Procedure).
3. The filing of criminal cases under summary procedure may be
either by complaint or information. In Metro Manila and other chartered cities,
the filing shall be by information except when the offense is one which cannot
be prosecuted de officio (Sec. 11, The 1991 Rule on Summary Procedure).
The complaint or information shall be accompanied by the affidavits of
the complainant and his witnesses in such number of copies as there are
accused plus two (2) copies for the court's files. This requirement has to be
complied with within five (5) days from the filing of the case, otherwise the
same may be dismissed
(Sec. 11, The 1991 Rule on Summary Procedure).
4. Should the court find no cause or ground to hold the accused for
trial, it shall order the dismissal of the case. If there is a ground to hold the
accused for trial, the court shall set the case for arraignment(Sec.
and 13,
trial.
The 1991 Rule on Summary Procedure).
5. Before conducting the trial, the court shall call the parties to a
preliminary conference during which the following may be done:
(a) entering into a stipulation of facts;
(b) considering the propriety of allowing the accused to enter a
plea of guilty to a lesser offense; or
42 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

(c) taking up such other matters to clarify the issues and to ensure a
speedy disposition of the case
(Sec.
14, The 1991 Rule on Summary Procedure).
6. If the accused refuses to stipulate or fails to do so, such refusal or
failure shall not prejudice the accused. Also, any admission of the accused
made during the preliminary conference must be reduced to writing and
signed by the accused and his counsel. If this requirement is not met, such
admission shall not be used against(Sec.
him 14, The 1991 Rule on Summary
Procedure).
7. During the trial, an actual direct examination of the witnesses is
not required because the affidavits submitted shall constitute their direct
testimonies. The witnesses however, may be subjected to a
cross-examination, re-direct examination or re-cross examination.
Should the affiant fail to testify, his affidavit shall not be considered as
competent evidence for the party presenting the affidavit. However, the
adverse party may utilize the same for any admissible (Sec. purpose
15, The
1991 Rule on Summary Procedure).
8. The court is mandated not to order the arrest of the accused
except where the ground is his failure to appear when required by the court. If
he is arrested, he may be released on bail or on recognizance by a responsible
citizen acceptable to the court(Sec. 16, The 1991 Rule on Summary
Procedure).
9. Where a trial has been conducted, the court shall promulgate the
judgment not later than thirty (30) days after the termination of the trial (Sec.
17, The 1991 Rule on Summary Procedure).

Prohibited pleadings, motions and petitions in summary procedure (Bar


2004); civil and criminal cases
1. Motion to quash the complaint or information except if the ground is
lack of jurisdiction over the subject matter or failure to comply
with the barangay conciliation proceedings;
CHAPTER I 43
PRELIMINARY CONSIDERATIONS

2. Motion for bill of particulars;


3. Motion for new trial, or for consideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any
other paper;
6. Memoranda;
7. Petition forcertiorari, mandamus,or prohibition against any
interlocutory order issued by the court;
(Bar 2004)
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-part
y complaints
;
12. Interventions (Sec. 19,1991 Rule on Summary Procedure)

III. SYNOPSIS OF THE CRIMINAL LITIGATION PROCESS


Initial contact with the criminal justice system
1. The criminal litigation process presupposes the prior commission of a
crime or at least the perception that a crime has been committed. There can
be no criminal action unless a crime is believed to have been committed.
When a crime is committed, there is an offender and generally, there is
a victim. The victim may be a private person who may be either a natural or a
juridical person. The crimes of homicide, murder or parricide for instance, are
crimes committed against a private individual and classified as crimes against
persons.
Crimes may however, also be committed against juridical or artificial
persons as when the offender commits theft or robbery against the property of
such juridical persons. Sometimes the offense is not committed against a
private
44 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

person as when the offense is committed against public interest like


counterfeiting the great seal of the Government of the Philippine Islands or
committed against public order like rebellion, sedition or disloyalty of public
officers and employees. Crimes may be committed against national security
like treason and other related offenses. A crime may also be committed by the
mere possession of goods or things prohibited by law.
2. No matter how or against whom the offense is committed, the
mere commission of a crime does not automatically trigger the application of
the rules of criminal procedure. The rules come into operation only when acts
are initiated that would put the offender in contact with the law. This contact
with the law is normally effected when the criminal act is brought to the
attention of duly constituted authorities.
For instance, the offended party may file a written complaint before the
barangayor in proper cases a sworn complaint before the prosecuting arm of
the government. In certain cases, the aggrieved party may initiate the filing of a
complaint directly with the Municipal Trial Court. Contact with the law may
also occur when law enforcement officers search a place under the control of
the alleged offender and seize goods, articles or things found therein. This
initial contact may likewise happen when an offender is arrested in
flagrante
delictoor by virtue of a"hot pursuit."
3. There are violations of laws or ordinances which require
compliance with the barangayconciliation proceedings srcinally provided for
under Presidential Decree 1508 and now under R.A. 7160 (Local Government
Code). Compliance with the procedure set by these proceedings will set in
motion the initial contact of the parties with the criminal justice system.
R.A. 7160 establishes the rule that the referral of a case to the
Lupon for
conciliation or settlement is required before a complaint, petition or action is
filed in court. The invocation of judicial authority shall be allowed only if a
certification is issued by the proper
barangayofficial that judicial intervention
may
CHAPTER I 45
PRELIMINARY CONSIDERATIONS

now be availed of because the desired conciliation or settlement was not


reached or when after a settlement previously forged was repudiated by a
party. With the certification to file action, the case is now said to be ripe for
filing in court.
4. Not all cases however, require
barangay conciliation. In those
cases beyond the ambit of the barangay conciliation process or where for
instance, the penalty prescribed by law for the allege offense is at least four (4)
years, two (2) months and one (1) day, the rules on criminal procedure begin to
grind when a complaint in affidavit form is filed before an authorized officer for
the purpose of conducting a preliminary investigation, an inquiry aimed at
determining whether a crime has been committed and that the person
complained of is probably guilty thereof and hence, must be held for trial.
Under current rules, the filing of a complaint for the purpose of conducting the
requisite preliminary investigation is a way of instituting a criminal action.
After the required preliminary investigation has been completed, the
investigating prosecutor may either recommend the dismissal of the complaint
or the filing of an information in court with an accompanying resolution to that
effect prepared by the prosecutor. Such resolution is subject to further action
by a higher officer in the prosecution hierarchy without whose written
authority or approval no complaint or information may be filed
dismissed
or by
an investigating prosecutor. Such action may be further reviewed by the Sec-
retary of Justice in accordance with the Rules of Court and existing DOJ rules on
appeal. The Secretary may reverse or modify the resolution of the provincial or
city prosecutor or of the chief state prosecutor.
5. There are cases which do not require a preliminary investigation
because the penalty is less than four (4) years, two (2) months and one (1) day.
In these cases, the complaint or information may be filed directly with the
Municipal Trial Court and such filing, pursuant to the Rules, is one of the rec-
ognized ways of instituting a criminal action. The Municipal Trial Court may
dismiss the same for lack probable
of cause
46 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

after an evaluation of the evidence consisting of the affidavits and other


supporting documents of the complainant and his witnesses or after following
the process required in the examination of the complainant and his witnesses.
If the court finds probable cause, the court shall issue a warrant of arrest or a
commitment order if the accused has already been previously taken into

custody although the judge may issue summons instead of a warrant of arrest
if the judge is satisfied that there is no necessity for placing the accused in
custody.
In places like Manila and other chartered cities which require that the
complaint be filed directly with the prosecutor, the said officer shall act on the
complaint based on the supporting affidavits and other supporting documents
submitted by the complainant and his witnesses. The prosecutor may either
dismiss the complaint or file the complaint or information in court.
6. The initial contact with the law may also occur when a person is
lawfully arrested without a warrant either by a peace officer or by a private
person. The arrest is deemed lawful when, for instance, the person arrested
has committed, was actually committing or was attempting to commit a crime
in the presence of the person effecting the arrest at the time the arrest was
made. The arrest is likewise lawful when the arrest was made after a crime has
just been committed and the person making the arrest has personal
knowledge of facts and circumstances which engenders in him a belief that
there is probable cause that the person to be arrested has committed the
offense. In any of the cited grounds for a warrantless arrest, the rule mandates
that the person arrested shall without delay be delivered to the nearest police
station or jail.
When the accused is lawfully arrested without a warrant, he shall not, as
a rule, undergo a preliminary investigation even if under the Rules, the offense
involves a penalty which normally would require such investigation. The
complaint or information may nevertheless, be filed by the prosecutor after an
inquest has been conducted. Where an inquest prosecutor is not available, the
complaint may be filed by the
CHAPTER I 47
PRELIMINARY CONSIDERATIONS

offended party or a peace officer directly with the court on the basis of the
affidavit of the party or arresting officer or person. Under existing rules of the
Department of Justice, the inquest prosecutor may, instead of filing the criminal
action, release the person for further proceedings. This occurs when for
instance, the prosecutor finds that the arrest made does not comply with the
rules on a valid arrest. The person arrested is then released to be notified later
on of a subsequent preliminary investigation.
The rule that a complaint or information may be filed against the person
lawfully arrested without need for a preliminary investigation is not absolute
because before such complaint or information is filed, the person arrested may
ask for aprelimina
ry investigation after validly signing a waiver
theofprovisions
of Art. 125 of the Revised Penal Code. Notwithstanding the waiver, he may
apply for bail even before he is charged in court.
Even after the filing of the complaint or information, the rule allows the
person arrested to ask for a preliminary investigation within five (5) days from
the time he learns of the complaint or information being filed and with the
same right to adduce evidence in his defense.
7. The wheels of the criminal justice system could also start grinding
when law enforcement authorities are in possession of information on possible
criminal activities. The authorities may initiate a search and a seizure by virtue
of a search warrant duly issued. The search and seizure may also be conducted
without a warrant under well-recognized exceptions to the rule requiring a
warrant. When the search yields property or effects constituting a crime or
subjects of a crime or are means to commit a crime, the appropriate criminal
action shall beinstituted
.

Filing of the information or complaint and other processes


1. A criminal action is commenced by the filing of a complaint or an
informati
on in court andshall be prosecuted
48 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

under the control and direction of the public prosecutor although in special
cases, a private prosecutor may be authorized in writing by the chief of the
prosecution office or the regional state prosecutor to prosecute the case
subject to the approval of the
court
2. The complaint or information is required by the Rules to be in writing.
The caption of a criminal case contains at least two names. The first name
refers to the party that brought the action and this party is denominated as the
"People of the Philippines." This is because a crime is deemed to have been
committed against the "People" and under whose name a crime must be
prosecuted. The second name refers to the person named as offender. He is
the party against whom the action is brought.
The complaint or information must state the name of the accused (or
under a fictitious name when his true name is alleged to be unknown), the
name of the offended party, the designation of the offense, the acts or
omissions constituting the offense, and the specific qualifying and aggravating
circumstances involved.
The complaint or information must also state the cause of the accusation
against the accused so he may know the offense for which he is charged and
also to enable the court to pronounce judgment. The cause of the accusation
necessarily includes the attendant qualifying and aggravating circumstances.
The date of the commission of the offense which need not be the precise date
unless the same is a material ingredient of the offense, shall be stated in the
complaint orinformation
.

Implied institution of the civil action


1. When the criminal action is instituted, the civil action for the recovery
of the civil liability arising from the offense charged shall also be deemed
instituted with the criminal action. However, when the offended party waives
the civil action, reserves the right to institute the same separately or institutes
the civil action prior to the criminal action, the civil action is not deemed
instituted with the criminal action.
CHAPTER I 49
PRELIMINARY CONSIDERATIONS

2. Also not deemed instituted are those civil actions which although
may arise from the same acts constituting the offense charged, are
denominated as independent civil actions because they do not legally arise
from the offense charged and are independent sources of liability.
3. After the criminal action has been commenced, the separate civil
action arising from the offense, cannot be instituted until final judgment has
been entered in the criminal action. Also, if the criminal action is filed after the
civil action has already been instituted, the civil action shall be suspended in
whatever stage it may be found. Independent civil actions however, are not
suspended and shall proceed independently of the criminal action.
4. The suspension of the civil action when the criminal action is
commenced does not also apply to a situation which poses a prejudicial
question. Instead, it is the criminal action which may be suspended upon a
proper petition on the ground of the existence of a prejudicial question. This
question exists when the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal
action and the resolution of such issue determines whether or not the criminal
action may proceed.

Availment of provisional remedies


When the complaint or information is filed and the civil action arising
from the offense charged is properly instituted in accordance with the Rules,
the offended party may avail of the provisional remedies available in civil
actions. For instance, the offended party may have the property of the accused
attached as security for the satisfaction of any judgment that may be recovered
from the accused when circumstances arise justifying the attachment as when
the criminal action is based on a claim for money or property embezzled by the
accused.

Bail
1. A person under the custody of the law may gain his release from
confinement by availing of the constitutional right to bail which may be given in
the form of corporate
50 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

surety, property bond, cash deposit, or recognizance. He may apply for bail
before or after he is formally charged and as a rule, the application shall be
made in the court where his case is pending but no bail shall be allowed after a
judgment of conviction has become final. If before such finality, the accused
applies for probation, he may be allowed temporary liberty under his bail.
2. It is not however, correct to assume that bail may be availed of
only after the filing of the complaint or information. A person in custody who is
not yet charged in court may apply for bail with any court in the province, city,
or municipality where he is held.
3. An application for bail shall not bar the accused from challenging
the validity of his arrest.
4. Bail may be a matter of right or a matter of judicial discretion. Even
a person charged with a capital offense may be allowed bail when evidence of
his guilt is not strong. That the evidence of guilt is strong is one which the
prosecution has the burden of proving.

Arraignment; bill of particulars; suspension of arraignment


1. Whether or not the accused is under detention or out on bail, the
court shall thereafter set the case for arraignment. Arraignment is the formal
mode and manner of implementing the constitutional right of an accused to
be informed of the nature and cause of the accusation against him. Without
arraignment, the accused is not deemed to have been informed of such
accusation. If before his arraignment, the accused escapes, the court has no
authority to try him
in absentia.
2. The accused is to be arraigned before the court where the
complaint or information was filed or assigned for trial. It is made in open court
by the judge or clerk and consists of furnishing the accused with a copy of the
complaint or information and the reading of the same in a language he
understands. He is then asked whether he pleads guilty or not guilty.
3. During the date set for arraignment, the accused need not enter
his plea outrightly because before the arraign
CHAPTER I 51
PRELIMINARY CONSIDERATIONS

ment and plea the accused has several options. The accused may move for a
bill of particularsif there are defects in the information or complaint which
prevent him from properly pleading to the charge and preparingfor trial. He
may also move for the when justifiable reasons
suspension of the arraignment
do exist for its suspension as when among others, the accused appears to be
suffering from an unsound mental condition which effectively renders him
unable to fully understand the charge against him and to plead intelligently
thereto. The accused may likewise, at any time before enteringmove his plea,
to quash, i.e.,to dismiss the complaint or information.

Quashal of complaint or information


An accused may move to quash the complaint or information on any of
the grounds provided for by the Rules. For instance, he may move to quash on
the ground that the facts charged do not constitute an offense or that the court
trying the case has no jurisdiction over the offense charged or over the person
of the accused. A motion to quash is a written motion signed by the accused or
his counsel which is supposed to distinctly specify both its factual and legal
grounds. The motion is filed before the accused enters his plea. If the complaint
or information is not dismissed or quashed, and a subsequent plea of not guilty
is entered, the machinery of the criminal justice system shall proceed to its
natural course.

Pre-trial
1. After the arraignment of the accused and within thirty (30) days
from the date the court acquires jurisdiction over the accused, the court shall
order the mandatory trial conference to consider certain matters including plea
bargaining, stipulation of facts, the marking of the evidence, the waiver of
objections to admissibility, a possible modification of the order of the trial and
such other matters that will help promote a fair and expeditious trial of the
criminal and civil aspects of the case.
2. After the pre-trial conference, the court shall issue an order reciting
the actions taken, the facts stipulated and
52 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

the evidence marked. The pre-trial order shall bind the parties, limit the trial to
matters not disposed of, and control the course of the action during the trial,
unless modified to prevent manifest injustice. All agreements or admissions
made or entered during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise, they cannot be used

against the accused.


Trial; demurrer
1. Within thirty (30) days from the receipt of the pretrial order, trial
shall commence. The rule is that once the trial is commenced, it shall continue
from day to dayas far aspracticable until term
inated but it may be
postponed
for a reasonable period of time for good cause.
2. Normally, the trial begins with the prosecution presenting its
evidence but when the accused admits the act or omission charged but
interposes a lawful defense, the order of trial may be modified.
3. When the prosecution rests its case, the accused may now
present his evidence to prove his defense and the damages he may have
sustained arising from any provisional remedy issued in the case. However, the
accused may, instead of presenting his evidence, opt to move to dismiss the
case by presentingdemurrer
a to evidenceon the ground of insufficiency of
evidence. This demurrer may be presented with or without leave of court. The
court may, for the same reason, dismiss the case on its own initiative after
giving the prosecution the opportunity to be heard.
If the demurrer filed with leave of court is denied, the accused may
adduce evidence in his defense but shall waive the right to present evidence if
the demurrer to evidence filed without leave of court is denied.
The prosecution and the defense may, in the same order present
rebuttal and sur-rebuttal evidence. Upon admission of the evidence of the
parties, the case shall be deemed submitted for decision unless the court
directs them to argue orally or to submit written memoranda.
CHAPTER I 53
PRELIMINARY CONSIDERATIONS

Judgment
1. After trial, the judgment of the court shall follow. A judgment is the
adjudication by the court on the guilt or innocence of the accused and the
imposition on him of the proper penalty and civil liability, if any. It is required to
be written in the official language, personally and directly prepared by the

judge and signed


the facts and thebylaw
him upon
and shall contain
which it isclearly
based. and distinctly a statement of
2. The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered unless it is for a
light offense in which case the judgment maybe pronounced in the presence of
his counsel or representative.

Post-judgment remedies
1. Before the judgment of conviction becomes final or before an
appeal is perfected, the accused may file a motionmodification
for the of the
judgment or for the setting aside of the same.
2. Also, at any time before the judgment of conviction becomes final,
the accused may move for a trialor areconsideration.A motion for new
new
trial shall be predicated upon errors of law or irregularities during the trial and
the discovery of new or material evidence. Within the same period, a motion
for reconsideration may also be filed on the grounds of errors of law or fact in
the judgment. The court also may, on its own motion with the consent of the
accused, grant a new trial or reconsideration.
3. Before the finality of the judgment, the accused may also appeal
from a judgment of conviction in accordance with the procedure set forth in
the Rules. Notwithstanding the perfection of the appeal, the court may allow
the appellant, upon proper motion to withdraw the appeal already perfected
before the record has been forwarded by the clerk of court to the proper
appellate court. An appeal may even be withdrawn upon proper motion of the
appellant before the rendition of the
54 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

judgment of the case on appeal in which case the judgment of the court of
srcin shall become final and the case shall be remanded to the latter court for
execution of the judgment.
4. Cases decided by the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court or the Municipal Circuit Trial Court shall be
appealed to the Regional Trial Court. Cases decided by the Regional Trial Court
shall be appealable either to the Court of Appeals or to the Supreme Court in
the proper cases provided for by law. Cases decided by the Court of Appeals or
the Sandiganbayan shall be appealable to the Supreme Court.
5. The appeal to the Regional Trial Court, or to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its srcinal
jurisdiction, shall be by notice of appeal filed with the court which rendered the
judgment or final order appealed from.
6. The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by
petition for review under Rule 42.
7. The appeal in cases where the penalty imposed by the RTC is
reclusion perpetuaor life imprisonment, shall be by notice of appeal to the
Court of Appeals in accordance with Rule 122. A review of the case by the
Court of Appeals is necessary before the same is elevated to the Supreme

Court.
8. Decisions and final orders of the Sandiganbayan shall be
appealable to the Supreme Court by petition for review on in
certiorari
accordance with Rule 45 of the Rules of Court.

Entry of judgment
When all remedies have been exhausted and the judgment has become
final, the same shall be entered in accordance with existing rules.

- oOo -
Chapter II

PROSECUTION OF OFFENSES (Rule 110)


I. INSTITUTION OF CRIMINAL ACTIONS

Purpose of a criminal action


The purpose of a criminal action, in its purest sense, is 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. In this sense, the parties to the action
are the People of the Philippines and the accused. The offended party is
regarded merely as a witness for the (Heirsstate of Sarah Marie Palma
Burgos v. Court of Appeals, 169711, February 8, 2010).
How criminal actions are instituted (Bar 1999)
1. The institution of a criminal action generally depends upon
whether or not the offense is one which requires a preliminary investigation
(Sec. 1, Rule 110, Rules of Court).

Where a preliminary investigation is required, a criminal action is


instituted by filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation
(Sec. 1, Rule 110, Rules of
Court).
2. Where a preliminary investigation is not required, a criminal action
is instituted in either of two ways:
(a) by filing the complaint or information directly
with the Municipal Trial Court and Municipal Circuit
Trial Court; or

55
56 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

(b) by filing the complaint with the office of the


prosecutor(Sec. 1, Rule 110, Rules of Court).

Institution of criminal actions in Manila and other chartered cities


In Manila and other chartered cities, a special rule prevails. In these
places, the rule is that "the complaint shall be filed with the office of the
prosecutor unless otherwise provided in their charters"
(Sec. 1, Rule 110,
Rules of Court).

No direct filing in the Regional Trial Court and Metropolitan Trial Court of
Manila and other chartered cities
1. There is no direct filing of an information or complaint with the
Regional Trial Court
under Rule 110because its jurisdiction covers offenses
which require preliminary investigation.
A preliminary investigation is to be conducted for offenses where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1)
day (Sec. 1, Rule 112, Rules of Court).
The Regional Trial Court has jurisdiction
over an offense punishable with imprisonment of more than six (6) years, a
period way above the minimum penalty for an offense that requires a
preliminary investigation. On the other hand the Municipal Trial Court has
exclusive jurisdiction over offenses punishable with imprisonment not
exceeding six (6) years
(Sec. 32[2], Judiciary Reorganization Act of 1980 [B.P.
129]). Note: Please refer however, to the last sentence of the first
paragraph of Sec. 6 of Rule 112.
2. There is likewise no direct filing with the Metropolitan Trial Court
of Manila because in Manila, including other chartered cities, the complaint, as
a rule, shall be filed with the office of the prosecutor, unless otherwise
provided by their charters Although in
(Sec. 1, Rule 110, Rules of Court).
Manila and other chartered cities the complaint shall be filed with the office of
the prosecutor, in case of a conflict between a city charter and a provision of
the Rules of Court, the former, being substantive law, shall prevail.
CHAPTERII 57
PROSECUTION OF OFFENSES
(Rule 110)

Effect of the institution of the criminal action on the pre-


scriptive period (Bar 1993)
The present rule categorically provides that the "in-
stitution of the criminal action shall interrupt the period of
prescription of the offense charged
unless otherwise provided
9
in special laws (Sec. 1, Rule 110, Rules of Court; italics sup-
plied).
Since one way of instituting a criminal action is by filing a
complaint with the proper officer for the purpose of conducting
the requisite preliminary investigation for offenses where
a preliminary investigation is required
(Sec. l[a], Rule 110,
Rules of Court),the filing of the complaint with the proper
officer for such purpose, would, under the Rules of Court,
interrupt the period of prescription.exception
The is when a
different rule is provided for in special laws.
For offenses where a preliminary investigation is not
required, the filing of the information or complaint directly
with the Municipal Trial Courts and Municipal Circuit Trial
Courts, or with the office of the prosecutor, shall likewise
interrupt the period of prescription of the offense charged
because it is a mode by which a criminal action is instituted
under Sec. 1 of Rule 110,
unlessof course, there be a special
law which provides otherwise.
In Manila and other chartered cities, the filing of the
complaint with the office of the prosecutor shall also operate
to interrupt the period of prescription of the offense charged,
unless also provided otherwise in special laws.

Illustration of the above rules


1. One case which is illustrative of the rule on the effect
of the institution of the criminal action on the prescriptive
period of the offense charged is v. Bautista, G.R. No.
People
168641, April 27, 2007,a case involving physical injuries.
Here, the Supreme Court did not agree with the view of the
Court of Appeals and of the respondent that upon approval of
the investigating prosecutor's recommendation for the filing of
58 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

an information against respondent, the period of prescription began to run


again. It is a well-settled rule, declared by the Court, that the filing of the
complaint with the fiscal's office suspends the running of the prescriptive
period. The proceedings against respondent were not terminated upon the
City Prosecutor's approval of the investigating prosecutor's recommendation
that an information be filed with the court. The prescriptive period remains
tolled from the time the complaint was filed with the Office of the Prosecutor
until such time that respondent is either convicted or acquitted by the proper
court.
2. The issue as to when the prescriptive period of an offense is
interrupted has been the subject of various contending views interpreting
some laws relating to prescription particularly Articles 90 and 91 of the Revised
Penal Code and Act No. 3326 as amended.
3. The diversity of opinions started with the interpretation of Article
91 of the Revised Penal Code which partly provides:

"x x x The period of prescription shall commence to run . . .


and shall be interrupted by the filing of the complaint or
information..."

The early case ofPeople v. Tayco, 73 Phil. 509, ruled that the
'complaint' or 'information' referred to in Art. 91 is the one filed in the proper
court and not thedenunciaor accusation lodged by the offended party before
the fiscal's office or with the justice of the peace court for preliminary
investigation(See also People v. del Rosario, L-15140, December 29,1960;
People v. Coquia, L-15456, June 29, 1963 and cited in Francisco v. Court of
Appeals, 122 SCRA 538).
Arrayed against the rulingTayco
in are the opposite views expressed in
various decisions (People v. Uba, L-131106, October 16, 1959; People v.
Aquino, 68 Phil. 588) which consider the filing of the complaint before the
ustice of the peace (municipal judge) for preliminary investigation as sufficient
to interrupt the prescriptive period for the offense.
CHAPTER II 59
PROSECUTION OF OFFENSES
(Rule 110)

Tayco was not followed in the subsequent case of v. Olarte,


People
L-13027, June 30 1960,where the Court ruled that the filing of the complaint
with the justice of the peace for preliminary investigation interrupted the
running of the statute of limitations. In the otherPeople
case ofv. Olarte, G.R.
the rule became more clear.
No. L-22465, February 28,1967,

The Court in Olartegave the following justifications for its ruling: First, the
words "shall be interrupted by the filing of the complaint or information," does
not distinguish whether the complaint is filed in court merely for preliminary
investigation or for "action on the merits;" Second, the filing of the complaint
for preliminary investigation already represents the initial step of the
proceedings against the offender; Third, it is unjust to deprive the injured party
of the right to obtain vindication on account of delays that are not under his
control.
The pronouncements in Olarte were subsequently confirmed in
to be the "true doctrine." Thus,
Francisco v. Court of Appeals, 122 SCRA 538,
the filing of a
denunciaor complaint for intriguing against honor, changed later
to grave oral defamation, even in the fiscal's office interrupts the period of
prescription. Quoting
Olarte,the Court in
Franciscoheld that after reexamining
the question and after mature consideration, the Court has arrived at the
conclusion that:
. .the true doctrine is, and should be, the one established by decisions
holding that the filing of the complaint in the Municipal Court, even if it be merely
for purposes of preliminary examination or investigation, should, and does
interrupt the period of prescription of the criminal responsibility, even if the court
where the complaint or information is filed cannot try the case on its merits."

Rule on prescription for violations of special laws and municipal ordinances


1. Act No. 3326 as amended, is the law which governs the period for
prescription for violations penalized by special acts and municipal ordinances.
Zaldivia v. Reyes, 211 SCRA 277, a case involving an offense punishable
by a municipal ordinance , held that when
60 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

Act No. 3326 says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty person," the proceedings referred
to are "judicial proceedings" and not administrative proceedings.
Accordingly, the prescriptive period in these cases is governed by Act No.
3326 and is interrupted only by the institution of judicial proceedings because
Sec. 2 of the law provides that prescription begins from the commission of the
crime or from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment.Zaldiviafurther declared that if there be
a conflict between Act No. 3326 and Rule 110 of the Rules of Court, the latter
must yield because the Court, in the exercise of its rule-making power, is not
allowed to "diminish, increase or modify substantive rights" under the
Constitution and that"... Prescription in criminal cases is a substa
ntive right."
2. Recent cases however, appear not to strictly adhere to the line toed
by Zaldiviain cases involving violations of special laws.
For instance,Sanrio Company Limited v. Lim, G.R. No. 168662,
February 19, 2008,a case involving a violation of the Intellectual Property
Code, a special law, ruled differentlyZaldivia.
from
The case involves as the petitioner, Sanrio Company Limited, a Japanese
corporation which owns the copyright of various animated characters such as
"Hello Kitty," "Little Twin Stars," "My Melody," "Tuxedo Sam" and
"Zashikibuta" among others. While it is not engaged in business in the
Philippines, its products are sold locally by its exclusive distributor, Gift Gate
Incorporated (GGI).
Sometime in 2001, due to the deluge of counterfeit Sanrio products, GGI
asked IP Manila Associates (IPMA) to conduct a market research. The
research's objective was to identify those factories, department stores and
retail outlets manufacturing and/or selling fake Sanrio items. After conducting
several test-buys in various commercial areas, IPMA confirmed
CHAPTERII 61
PROSECUTION OF OFFENSES
(Rule 110)

that Respondent's Orignamura Trading in Tutuban Center, Manila was selling


imitations of petitioner's products. Upon application by the petitioner, a search
warrant was duly issued. On the same day the warrant was issued, agents of
the NBI searched the premises of Orignamura Trading and seized various
Sanrio products.
The petitioner, Sanrio filed a complaint-affidavit with the Task-Force on
Anti-Intellectual Property Piracy (TAPP) of the Department of Justice (DOJ)
against Respondent for violation of Section 217 (in relation to Sections 177 and
178) of the Intellectual Property Code (IPC). The TAPP dismissed the complaint
due to insufficiency of evidence.
The petitioner's subsequent motion for reconsideration was denied.
Hence, it filed a petition for review in the Office of the Chief State Prosecutor of
the DOJ. The Office of the Chief State Prosecutor affirmed the TAPP's resolution
and the petition was dismissed for lack of reversible error.
Aggrieved, the petitioner filed a petition for
certiorari in the Court of
Appeals which likewise dismissed the petition among others, on the ground of
prescription. It based its action on Sees. 1 and 2 of Act 3326 which state:

Section 1. Violations penalized by special acts shall, unless otherwise


provided in such acts, prescribe in accordance with the following rules: (a) after a
year for offenses punished only by a fine or by imprisonment for not more than
one month, or both; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) after eight years for those
punished by imprisonment for two years or more, but less than six years; and (d)
after twelve years for any other offense punished by imprisonment for six years or
more, except the crime of treason, which shall prescribe after twenty years;
Provided, however,That all offenses against any law or part of law
administered by the Bureau of Internal Revenue shall prescribe after five years.
Violations penalized by municipal ordinances shall prescribe after two months.
62 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Section 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same may not be known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings are
(underscoring for em-
dismissed for reasons not constituting jeopardy,
phasis supplied).

The Court of Appeals ruled that because no complaint was filed in court
within two years after the commission of the alleged violation, the offense had
already prescribed.
The petitioner disagreed, and in the Supreme Court, petitioner averred
that the Court of Appeals erred in concluding that the alleged violations of the
Intellectual Property Code (IPC) had prescribed because it had actually filed a
complaint with the corresponding Task Force of the DOJ. It contended that said
filing tolled the running of the prescriptive period for the offense.
The Supreme Court found the contention meritorious. It likewise
confirmed that under Section 2 of Act 3326, the prescriptive period for
violation of special laws starts on the day such offense was committed and is
interrupted by the institution of proceedings against respondent
(i.e., the
accused). It also found that the petitioner in this instance filed its
complaint-affidavit with the TAPP of the DOJ before the alleged violation had
prescribed. The Court categorically ruled that the prescriptive period for the
prosecution of the alleged violation of the IPC was tolled by petitioner's timely
filing of the complaint-affidavit before the TAPP.
3. InPanaguiton, Jr. v. DOJ, G.R. No. 167571, November 25, 2008,
the
issue raised was whether or not the filing of a complaint for violation of B.P.
Big. 22 before the Office of the Prosecutor interrupts the running of the
prescriptive period for the offense. Here, the Assistant City Prosecutor dis
CHAPTER II 63
PROSECUTION OF OFFENSES
(Rule 110)

missed the complaint against the respondent because the case had already
prescribed pursuant to Act No. 3326, as amended, which provides that
violations of laws as those penalized by B.P. Big. 22 shall prescribe after four (4)
years. Accordingly, the four (4)-year period started on the date the checks were
dishonored and the filing of the complaint before the Quezon City Prosecutor
did not interrupt the running of the prescriptive period, as the law
contemplates judicial, and not administrative proceedings. Thus, considering
that more than four (4) years had already elapsed from the dishonor of the
check and no information had as yet been filed against the respondent, the
alleged violation of B.P. Big. 22 imputed to him had already prescribed.
The DOJ affirmed the resolution of the Assistant City Prosecutor and held
in favor of the respondent. Subsequently, the DOJ, this time through the
Undersecretary, ruled in favor of the petitioner/complainant declaring that the
offense had not prescribed and that the filing of the complaint with the
prosecutor's office interrupted the running of the prescriptive period. Thus, the
Office of the City Prosecutor of Quezon City was directed to file three (3)
separate informations against the respondent for violation of B.P. Big. 22. The
informations were filed. Later, the DOJ, presumably acting on a motion for
reconsideration filed by the respondent, ruled that the subject offense had
already prescribed and ordered the withdrawal of the three (3) informations
for violation of B.P. Big. 22. In justifying its sudden turnabout, the DOJ explained
that Act No. 3326 applies to violations of special acts that do not provide for a
prescriptive period for the offenses thereunder. Since B.P. Big. 22, as a special
act, does not provide for
the prescription of the offensedefines
it and punishes,
Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which gov-
erns the prescription of offenses penalized thereunder. The DOJ also cited the
case ofZaldivia v. Reyes, Jr., 211 SCRA 277,
wherein the Supreme Court ruled
that the proceedings referred to in Act No. 3326, as amended, are judicial
proceedings, and not the one before the prosecutor's office.
64 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Aggrieved, the petitioner then filed a petition for before the


certiorari
Court of Appeals assailing the latest resolution of the DOJ but the petition was
dismissed by the Court of Appeals on technical grounds. In the Supreme Court,
the DOJ reiterated its earlier argument that the filing of a complaint with the
Office of the City Prosecutor of Quezon City did not interrupt the running of
the prescriptive period for violation of B.P. Big. 22. It argued that under B.P. Big.
22, a special law which does not provide for its own prescriptive period,
offenses prescribe in four (4) years in accordance with Act No. 3326. The
respondent also claimed that the offense of violation of B.P. Big. 22 has already
prescribed per Act No. 3326.
On the other hand the petitioner assailed the DOJ's reliance on
Zaldivia
v. Reyes, a case involving the violation of a municipal ordinance, in declaring
that the prescriptive period is tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case Ingcois v.
Sandiganbayan, 338 Phil. 1061, wherein the Supreme Court ruled that the
filing of the complaint with the fiscal's office for preliminary investigation
suspends the running of the prescriptive period. Petitioner also noted that the
Ingco case similarly involved the violation of a special law, Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
In resolving the issue, the Court declared:

XXX
We agree that Act. No. 3326 applies to offenses under B.P. Big. 22. An
offense under B.P. Big. 22 merits the penalty of imprisonment of not less than
thirty (30) days but not more than one year or by a fine, hence, under Act No.
3326, a violation of B.P. Big. 22 prescribes in four (4) years from the commission of
the offense or, if the same be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only the filing of a case in court
can toll the
runningof the prescriptive period.
CHAPTER II 65
PROSECUTION OF OFFENSES
(Rule 110)

The Court also explained, that when Act No. 3326 was passed,
preliminary investigation could be conducted by justices of the peace, thus, the
phraseology in the law, "institution of judicial proceedings for its investigation
and punishment x x x."
We rule and so hold that the offense has not yet prescribed. Petitioner's
filing of his complaint-affidavit before the Office of the City Prosecutor x x x
signified the commencement of the proceedings for the prosecution of the
accused and thus, effectively interrupted the prescriptive period for the offenses
they had been charged under

4. A significant pronouncement which confirms the rule that the filing of


a complaint for purposes of preliminary investigation interrupts the period of
prescription of criminal responsibility, was made by the Court in the
SECcase of
v. Interport Resources Corporation, G.R. No. 135808, October 6,
2008.
This case relates to a Petition for Review on under Rule 45 of
Certiorari
the Rules of Court, assailing the Decision of the Court of Appeals enjoining the
Securities and Exchange Commission (SEC) from taking cognizance of or
initiating any action against the respondent corporation, Interport Resources
Corporation (IRC) and members of its board of directors with respect to
Sections 8, 30 and 36 of the Revised Securities Act.
Respondents have taken the position that this case is moot and
academic, since any criminal complaint that may be filed against them resulting
from the SEC's investigation of this case has already prescribed. They point out
that the prescription period applicable to offenses punished under special laws,
such as violations of the Revised Securities Act, is twelve years under Section 1
of Act No. 3326, as amended by Act No. 3585 and Act No. 3763, entitled "An
Act to Establish Periods of Prescription for Violations Penalized by Special Acts
and Municipal Ordinances and to Provide When Prescription Shall Begin to
Run." Since the offense was committed in 1994, they reasoned that
prescription set in as early as 2006 and rendered this case moot.
66 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Ruling against the respondent, the Court held it to be an established


doctrine that a preliminary investigation interrupts the prescription period. A
preliminary investigation is essentially a determination whether an offense has
been committed, and whether there is probable cause for the accused to have
committed an offense. Under Section 45 of the Revised Securities Act, which is
entitled Investigations, Injunctions and Prosecution of Offenses , the
Securities and Exchange Commission (SEC) has the authority to "make such
investigations as it deems necessary to determine whether any person has
violated or is about to violate any provision of the law. After a finding that a
person has violated the Revised Securities Act, the SEC may refer the case to
the DOJ for preliminary investigation and prosecution."
The Court added that while the SEC investigation serves the same
purpose and entails substantially similar duties as the preliminary investigation
conducted by the DOJ, this process cannot simply be disregarded. The Court
further ruled that a criminal charge for violation of the Securities Regulation
Code is a specialized dispute. Hence, it must first be referred to an
administrative agency of special competence,
i.e., the SEC. Under the doctrine
of primary jurisdiction, courts will not determine a controversy involving a
question within the jurisdiction of the administrative tribunal, where the
question demands the exercise of sound administrative discretion requiring
the specialized knowledge and expertise of said administrative tribunal to

determine Regulation
Securities technical and intricate
Code matterslaw.
is a special of fact.
Its The Court observed
enforcement that the
is particularly
vested in the SEC. Hence, all complaints for any violation of the Code and its
implementing rules and regulations should be filed with the SEC. Where the
complaint is criminal in nature, the SEC shall indorse the complaint to the DOJ
for preliminary investigation and prosecution as provided in Section 53.1.
Indubitably, declared succinctly by the Court, the prescription period is
interrupted by commencing the proceedings for the prosecution of the
accused. In criminal cases, this
CHAPTER II 67
PROSECUTION OF OFFENSES
(Rule 110)

is accomplished by initiating the preliminary investigation. The prosecution of


offenses punishable under the Revised Securities Act and the Securities
Regulations Code is initiated by the filing of a complaint with the SEC or by an
investigation conducted by the motuSEC proprio.Only after a finding of
probable cause is made by the SEC can the DOJ instigate a preliminary
investigation. Thus, the investigation that was commenced by the SEC, soon
after it discovered the questionable acts of the respondents, effectively
interrupted the prescription period. Given the nature and purpose of the
investigation conducted by the SEC,
which is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, such investigation
would surely interrupt the prescription period.
Note that the cases Sanrio,
of Panaguitonand SEC, cited above all
involved violations of special laws. Uniformly in these cases, the Court had
declared that the filing of the affidavit of complaint for preliminary investigation
interrupted the running of the prescriptive period.

II. PROSECUTION OF THE CRIMINAL ACTION


Who must prosecute the criminal action; who controls the prosecution (Bar
1990; 2000)
1. A criminal action is prosecuted under the direction and control of
the public prosecutor. This is the general rule and this applies to a criminal
(Sec. 5, Rule 110,
action commenced either by a complaint or an information
Rules of Court; Uy v. People, G.R. No. 174899, September 11,2008).
All criminal actions covered by a complaint or information shall be
prosecuted under the direct supervision and control of the public prosecutor
(Ricarze v. Court of Appeals, G.R. No. 160451, February 9, 2007; Adasa v.
Abalos, G.R. No. 168617 February 19, 2007). Even if there is a private
prosecutor, the criminal action is still prosecuted under the direction and
control of the public prosecutor.
2. The rationale for the rule that all criminal actions shall be
prosecuted under the direction and control of a public
68 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

prosecutor is that since a criminal offense is an outrage against the sovereignty


of the State, it necessarily follows that a representative of the State shall direct
and control the prosecution thereof(Chua v. Padillo, G.R. No. 163797, April
24,2007). The mandate that all criminal actions, either commenced by a
complaint or information shall be prosecuted under the direction and control
of a public prosecutor, is founded on the theory that a crime is a breach of the
security and peace of the people at large, an outrage against the very
sovereignty of the State
(Baviera v. Paglinawan, G.R. No. 168380, February
8,2007).

Appearance of a private prosecutor


1. The appointment of a private prosecutor is done by the offended
party and is the mode by which the latter intervenes in the prosecution of the
offense. This intervention is however, only allowed where the civil action for
the recovery of the civil liability is instituted in the criminal action pursuant to
Rule 111(Sec. 16, Rule 110, Rules of Court).
2. Hence, the offended party may not intervene the
inprosecution of
the offense through a private prosecutor if the offended party (a) waives the
civil action, (b) reserves the right to institute it separately, or (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
1. The institution of an independent civil action does not deprive the
offended party of the right to intervene in the civil action through a private
prosecutor.
2. Under Sec. 1 of Rule 111 of the 2000 Rules of Criminal Procedure,
"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 ..
CHAPTER II 69
PROSECUTION OF OFFENSES
(Rule 110)

3. Note however, that pursuant to said provision, only the civil liability
of the accusedarising from the offense charged is deemed impliedly
instituted in a criminal action, unless the offended party waives the civil action,
reserves the right to institute it separately, or institutes it prior to the criminal
action. Those not arising from the offense charged like the independent civil
actions referred to in Arts. 32, 33, 34 and 2176 of the Civil Code are not deemed
instituted with the criminal action. These actions, according to Sec. 3 of Rule
111 of the Rules of Court shall proceed independently of the criminal action.
Thus, the 2000 Rules of Criminal Procedure deleted the requirement of
reserving independent civil actions and allowed these to proceed separately
from criminal actions because they are separate, distinct and independent of
any criminal prosecution even if based on the same act which also gave rise to
the criminal action.
4. Thus, it was ruled that as one of the direct consequences of the
independent character of actions brought under Arts. 32,33,34 and 2176 of the
Civil Code, even if a civil action is filed separately, "the civil liability in
ex delicto
the criminal prosecution remains, and the offended party — subject
may to the
control of the prosecutor— still intervene in the criminal action, in order to
protect the remaining civil interest therein"(Philippine Rabbit Bus Lines v.
People, G.R. No. 147703, April 14,2004).

Consequences of the rule that a criminal action is prosecuted under the


direction and control of the public prosecutor
1. The public prosecutor, in the exercise of his functions, has the power
and discretion to: (a) determine whether a facie case exists, (b) decide
prima
which of the conflicting testimonies should be believed free from the
interference or control of the offended party, and (c) subject only to the right
against self-incrimination, determine which witnesses to present in court.
The public prosecutor may
(Chua v. Padillo, G.R. No. 163797, April 24, 2007).
turn over the actual prosecution of the criminal case to the private prosecutor,
in the exercise of his discretion, but he may at any time, takl*
70 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

over the actual conduct of the (People


trial v. Tan, G.R. No. 177566, March
26,2008).
The executive department of the government is accountable for the
prosecution of crimes. The right to prosecute vests the prosecutor with a wide

range of discretion,
exercise of which the discretion
depends on offactors
whether, whatare
which and best
whomappreciated
to charge, the
by
prosecutors(Gonzalez v. Hongkong & Shanghai Banking Corporation, G.R.
No. 164904, October 19,2007).
2. The power to prosecute includes the initial discretion to determine
who should be utilized by the government as a state (People
witness v.
Fajardo, 512 SCRA 360, January 23, 2007).
3. The prosecution is also entitled to conduct its own case and to
decide what witnesses to call to support its charges. The non-presentation of a
witness by the prosecution cannot be construed as suppression of evidence
where the testimony is merely corroborative (Ritualo v. People, G.R. No.
178337, June 25, 2009).
4. Not even the Supreme Court can order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to
support at leastprima
a faciecase— the only possible exception to the rule is
where there is an unmistakable showing of grave abuse of discretion on the
part of the prosecutor
(Chua v. Padillo, G.R. No. 163797, April 24,2007).
5. In one case, three informations were filed against the petitioner
before the Regional Trial Court (RTC) of Pasig City.
One information pertains to allegations that petitioner employed
manipulative devises in the purchase of Best World Resources Corporation
(BW) shares. The other informations involve the alleged failure of petitioner to
file with the Securities and Exchange Commission (SEC) a sworn statement of
his beneficial ownership of BW shares.
d.- Petitioner was arraigned and pleaded not guilty to the charges.
CHAPTER II 71
PROSECUTION OF OFFENSES
(Rule 110)

Subsequently, the trial court ruled that the delays which attended the
proceedings of one of the petitioner's cases were vexatious, capricious and
oppressive, resulting in violation of the petitioner's right to speedy trial and
hence, ordered its dismissal. The dismissal was later on reversed by the Court

of Appeals and reinstated the. case previously dismissed.


Petitioner moved for a reconsideration of the decision of the Court of
Appeals and filed a motion for inhibition of the Justices who decided the case
but both motions were denied.
The petitioner hence, filed a petition for review on , raising
certiorari
among others the issue that the certificate of non- forum shopping attached to
the People's petition for
certioraribefore the Court of Appeals should have
been signed by the Chairman of the SEC as complainant in the cases instead of
Acting DOJ Secretary Merceditas N. Gutierrez.
The Court found the petitioner's argument futile holding that the Court
of Appeals was correct in sustaining the authority of Acting DOJ Secretary
Merceditas Gutierrez to sign the certification. The Court went on to say that it
must be stressed that the certification against forum shopping is required to be
executed by the plaintiff. Although the complaint-affidavit was signed by the
Prosecution and Enforcement Department of the SEC, the petition before the
Court of Appeals srcinated from Criminal Case No. 119830, where the plaintiff

or the
Rule 110party instituting
of the Rules ofthe caseleaves
Court was the Peopleforofdoubt
no room the Philippines. Section
and establishes that2,
criminal cases are prosecuted in the name of the People of the Philippines, the
offended party in criminal cases. Moreover, pursuant to Section 3, paragraph
(2) of the Revised Administrative Code, the DOJ is the. executive arm of the
government mandated to investigate the commission of crimes, prosecute
offenders and administer the probation and correction system. It is the DOJ,
through its prosecutors, which is authorized to prosecute criminal cases on
behalf of the People of the Philippines. Prosecutors control and direct the
prosecution of criminal offenses, including the conduct of preliminary
investigation, subject to
72 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

review by the Secretary of Justice. Since it is the DOJ which is the government
agency tasked to prosecute criminal cases before the trial court, the DOJ is best
suited to attest whether a similar or related case has been filed or is pending in
another court or tribunal. Acting DOJ Secretary Merceditas N. Gutierrez, being
the head of the DOJ, therefore, had the authority to sign the certificate of
non-forum shopping for the criminal case which was filed on behalf of the
People of the Philippines
(Tan v. People, G.R. No. 173637, April 21, 2009).
6. In a case, the accused argues that he can no longer be charged
because he was left alone after either the death or acquittal or the failure to
charge his co-conspirators. The accused likewise argues that his prosecution, to
the exclusion of others, constitutes unfair discrimination and violates his
constitutional right to equal protection of the law.
He says that thedismissal of
the case against his co-accused was not appealed by the prosecution and
some who should be accused were not charged.
The Court considered the argument erroneous. A conspiracy is in its
nature a joint offense. One person cannot conspire alone. The crime depends
upon the joint act or intent of two or more persons. Yet, it does not follow that
one person cannot be convicted of conspiracy. As long as the acquittal or death
of a co-conspirator does not remove the basis of a charge of conspiracy, one
defendant may be found guilty of the offense.
The Court also held that the accused was not unfairly discriminated
against and his constitutional right to equal protection violated. The Court
explained that the manner in which the prosecution of the case is handled is
within the sound discretion of the prosecutor, and the non-inclusion of other
guilty persons is irrelevant to the case against the accused. A discriminatory
purpose is never presumed. The facts show that it was not solely the
respondent who was charged, but also five others. Further, the fact that the
dismissal of the dase against his co-accused was not appealed is not sufficient
to cry discrimination. This is likewise true for the non-
CHAPTER II 73
PROSECUTION OF OFFENSES
(Rule 110)

inclusion of the two persons. Mere speculation, unsupported by convincing


evidence, cannot establish discrimination on the part of the prosecution and
the denial to respondent of the equal protection of the laws v.
(People
Dumlao, G.R. No. 168918, March 2, 2009).

7. Another case lucidly illustrates the consequences of the rule that the
prosecution of a crime is under the direction and control of the public
prosecutor.
Thus, in the case of Pinote v. Ayco, A.M. No-RTJ-05-1944, December
13, 2005, the trial judge allowed the defense to present evidence consisting of
the testimony of two witnesses, even in the absence of the prosecutor charged
with prosecuting the case. The prosecutor at the time was undergoing medical
treatment at the Philippine Heart Center in Quezon City.
Maintaining that the proceedings conducted in his absence were void,
the prosecutor, on the subsequent hearings of the case, refused to
cross-examine the two defense witnesses, despite being ordered by the judge.
After manifesting to the court the reason for his absence, a reason earlier
relayed to the court on the day of the hearing in question, he reiterated his
position that the act of the judge of allowing the defense to present evidence in
his absence was erroneous and highly irregular. He thus prayed that he should
not be "coerced" to cross-examine those two defense witnesses and that their
testimonies be stricken off the record. The judge, nevertheless considered the
prosecution to have waived its right to cross- examine the two defense
witnesses. An administrative complaint was then lodged by the prosecutor
against the judge for "gross ignorance of the law, grave abuse of authority and
serious misconduct."
On evaluation of the case, the Office of the Court Administrator (OCA),
citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure, found
respondent judge to have breached said rule and accordingly recommended
that he be reprimanded, with a warning that a repetition of the same 05 similar
act shall be dealt with more severely.
74 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Adopting the findings of the Office of the Court Administrator, the Court
ruled that a violation of criminal laws is an affront to the People of the
Philippines as a whole and not merely to the person directly prejudiced, he
being merely the complaining witness. It is on this account, held the Court, that
the presence of a public prosecutor in the trial of criminal cases is necessary to
protect vital state interests, foremost of which is its interest to vindicate the
rule of law, the bedrock of peace of the people. The act of allowing the
presentation of the defense witnesses in the absence of complainant public
prosecutor or a private prosecutor designated for the purpose is a clear
transgression of the Rules which could not be rectified by subsequently giving
the prosecution a chance to cross-examine the witnesses.
Added the Court:

"Respondent's intention to uphold the right of the accused to a speedy


disposition of the case, no matter how noble it may be, cannot justify a breach of
the Rules. If the accused is entitled to due process, so is the State."

Prosecution of a criminal action in the Municipal Trial Court or Municipal


Circuit Trial Court
A criminal action in a Municipal Trial Court or in a Municipal Circuit Trial
Court shall also be prosecuted under the direction and control of the
prosecutor(Sec. 5, Rule 110, Rules of Court).
However, when the prosecutor
assigned is not available, the action may be prosecuted by (a) the offended
party, (b) any peace officer, (c) or public officer charged with the enforcement
of the law violated
(OCA Circular No. 39- 2002, August 21,2002).

Prosecution for violation of special laws


Where the offense is a violation of a special law, the same shall be
prosecuted pursuant to the provisions of said law5, Rule 110, Rules of
(Sec.
Court).
CHAPTER II 75
PROSECUTION OF OFFENSES
(Rule 110)

III. INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION


OF THE CRIMINAL ACTION

Intervention of the offended party


1. A fundamental principle in criminal law is the rule that "Every
(Article 100, Revised
person criminally liable for a felony is also civilly liable"
Penal Code).Thus, generally, a person convicted of a crime is both criminally
and civilly liable.
2. The civil liability for a crime includes restitution, reparation of the
damage caused and indemnification for consequential damages (Article 104,
Revised Penal Code).Except when the civil liability is extinguished, the
offender shall be obliged to satisfy the civil liability resulting from the crime
committed by him, even if he has already served his sentence consisting of
deprivation of liberty or other rights, or has not been required to serve the
same by reason of amnesty, pardon, commutation of sentence or any other
reasons(Article 113, Revised Penal Code).
3. It is because of the existence of a civil liability involved in a crime,
that the offended party is allowed to intervene in the prosecution of the
offense. Thus, Sec. 16 of Rule 110 provides that "xxx Where the civil action
for recovery of civil liability is instituted in the criminal action pursuant to Rule
111, the offended party may intervene by counsel in the prosecution of the
offense."
4. By virtue of Sec. 16 of Rule 110 in relation to Sec. 1 of Rule 111, for
the offended party to acquire the right to intervene in the prosecution of the
offense, it is necessary that the civil action for the recovery of the civil liability be
instituted with the criminal action. If the civil liability has been waived, or the
civil action to recover the civil liability has been reserved or has been instituted
prior to the criminal action, there is no civil liability which would supply a basis
for the intervention of the offended party through his counsel or private
prosecutor. The presence of a private prosecutor in thp criminal action may be
objected to by the prosecution.
76 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

5. There are however, cases where the criminal action also gives rise
to an independent civil action as in crimes involving physical injuries, fraud or
defamation or when the act constituting a crime also constitutes a quasi-delict.
These situations give rise to distinct civil liabilities
to wit: The one arising from
the offense charged under Article 100 of the Revised Penal Code and the civil
liabilities arising from quasi-delicts or independent civil actions. Worthy of note
is the principle that the latter sources of civil liabilities do not arise from the
offense charged.
By virtue of its independent character as a distinct source of civil liability,
the filing of a suit based on a quasi- delict theory during the pendency of the
criminal proceeding, should not prevent the intervention by the offended party
in the prosecution of the offense because there still exists a civil liability under
the Revised Penal Code, i.e., the civil liability arising from the offense charged
which would be the basis for the intervention. This is because the civil liability
arising from a quasi-delict "is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code"(Article 2177, Civil Code of the
Philippines).Also, in the case of independent civil actions, they "may proceed
independently of the criminal action"
(Sec. 3, Rule 111, Rules of Court).
6. It needs to be emphasized that the civil liabilities arising from
independent civil actions and a quasi-delict do not arise from the felony or
crime, and have distinct sources from the law or the Civil Code. They are not
hence, covered by the provision of the Revised Penal Code declaring that
persons liable for a felony are also civilly liable. Such civil actions "may proceed
independently of the criminal proceedings and regardless of the result of the
latter"(Article 31, Civil Code of the Philippines).

When a private prosecutor may prosecute a case even in the absence of


the public prosecutor
1. A private prosecutor may prosecute the criminal action up to the end
of the trial even in the absence of the
CHAPTER II 77
PROSECUTION OF OFFENSES
(Rule 110)

public prosecutor if he is authorized to do so in writing. This


written authorization shall be given by either the Chief of
the Prosecution Office or the Regional State Prosecutor. The
written authorization in order to be given effect must however,
be approved by the court
(Sec. 5, Rule 110, Rules of Court;
A.M. No. 02-2-07-SC, April 10,2002 effective May 1,2002).
2. The written authorization to the private prosecutor
shall be given because of either of the following reasons: (a)
the public prosecutor has a heavy work schedule or, (b) there
is a lack of public prosecutors
(Sec. 5, Rule 110, Rules of Court;
A.M. No. 02-2-07-SC, Effective May 1,2002).

Extent of the authority given to the private prosecutor when


duly authorized to prosecute the action
Once so authorized to prosecute the criminal action, the
private prosecutor shall continue to prosecute the case up to
the end of the trial even in the absence of a public prosecutor,
unless the authority is revoked or otherwise withdrawn
(Sec.
5, Rule 110, Rules of Court; A.M. No. 02-2-07-SC, April 10,
2002 effective May 1,2002).

IV. PROSECUTION OF "PRIVATE CRIMES"


Prosecution of adultery and concubinage
1. The crimes of adultery and concubinageshall not
be prosecutedexcept upon a complaint filed by the offended
spouse(Sec. 5, Rule 110, Rules of Court).
The rule is clear: The
prosecutor cannot prosecute the case where no complaint is
filed by the offended spouse.
The same rule also provides that the action cannot be in-
stituted against one party alone. It must be instituted against
both guilty parties, unless one of them is no longer alive
(Sec.
5, Rule 110, Rules of Court).
2. The offense of adultery and concubinage may not be
instituted if it is shown that the offended party has consented
to the offense or has pardoned the offenders
(Sec. 5, Rule
78 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

Since the rule does not distinguish, the consent or pardon


110, Rules of Court).
may be either expressed or implied.

Prosecution of seduction, abduction and acts of lascivious- ness


1. The offenses of seduction, abduction and acts of lasci- viousness
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
(Sec. 5, Rule 110, Rules of Court).
Note that the pardon must expressly
be made. It is clear that an implied
pardon is not contemplated under this provision.
However, 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
(Sec. 5, Rule
110, Rules of Court). In the order of those who may file the complaint, the
State is the last and may only do so in the absence of
the persons mentioned in
Sec. 5 of Rule 110.
2. Also, under Sec. 5 of Rule 110, 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 of
doing so(Sec. 5, Rule 110, Rules of Court).
Where the minor fails to initiate the prosecution of the offense, the
complaint may be filed by the minor's parents, grandparents or (Sec.
guardian.
5, Rule 110, Rules of Court).

Effect of R.A. 7610 (Special Protection of Children Against Child Abuse,


Exploitation and Discrimination Act)
Under Sec. 27 of R. A. 7610, complaints on cases of unlawful acts
mentioned in the law committed against children, may be filed by the
following:
(a) offended party;
(b) parents or guardians;
CHAPTER II 79
PROSECUTION OF OFFENSES
(Rule 110)

(c) ascendant or collateral relative within the third degree of


consanguinity;
(d) officer, social worker or representative of a licensed child-caring
institution;
(e) officer or social worker of the Department of Social Welfare and
Development;
(f) barangaychairman; or
(g) at least three (3) concerned, responsible citizens where the
violation occurred.

Prosecution of defamation
1. The defamation under this rule(Sec. 5, Rule 110)consists in the
imputation of the offenses ofadultery, concubinag
e, seduction, abduction and
acts of lasciviousness
(Sec. 5, Rule 110, Rules of Court).
2. The criminal action for defamation under the rule shall be brought
at the instance of and upon the complaint filed by the offended (Sec.party
5,
Rule 110, Rules of Court).This rule clearly provides that only the offended
party can initiate the criminal action.

V. THE COMPLAINT AND INFORMATION

Meaning of 'complaint'
1. 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
(Sec. 3, Rule 110,
Rules of Court).
2. A complaint is not a mere statement. It is a statement charging a
person with an offense. As a statement it must be "sworn" and "written." Be it
noted too that the complaint is subscribed only byofany
the persons specified
in the rule, namely, the offended party, any peace officer, or other public
officer charged with the enforcement of the law violated.
80 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

In whose name and against whom filed


1. The complaint is not filed in the name of a private person, natural
or juridical. It is filed in the name of the People of the Philippines and is filed
against all persons who appear to be responsible for the offense(Sec.involved
2, Rule 110, Rules of Court).
2. Private offended parties have limited roles in criminal cases. They
are only witnesses for the prosecution. Thus, a private offended party may not
appeal the dismissal of a criminal case or the acquittal of an accused because
the aggrieved party is the People of the Philippines. However, the offended
party may appeal the civil aspect of the case and may, thus, file a special civil
action for certiorari questioning the decision/action of the court on
jurisdictional grounds. In so doing, the private offended party cannot bring the
action in the name of the People of the Philippines, but must prosecute the
same in his own personal capacity.
The dismissal made by the RTC of the criminal case can only be appealed
by the OSG. The private offended party has no legal personality to do so. Here,
the Supreme Court applied the general rule under Sec. 35(1), Chapter 12, Title
III, Book IV of the Administrative Code of 1987 which provided that only the
OSG can bring and/or defend actions on behalf of the Republic or represent
the people or the State in criminal proceedings pending in the Supreme Court
and the CA(Elvira O. Ong v. Jose Casim Genio, G.R. No. 182336, December

23, 2009).
(Sec. Note:
1, Rule 122).Any appeal is subject to the rule against double jeopardy

Meaning of 'information' (Bar 1994,1995,1996)


1. An information is an accusation in writing charging a person with
an offense subscribed by the prosecutor and filed with the court
(Sec. 4, Rule
110, Rules of Court; People v. Cinco, G.R. No.186460, December 4,2009).
2. While an information is an accusation in writing, it is not required
to be "sworn" unlike a complaint. Only a public officer described by the Rules
of Court as a "prosecutor" is
CHAPTER II 81
PROSECUTION OF OFFENSES
(Rule 110)

authorized to subscribe to the information


(Sec. 4, Rule, 110, Rules of Court).
3. Like a complaint, an information is filed in the name of the People of
the Philippines against all persons who appear to be responsible for the offense
involved(Sec. 2, Rule 110, Rules of Court).

Distinctions between a complaint and an information (Bar 1999)


1. A complaint must be "sworn" hence, under oath. By the clear
terms of Sec. 3 of Rule 110, it is a "sworn written statement."
An information requires no oath. Sec. 4 of Rule 110 merely requires that
it be an accusation "in writing." This is because the prosecutor filing the
information is acting under the oath of his (Estudillo
office v. Baloma, 426
SCRA 83).
2. A complaint or information is subscribed by (a) the offended party,
(b) any peace officer, (c) or other public officer charged with the enforcement
of the law violated On the other hand, an
(Sec. 3, Rule 110, Rules of Court).
information is subscribed by the prosecutor
(Sec. 4, Rule 110, Rules of Court).

Infirmity of signature in the information


It is a valid information signed by a competent officer which, among
other requisites, confers jurisdiction on the court over the person of the
accused and the subject matter of the accusation. In consonance with this
view, 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
(Cudia v. Court of Appeals, 284 SCRA 173).

Sufficiency of the complaint or information (Bar 1994; 2001)


1. A complaint or an information is deemed sufficient if it contains the
following:
(a) The name of the accused; if the offense is committed by more
than one person, all of them shall be included in the complaint or
information; o
82 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

The designation of the offense given by statute;


The acts or omissions complained of as constituting the
offense;
The name of theoffended party;

and The approximate date of the commission of the offense;

The place where the offense was committed


(Sec. 6, Rule
110, Rules of Court; People v. Canares, G.R. No. 174065, February
18,2009).
2. A complaint or information is sufficient if it states the name of the
accused, the designation of the offense by the statute, the acts or omissions
complained of as constituting the offense, the name of
offended
the party, the
approximate date of the commission of the offense and the place where the
offense was committed(Malto v. People, G.R. No. 164733, September 21,
2007; People v. Canares, G.R. No. 174065, February 18, 2009; People v.
Teodoro, G.R. No. 172372, December 4, 2009; People v. Garcia, G.R. No.
159450, March 30, 2011).

Test for sufficiency of the complaint or information


1. The test is whether the crime is described in intelligible terms with
such particularity as to apprise the accused, with reasonable certainty, of the
offense charged (Lazarte, Jr. v. Sandiganbayan, G.R. No. 180122, March
13,2009) because the purpose of the requirement for the information's
validity and sufficiency is to enable the accused to suitably prepare for his
defense, since he is presumed to have no independent knowledge of the facts
that constitute the offense
(People v. Cinco, G.R. No. 186460, December
4,2009).

Questioning the insufficiency of the complaint or information

The sufficiency of an information may be assailed but the 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 trial.
In either case, evidence
CHAPTER II 83
PROSECUTION OF OFFENSES
(Rule 110)

presented during trial can cure the defect in the information."


An accused is deemed to have waived his right to assail the
sufficiency of the information when he voluntarily entered a
plea when arraigned and participated in the trialv.
(Frias
People, G.R. No. 171437, October 4,2007).

Objections as to form
Objections relating to the form of the complaint or infor-
mation cannot be made for the first time on appeal. The
accused-appellant should have moved before arraignment
either for a bill of particulars or for the quashal of the infor-
mation. Having failed to pursue either remedy, he is deemed
to have waived his objections to any formal defect in the
information(The People of the Philippines v. Romar Teodoro y
Vallejo, G.R. No. 172372, December 4,2009).

Date of the commission of the offense


1. Sec. 11 of the same Rule also provides that it is not
necessary to state in the complaint or information the precise
date the offense was committed except when the date of
commission is a material element of the offense. The offense
may thus be alleged to have been committed on a date as near as
possible to the actual date of its commission. At the minimum,
an indictment must contain all the essential elements of the
offense charged to enable the accused to properly meet the
charge and duly prepare for his defense
(Sec. 11, Rule 110,
Rules of Court; People v. Canares, G.R. No. 174065, February
18,2009; People v. Cinco, G.R. No. 186460, December 4,2009;
People v. Teodoro, G.R. No. 172372, December 4,2009).
In rape cases for instance, the failure to specify the exact
dates or times when the rape occurred does not
ipso factomake
the information defective on its face. The reason is obvious.
The date or time of the commission of rape is not a material
ingredient of the said crime because the
gravamen of rape is
carnal knowledge of a woman through force and intimidation.
The precise time when the rape took place has no substantial
bearing on its commission. As such, the date or time need noli
84 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

be stated with absolute accuracy


(People v. Cinco, G.R. No. 186460,
December 4,2009).

Determination of the nature and character of the crime


1. The character of the crime is determined neither by the caption or
preamble of the information nor by the specification of the provision of law
alleged to have been violated, they being conclusions of law, but by the recital
of the ultimate facts and circumstances in the information. Consequently, even
if the designation of the crime in the information was 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(People v. Anguac, G.R. No. 176744, June 5,2009).
2. It is axiomatic that the nature and character of the crime charged
are determined not by the designation of the specific crime, but by the facts
alleged in the information. Controlling in an information should not be the title
of the complaint or the designation of the offense charged or the particular
law or part thereof allegedly violated, these being, by and large, mere
conclusions of law made by the prosecutor, but the description of the crime
charged and the particular facts therein recited
(People v. Quemeggen, G.R.
No. 178205, July 27,2009).

How to state the name of the accused


1. Sec. 7 of Rule 110 establishes the following rules in designating the
name of the accused:
(a) 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.
(b) If his name cannot be ascertained, he must be described
under a fictitious name. A description of the accused under a fictitious
name must be accompanied by a statement that his true name is
unknown.
CHAPTER II 85
PROSECUTION OF OFFENSES
(Rule 110)

(c) If later his true name is disclosed by him or becomes known in


some other manner, his true name shall be inserted in the complaint or
information and in the records of the case.
2. A mistake in the name of the accused is not equivalent, and does not
necessarily amount to, a mistake in the identity of the accused especially when

sufficient evidenceofisthe
the perpetrators adduced
crime to show
(People that theG.R.
v. Amodia, accused is pointed
No. 173791, to 7,
April as one of
2009). However, the identity of the accused must be proven (People v.
Tumambing, G.R. No. 191261, March2011). 2,

How to state the name of the offended party who is a natural person
The complaint or information must state the name and surname of the
offended party or any appellation or nickname by which such person has been
or is known. However, if there is no better way of identifying him, he must be
described under a fictitious name. If later on, the true name of the offended
party is disclosed or ascertained, the court must cause such true name to be
inserted(Sec. 12, Rule 110, Rules of Court).

How to state the name of the offended party which is a juridical person
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(Sec.
law 12[c], Rule 110, Rules of Court).
Rule if the name of the offended party is unknown in offenses against
property
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 In Sayson
(Sec. 12[a], Rule 110, Rules of Court).
v. People, G.R. No.
86 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

L-51745, October 28, 1988, 166 SCRA 680, the Court ruled that in case of
offenses against property, the designation of 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
(Cited in Ricarze v. Court
of Appeals, G.R. No. 160451, February 9,2007).

Designation of the offense


1. It is settled that it is the allegations in the information that
determine the nature of the offense, not the technical name given by the
public prosecutor in the preamble of the Information. From a legal point of
view, and in a very real sense, it is of no concern to the accused what is the
technical name of the crime of which he stands charged. It in no way aids him
in a defense on the merits. That to which his attention should be directed, and
in which he, above all things else, should be most interested, are the facts
alleged. The real question is not did he commit a crime given in the law some
technical and specific name, but did he perform the acts alleged in the body of
the information in the manner therein set(Matrido
forth v. People, G.R. No.
179061, July 13,2009).
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 the accused fully understands what he is being
charged with. The particularity must be such that a person of ordinary
intelligence immediately knows what the charge is. Moreover, reasonable
certainty in the statement of the crime suffices
(Guy v. People, G.R. Nos.
166794-96, March 20,2009).
2. In designating the offense, the following rules must be observed:
(a) The designation of the offense requires, as a rule, that the
name given to the offense by statute must be stated in the complaint or
information.
If the statute gives no designation to the offense, then reference must
1
instead be made to the section subsection
or punishing(Sec.
it 8, Rule
110, Rules of Court).
CHAPTER II 87
PROSECUTION OF OFFENSES
(Rule 110)

(b) To be included in the complete designation of the offense is


an averment of the acts or omissions constituting the (Sec.
offense
8,
Rule 110, Rules of Court).
(c) The complaint or information must specify the qualifying
and aggravating circumstances of the offense
(Sec. 8, Rule 110, Rules of
Court; See People v. Ogarte, G.R. No. 182690, May 30,2011 for
suggested reading).

Effect of failure to designate the offense by the statute or failure to


mention the provision violated
1. The failure to designate the offense by the statute or to mention
the specific provision penalizing the act or an erroneous specification of the law
violated does not vitiate the information if the facts alleged clearly recite the
facts constituting the crime charged(Malto v. People, G.R. No. 164733,
September 21, 2007).There is no law which requires that in order that an
accused may be convicted, the specific provision which penalizes the act
charged be mentioned in the information (Licyayo v. People, G.R. No.
169425, March 4,2008).
2. In Licyayo v. People, G.R. No. 169425, March 4,2008, the
information accuses the accused of the crime of homicide but does not
categorically state that he is being charged with homicide as defined and
penalized under Article 249 of the Revised Penal Code. The accused argues that
the specification in the information of the law violated is necessary to enable
him to adequately prepare for his defense, and to convict him under such
defective information would allegedly violate his constitutional and statutory
right to be informed of the nature and cause of accusation against him.
The Court ruled that the fact that the information does not specifically
mention Article 249 of the Revised Penal Code as the law which defines and
penalizes homicide, does not make the information defective. There is nothing
in the Rules of Court which specifically requires that the information must state
the particular law under which the accused is charged in order for it to be
considered sufficient and valid. Although the information does not specifically
mention Article 249 of the
88 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Revised Penal Code, it nonetheless narrates that the accused stabbed the
victim with a bladed weapon during the incident which caused the latter's
death. The allegations, according to the Court, unmistakably refer to homicide
which is the unlawful killing of any person other than murder, homicide or
infanticide.

The Court
information likewise
is not held
negated by in
an the same case
incomplete that the designation
or defective sufficiency of
of an
the
crime in the caption or other parts of the information but by the narration of
facts and circumstances which adequately depicts a crime and sufficiently ap-
prises the accused of the nature and cause of the accusation against him.
The Court in the case asserted that the character of the crime is
determined neither by the caption or preamble of the information nor by the
specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the recital of the ultimate facts and circumstances in
the information

Effect of failure to specify the correct crime


The failure to specify the correct crime committed will not bar conviction
of an accused. The character of the crime is not determined by the caption or
preamble of the information or by the specification of the provision of law
alleged to have been violated. The crime committed is determined by the
recital of the ultimate facts and circumstances in the complaint or information
(Briones v. People, G.R. No. 156009, June 5, 2009).

Statement of the qualifying and aggravating circumstances (Bar 2001)


1. Every information must state the qualifying and the aggravating
circumstances attending the commission of the crime for them to be
considered in the imposition of the penalty
(People v. Tampus, et al, G.R. No.
181084, June 16,2009;
%p. 8, Sec. 9, Rule 110, Rules of Court).
CHAPTER II 89
PROSECUTION OF OFFENSES
(Rule 110)

The rationale for the requirement was elucidated in a much earlier case.
In People v. Mendoza, G.R. Nos. 132923-24, June 6, 2002 , the accused was
found guilty by the trial court of two counts of rape, each qualified by the
of use
a deadly weapon. The informations however, did not allege that the rapes
were committed with the use of a deadly weapon. The Court was emphatic

when
use ofitadeclared that the and
deadly weapon accused cannottobesuffer
be made convicted of rape
a higher qualified
penalty sincebythat
the
circumstance was not alleged in the information. Not having been alleged and
having been charged with simple rape only, the accused cannot be convicted of
qualified rape. He cannot be held liable for an offense graver than that for
which he was indicted. It would be a denial of the right of the accused to be
informed of the charges against him, and consequently, a denial of due
process, if he is charged with simple rape, on which he was arraigned, and be
convicted of qualified rape punishable by death.
2. In one information for arson, there was no allegation that the house
intentionally burned by petitioners and their cohorts was inhabited. Rather, the
information merely recited that "accused, conspiring, confederating and
helping one another, with intent to cause damage, did then and there willfully,
unlawfully, feloniously and maliciously set on fire the nipa roof of the house of
the [offended party] to the latter's damage and prejudice." Under the 2000
Rules of Criminal Procedure, the information or complaint must state the
designation of the offense given by the statute and specify its qualifying and
generic aggravating circumstances, otherwise stated, the accused will not be
convicted of the offense proved during the trial if it was not properly alleged in
the information Hence, he can only be liable for simple arson and not arson of
an inhabited dwelling which carries a higher penalty
(Buebos v. People, G.R.
No. 163938, March 28,2008).
Prior to the effectivity of the Revised Rules of Criminal Procedure, courts
generally awarded exemplary damages in criminal cases when an aggravating
circumstance, whether ordinary or qualifying, had been proven to have
attended the
90 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

commission of the crime, even if the same was not alleged in the information.
However, with the promulgation of the Revised Rules, courts could no longer
consider the aggravating circumstances not alleged and proven in the
determination of the penalty and in the award of damages. Thus, even if an
aggravating circumstance had been proven, but was not alleged, courts will

not award
proven exemplary
beyond damages.
reasonable Also,the
doubt, even if the cannot
accused guilt of be
theconvicted
accused was
of
qualified rape but only with simple rape because the special qualifying
circumstances of minority and relationship were not sufficiently alleged in the
information(People v. Dalisay, G.R. No. 188106, November 25, 2009;
People v. Alfredo, G.R. No. 188560, December 15, 2010).
3. The qualifying circumstances need not be preceded by descriptive
7
words such as "qualifying" or "qualified
' toby
properly qualify an offense. It is
not the use of the words "qualifying" or "qualified by" that raises a crime to a
higher category, but the specific allegation of an attendant circumstance which
adds the essential element raising the crime to a higher category
(People v.
Rosas, G.R. No. 177825, October 24,
2008).
4. In one case brought to the Supreme Court, both the accused
contend that the information did not contain any allegation of conspiracy,
either by the use of the words conspire or its derivatives and synonyms, or by
allegations of basic facts constituting conspiracy that will make them liable for
the acts of their co-accused.
The Court considered the contention untenable. It is true as it is settled,
declared the Court, that conspiracy must be alleged, not merely inferred in the
information. The Court however, found that while a perusal of the information
readily shows that the words "conspiracy," "conspired" or "in conspiracy with"
do not appear in the information, this however, does not necessarily mean
that the absence of these words would signify that conspiracy was not alleged
in the information. After carefully reading the information, the Court
concluded that indeed conspiracy was properly
CHAPTER II 91
PROSECUTION OF OFFENSES
(Rule 110)

alleged in the information. The accusatory portion reads in part: "all the
above-named accused, with evident intent to defraud the government of
legitimate taxes accruing to it from imported articles, did then and there,
willfully, unlawfully and knowinglyparticipate in and facilitate the
transportation, concealment, and possession of dutiable electronic
equipment and accessories with a domestic market value of P20,000,000.00
contained in container van No. TTNU9201241, but which were declared in
Formal Entry and Revenue Declaration No. 118302 as assorted men's and
ladies' accessories x x x." The Court ruled that "We find the phrase "participate
in and facilitate" to be a clear and definite allegation of conspiracy sufficient for
those being accused to competently enter a plea and to make a proper
defense." Both accused were charged because they assisted in and facilitated
the release of the subject cargo without the payment of the proper duties and
taxes due the government by omitting certain acts in the light of glaring
discrepancies and suspicious entries present in the documents involved in the
subject importation (Francisco v. People, G.R. No. 177430, July 14, 2009;
Ojeda v. People, G.R. No. 178935, July 14, 2009).
5. A similar pronouncement was made by the Court in a fairly recent
case. InPeople v. Ubifia, G.R. No. 176349, July 10, 2007,the Court declared
that the twin circumstances of minority and relationship under Article 335 of
the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of
qualifying circumstances because they alter the nature of the crime of rape and
increase the penalty. As special qualifying circumstances they must be
specifically pleaded or alleged with certainty in the information. "If the offender
is merely a relation — not a parent, ascendant, step-parent, guardian, or
common law spouse of the mother of the victim — the specific relationship
must be alleged in the information,
i.e., that he is "a relative by consanguinity
or affinity [as the case may be] within the third civil degree."
The Court found that the informationUbifia in only mentioned
accused/appellant as the victim's uncle, without specifically stating that he is a
relative within the third civil
92 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

degree, either by affinity or consanguinity. Even granting that during trial it was
proved that the relationship was within the third civil degree either of
consanguinity or affinity, still such proof cannot be appreciated because
appellant would thereby be denied of his right to be informed of the nature
and cause of the accusation against him. Appellant cannot be charged with
committing the crime of rape in its simple form and then be tried and
convicted of rape in its qualified form. Thus, the Court of Appeals correctly
disregarded the qualifying circumstance of relationship.

Cause of accusation
1. The allegations of facts constituting the offense charged are
substantial matters and an accused's right to question his conviction based on
facts not alleged in the information cannot be waived. No matter how
conclusive and convincing the evidence of guilt may be, an accused cannot be
convicted of any offense unless it is charged in the information on which he is
tried or is necessarily included therein. To convict him of a ground not alleged
while he is concentrating his defense against the ground alleged would plainly
be unfair and underhanded. The rule is that a variance between the allegation
in the information and proof adduced during trial shall be fatal to the criminal
case if it is material and prejudicial to the accused so much so that it affects his
substantial rights
(Matrido v. People, G.R. No. 179061, July 13,2009).

2. In informing the accused of the cause of accusation against him, it


is not necessary to employ the words used in the statute alleged to have been
violated. It is sufficient for the complaint or information to use ordinary and
concise language sufficient to enable a person of common understanding to
know the following (Sec. 9, Rule 110, Rules of Court):

(a) the offense being charged;


(b) the acts or omissions complained of as constituting the
offense; and

di (c) the qualifying and aggravating circumstances.


CHAPTER II 93
PROSECUTION OF OFFENSES
(Rule 110)

What determines the real nature and cause of the accusation against the
accused is the actual recital of facts stated in the information or complaint, and
not the caption or preamble of the information or complaint, nor the
specification of the provision of law alleged to have been violated they being
conclusions of law(Nombrefia v. People, G.R. No. 157919, January 30,
2007).
3. The acts or omissions complained of must be alleged in such form
as is sufficient to enable a person of common understanding to know what
offense is intended to be charged and enable the court to know the proper
judgment. The information must allege clearly and accurately the elements of
the crime charged. What facts and circumstances are necessary to be included
therein must be determined by reference to the definition and elements of the
specific crimes. The purpose of the requirement of alleging all the elements of
the crime in the information is to inform an accused of the nature of the
accusation against him so as to enable him to suitably prepare for his defense.
Another purpose is to enable the accused, if found guilty, to plead his
conviction in a subsequent prosecution for the same offense (Serapio v.
Sandiganbayan, G.R. No. 148468, January 29,2003).
4. The accused will not be convicted of the offense proved during the
trial if it was not properly alleged in the information. If the information charges
a violation of a law that requires an intentional
(Sec. 3, Par. 2 ofP.D. No. 1613)
burning of a house or dwelling but the same information does not allege that
there was an intentional burning of such dwelling, there cannot be a conviction
under the said law because of an insufficiency in the allegations of the
information. The failure to make the required allegations is fatal to a charge of
arson under the applicable law
(Buebos v. People, G.R. No. 163938, March
28,2008).
5. In another case, the victim was raped by the accused while she
was under the custody of law enforcement authorities who were members of
the PNP-CIDG at the time of the rape. Under Article 266-B of the Revised Penal
Code, the
94 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

penalty for rape committed through force and intimidation is


reclusion
perpetua. The same provision also states that the death penalty shall be
imposed if the victim was raped while under the custody of the police
authorities, or when the rape is committed by any member of the Philippine
National Police (PNP) or any law enforcement agency. This circumstance was
not however, specifically alleged in the information. The Court held that it
cannot therefore, be appreciated even if subsequently proved during the trial.
The RTC, ruled the Court, was correct in imposing only perpetua
reclusion
(People v. Aure, G.R. No. 180451, October 17,2008).
6. Both the circumstances of the minority and the relationship of the
offender to the victim, either as the victim's parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim, must be alleged in the
information and proved during the trial in order for them to serve as qualifying
circumstances under Article 266-B of the Revised Penal Code.
In the case at bar, although the victim's minority was alleged and
established, her relationship with the accused as the latter's daughter was not
properly alleged in the information, and even though this was proven during
trial and not refuted by the accused, it cannot be considered as a special
qualifying circumstance that would serve to increase the penalty of the
offender. Under the 2000 Rules of Criminal Procedure, which should be given
retroactive effect following the rule that statutes governing court proceedings
will be construed as applicable to actions pending and undetermined at the
time of their passage, every information must state the qualifying and the
aggravating circumstances attending the commission of the crime for them to
be considered in the imposition of the penalty. Since in the case at bar, the
information did not state that the accused is the mother of the victim, this
circumstance could not be appreciated as a special qualifying circumstance.
She may only be convicted as an accomplice in the crime of simple rape, which
is punishable byreclusion perpetua (People v. Tampus, G.R. No. 181084,
June 16,2009).
CHAPTER II 95
PROSECUTION OF OFFENSES
(Rule 110)

Similarly, in
People v. Mejia, G.R. No. 185723, August 4,
2009, the qualifying circumstance of minority which was not
alleged in the information was appreciated by the trial court
in convicting the accused of rape. Sustaining the Court of
Appeals which disregarded the qualifying circumstance, the
Court ruled that the said circumstance cannot be considered
in fixing the penalty because minority, though proved, was
not alleged in the information. As regards relationship, the
same was alleged and proved. Pursuant, however, to Article
266-B of the Revised Penal Code, in order to fall within sub-
paragraph 1 of said provision, both circumstances of minority
and relationship must be alleged in the information. The twin
circumstances of minority of the victim and her relationship
to the offender must concur to qualify the crime of rape. In the
instant case, only relationship was duly alleged and proved.
The Court clearly explained:
"Jurisprudence dictates that when the law specifies
certain circumstances that will qualify an offense and
thus attach to it a greater degree of penalty, such circum-
stances must be both alleged and proven in order to jus-
tify the imposition of the graver penalty. Recent rulings
of the Court relative to the rape of minors invariably state
that in order to justify the imposition of death, there must
be independent evidence proving the age of the victim,
other than the testimonies of prosecution witnesses and
the absence of denial by the accused. A duly certified cer-
tificate of live birth accurately showing the complainant's
age, or some other official document or record such as a
school record, has been recognized as competent evidence.
"In the instant case, we find insufficient the bare
testimony of private complainants and their mother as
to their ages as well as their kinship to the appellant,
x x x [ W e ] cannot agree with the solicitor general that
appellant's admission of his relationship with his victims
would suffice. Elementary is the doctrine that the
prosecution bears the burden of proving all the elements
of a crime, including the qualifying circumstances. In sum,
the death penalty cannot be imposed upon appellant."
1 >r
(citation omitted)
96 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

7. In People v. Begino, G.R. No. 181246, March 20, 2009, where


the qualifying circumstances of relationship was not properly pleaded, the
accused was not convicted of rape in the qualified form. The failure to so allege
such relationship means that the accused was not properly informed of the

nature and cause


requirement of the the
is to enable accusation
accused against him.prepare
to properly The main
for purpose of this
his defense and
he is presumed to haveno independent knowledge of the facts that constitute
the offense.
8. In another case, the information charging the petitioners with
violation of R.A. No. 6539, as amended, did not allege that the carnapping was
committed by means of violence against, or intimidation of, any person, or
force upon things. The Court emphasized that while these circumstances were
proven at the trial, they cannot be appreciated because they were not alleged
in the information. Thus, the lower courts erred when they took these
circumstances into account in imposing the penalty which they pegged at
seventeen (17) years and four (4) months to thirty (30) years imprisonment. In
the absence of these circumstances, the charge against the petitioners is
confined to simple carnapping whose imposable penalty should have been
imprisonment for not less than fourteen (14) years and eight (8) months, and
not more than seventeen (17) years and four (4) months
(Andres v. People,
G.R. No. 185860, June 5,2009).

How to state the date of the commission of the offense


1. Sec. 11 of Rule 110 establishes the general rule that it is not
necessary to state the precise date the offense was committed because the
offense may be alleged to have been committed on a date as near as possible
to the actual date of its commission.
2. The same rule provides by way of exception that it is necessary to
state the precise date the offense was committed when it is a material
ingredient of the offense
(Sec. 11, Rule HO, Rules of Court; People v. Cinco,
G.R. No. 186460, December 4,2009; People v. Dion, G.R. No. 181035, July 4,
2011).
CHAPTER II 97
PROSECUTION OF OFFENSES
(Rule 110)

3. Sec. 6 of Rule 110 of the Revised Rules of Court provides that an


allegation of the approximate date of the commission of the offense will
suffice, while Sec. 11 of the same Rule provides that 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(People
crime v. Estrada, G.R.
Nos. 164368-69, April 2,2009; People v. Fragante, G.R. No. 182521,
February 9, 2011; Suggested readings: People v. Mercado, G.R. No. 189847,
May 30, 2011).

Duplicity of the offense (Bar 2005)


1. The general rule is that a complaint or an information must charge
only one offense. More than one offense may however, be charged when the
law prescribes a single punishment for various offenses
(Sec. 13, Rule 110,
Rules of Court).
2. An objection must be timely interposed whenever a complaint or
information charges more than one offense.
Failure of the accused to interpose an objection on the ground of
duplicity of the offenses charged in the information constitutes waiver
(People
v. Tabio, G.R. No. 179477, February
6,2008).
When two or more offenses are charged in a single complaint or
information, the accused must object to such fact before trial. If he does not so
object, the court may convict him of as many offenses as are charged and
proved, and impose on him the penalty for each offense
(Sec. 3, Rule 120,
Rules of Court; People v. Chingh, G.R. No. 178323, March 16,2011).
3. There should also be no problem in convicting an accused of two
or more crimes erroneously charged in one information or complaint, but later
proven to be independent crimes, as if they were made the subject of separate
complaints or informations. As worded, the information sufficiently alleged all
the elements of both felonies. Needless to state, appellants failed, before their
arraignment, to move for the quashal of the information, which appeared to
charge more than one offense. They have thereby waived any objection
thereto, and may thus be found guilty of as many offenses as
98 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

those charged in the information and proven during the trial v.


(People
Quemeggen, G.R. No. 178205, July 27,2009).

VI. VENUE OF CRIMINAL ACTIONS

1. As a rule, the criminal action shall be instituted and tried in the


court of the municipality or territory (a) where the offense was committed, or
(b) where any of its essential ingredients occurred. This rule is however, subject
to existing laws
(Sec. 15[a], Rule 110, Rules of Court).
2. In cases of written defamation, whether the offended party is a
public official or a private individual, the criminal action may be filed in the
Court of First Instance (now RTC) of the province or city where the libelous
article is printed and first published. There are however, additional venues. If
the offended party is a private individual, the action may also be filed in the CFI
(now RTC) of the province where he actually resided at the time of the
commission of the offense. If the offended party is a public officer holding
office in Manila at the time of the commission of the offense, the action may
be filed in the CFI (now RTC) of Manila. If the public officer holds office outside
Manila, the action may be filed in the CFI (now RTC) of the province or city
where he held office at the time of the commission of the(Agbayani
offense
v. Sayo, 178 Phil. 579; Foz, Jr. v. People, G.R. No. 167764, October 9,2009).
Thus, if the criminal information is filed in the place where the
defamatory article was printed or first published, then the information must so
state that the libelous material was either printed or first published in the place
of the filing of the information. Merely alleging that the paper or magazine is of
general circulation in the place where the action is instituted does not confer
territorial jurisdiction upon the court. A conviction under this kind of
information should be set aside for want of jurisdiction.
3. In one case, an information for written defamation was filed in Iloilo
City but the information merely alleged that the newspaper where the alleged
defamatory article
CHAPTER II 99
PROSECUTION OF OFFENSES
(Rule 110)

appeared had "considerabl e circulation in the City Iloilo


of and
throughout the region." The Court ruled that the allegations
did not establish where the said publication was printed or
first published
(Foz, Jr. v. People, G.R. No. 167764, October
9,2009).
Similarly, in another case, the information filed in Manila
merely alleged that the defamatory article was published in
"Smart File," a magazine of general circulation in Manila. A
perusal of the information, explained the Court, show that the
allegations did not establish the printing of the magazine in
Manila where the criminal action was instituted
(Chavez v.
Court of Appeals, 514 SCRA 279).
Also, an information which merely alleged that the libel-
ous article "was published in the Philippine Daily Inquirer,"
a newspaper of general circulation in Baguio City, did not
sufficiently show Baguio City to be the proper venue of the
printing and first publication of the newspaper
(Agustin v. Pa-
mintuan, 467 SCRA 601).

Rule where offense is committed in a train, aircraft or vehicle


Where an offense is committed in a train, aircraft, or
vehicle, whether public or private, 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 its
trip, including the place of its departure and arrival. Note that
this rule applies when the offense is committed in the course
of the trip of the train, aircraft or vehicle
(Sec. 15[b], Rule 110,
Rules of Court).

Rule where offense is committed on board a vessel


Where an offense is committed on board a vessel, the
criminal action shall be instituted and tried in (a) the court
of the first port of entry, or (b) of the municipality or territory
where the vessel passed during its voyage. This rule applies
when the offense is committed during the voyage of the
vessel and is subject to the generally accepted principles of
international law(Sec. 15[c], Rule 110, Rules of Court).
100 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Rule when the offense is covered by Art. 2 of the Revised Penal Code
Crimes committed outside the Philippines but punishable under Art. 2 of
the Revised Penal Code shall be cognizable by the court where the criminal
action is first filed
(Sec. 15[d], Rule 110, Rules of Court).

How to state the place of the commission of the offense


The statement of the place of commission of an offense is sufficient if it
can be understood from the allegations of the complaint or information that
the offense was committed or some of its essential elements occurred at some
place within the jurisdiction of the court10,
(Sec.
Rule 110, Rules of Court).
Where the particular place where the offense was committed is however, an
essential element of the offense or is necessary for its identification, it is implied
from the rule that the description of the place of commission of the offense
must be specific.

VII. AMENDMENT OR SUBSTITUTION OF THE COMPLAINT


OR INFORMATION
Amendment of the information or complaint before plea; no need for
leave (Bar 2001; 2002)
If the amendment is made before the accused enters his plea, the
complaint or information may be amended inor insubstance, without
form
the need for leave of court
(Sec. 14, Rule 110, Rules of Court).

When leave of court is required even if the amendment is made before


plea
1. Leave of court is required even if made before plea if:
(a) the amendment downgrades the nature of the offense
charged, or
(b) the amendment excludes any accused from the complaint
or information
(Sec. 14, Rule 110, Rules of Court).
CHAPTERin 101
PROSECUTION OF CIVIL ACTION
(Rule 111)

2. Aside from leave of court, the above amendments, require a


motion by the prosecutor, with notice to the offended party
(Sec. 14, Rule 110,
Rules of Court).
3. The court is mandated by the rule 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
(Sec. 14, Rule 110, Rules of Court).

Rule as to amendment made after the


plea of the accused
1. If the amendment is made after the plea of the accused and
during the trial, any
formal amendment may only be made under two
conditions, namely: (a) leave of court must be secured; and (b) the amendment
does not cause prejudice to the rights of the accused
(Sec. 14, Rule 110, Rules
of Court).
Since the rule makes reference only to a formal amendment after the
plea, the phraseology of the rule seems to indicate that an amendment in
substance is, as a rule, clearly
not allowed at this stage.
2. In a case, however, the Court held that before the accused enters
his plea, a formal or substantial amendment of the complaint or information
may be made without leave of court. After the entry of plea, only a formal
amendment may be made but with leave of court and if it does not prejudice
the rights of the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused
(Ricarze v. Court of
Appeals, G.R. No. 160451, February 9,2007 citing Matalam v.
Sandiganbayan, 455 SCRA 736).

When an amendment is formal or substantial (Bar 1997)


1. Thus, it has been held that the test as to whether a defendant is
prejudiced by the amendment is whether a defense under the information as
it srcinally stood would be available after the amendment is made, and
whether any evidence defendant might have would be equally applicable to
the information in the one form as in the other. An amendment to an
information which does not change the
102 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

nature of the crime alleged therein does not affect the essence of the offense
or cause surprise or deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of substance. Thus,
the substitution of the private complainant is not a substantial amendment
where the substitution did not alter the basis of the charge in both
informations, nor did it result in any prejudice to the other party. More so if the
documentary evidences involved in the case remained the same, and all are
available to the other party before (Ricarze
trial v. Court of Appeals, G.R. No.
160451, February 9,2007).
2. On the other hand, the following have been held to be mere
formal amendments: (1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or distinct from
that charged in the srcinal one; (3) 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; (4) an amendment which
does not adversely affect any substantial right of the accused; and (5) an
amendment that merely adds specifications 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 srcinal
information and which adds nothing essential for conviction for the crime

charged(Ricarze v. Court of Appeals, G.R. No. 160451, February 9,2007).


3. One case which illustrates the distinction between a formal and
substantial amendment particularly well is v. Judge Afable Cajigal, G.R.
Pacoy
No. 157472, September 28,2007. Here, upon arraignment, the accused, duly
assisted by counselde parte, pleaded not guilty to the charge of homicide.
However, on the same day and 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 of disregard of
rank alleged in the information which the judge considered as having qualified
the crime to murder.
CHAPTER II 103
PROSECUTION OF OFFENSES
(Rule 110)

Acting upon such order, the prosecutor entered his amendment by


crossing out the word "Homicide" and instead wrote the word "Murder" in the
caption and in the opening paragraph of the information. The accusatory
portion remained exactly the same as that of the srcinal information for
homicide.
On the date scheduled for the re-arraignment of the accused for the
crime of murder, the counsel for petitioner objected on the ground that the
latter would be placed in double jeopardy, considering that his homicide case
had been terminated without his express consent, resulting in the dismissal of
the case. As the accused refused to enter his plea on the amended information
for murder, the public respondent judge entered for him a plea of not guilty.
One of the issues sought to be resolved in the Supreme Court was
whether or not the amendment from homicide to murder is a substantial one.
In resolving the issue, the Court ruled, that the change of the offense charged
from homicide to murder is merely a formal amendment and not a substantial
amendment or a substitution.
The Court ratiocinated that while the amended information was for
murder, a reading of the information shows that the only change made was in
the caption of the case; and in the opening paragraph or preamble of the
Information, with the crossing out of word "Homicide" and its replacement by
the word "Murder." There was no change in the recital of facts constituting the
offense charged or in the determination of the jurisdiction of the court. The
averments in the amended Information for murder are exactly the same as
those already alleged in the srcinal information for homicide, as there was not
at all any change in the act imputed to the accused. Thus, the Court found the
amendment made in the caption and preamble from "Homicide" to "Murder"
as purely formal.
Sec. 14, Rule 110 explained the Court, also provides that in allowing
formal amendments in cases in which the accused has already pleaded, it is
necessary that the amendments do not prejudice the rights of the accused. The
test of whether
104 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

the rights of an accused are prejudiced by the amendment of a complaint or


information is whether a defense under the complaint or information, as it
srcinally stood, would no longer be available after the amendment is made;
and when any evidence the accused might have would be inapplicable to the

complaint
the amended or information.
information Since the facts
are identical alleged
with thoseinofthe
theaccusatory portion of
srcinal information
for homicide, there could not be any effect on the prosecution's theory of the
case; neither would there be any possible prejudice to the rights or defense of
petitioner(Pacoy v. Cajigal, G.R. No. 157472, September 28,2007).

Substitution of complaint or information (Bar 2002)


1. A 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. In such a case, the court shall dismiss the srcinal 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, Rules of
Court).
2, The dismissal of the srcinal complaint or information is subject to
the provisions of Sec. 19 of Rule 119. Under this provision, if it becomes
manifest at any time before judgment that the accused cannot be convicted of
the offense charged or of any other offense necessarily included therein, as
when a mistake has been made in charging the proper offense, the court
nevertheless, shall commit the accused to answer for the proper offense by
requiring the filing of the proper information. The accused shall not be
discharged if there appears good cause to detain him. After the proper
information is filed, it shall dismiss the srcinal case.

Distinction between substitution and amendment (Bar 1994)


The pronouncements Pacoy
in v. Cajigal, G.R. No. 157472, September
28, 2007 citing Teehankee v. Madayag, G.R. No. 103102, March 6, 1992,
207 SCRA 134,which distinguish
CHAPTER II 105
PROSECUTION OF OFFENSES
(Rule 110)

between amendment and substitution under Sec. 14 of Rule 110, are


illuminating:

"The first paragraph provides the amendment


rules for of the information
or complaint, while the second paragraph refers to the of the
substitution

information or complaint.
It may accordingly be posited that both amendment and substitution of
the information may be made before or after the defendant pleads, but they
differ in the following respects:
1. Amendment may involve either formal or substantial changes,
while substitution necessarily involves a substantial change from the srcinal
charge;
2. Amendment before plea has been entered can be effected
without leave of court, but substitution of information must be with leave of court
as the srcinal information has to be dismissed;
3. Where the amendment is only as to form, there is no need for
another preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed and the
accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the
srcinal information or to an offense which necessarily includes or is necessarily
included in the srcinal charge, hence substantial amendments to the information

after the plea has been taken cannot be made over the objection of the accused,
for if the srcinal information would be withdrawn, the accused could invoke
double jeopardy. On the other hand, substitution requires or presupposes that the
new information involves a different offense which does not include or is not
necessarily included in the srcinal charge, hence the accused cannot claim double
jeopardy.
In determining, therefore, whether there should be an amendment under
the first paragraph of Section 14, Rule 110, or a substitution of information under
the
106 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

second paragraph thereof, the rule is that where the second information involves
the same offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense which is distinct and
different from that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support
a conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when the
second offense is an attempt to commit or a frustration of, or when it necessarily
includes or is necessarily included in, the offense charged in the first information.
In this connection, an offense may be said to necessarily include another when
some of the essential elements or ingredients of the former, as this is alleged in
the information, constitute the latter. And, vice-versa, an offense may be said to
be necessarily included in another when the essential ingredients of the former
constitute or form a part of those constituting the latter."

- 0O0—
Chapter III

PROSECUTION OF CIVIL ACTION (Rule 111)

Implied institution of the civil action with the criminal action


1. When a criminal action is instituted, the civil action for the recovery
of the civil liability
arising from the offense chargedshall be deemed instituted
with the criminal action The reason for
(Sec. 1 [a], Rule 111, Rules of Court).
the implied institution of the criminal action is the principle that every person
criminally liable for a felony is also civilly(Article
liable 100, Revised Penal
Code).
Generally, a criminal case has two aspects, the civil and the criminal. The
civil aspect is based on the principle that every person criminally liable is also
civilly liable
(Article 100, Revised Penal Code).
Under Art. 100 of the Revised Penal Code, every person criminally liable
for a felony is also civilly liable except in the instances when no actual damage
results from an offense, such as espionage, violation of neutrality, flight to an

Cruz v. Mina,
enemy country, and crime against popular representation ( G.R.
No. 154207, April 27,2007).
2. A separate civil action would only prove to be costly, burdensome
and time-consuming for both parties and further delay the final disposition of
the case. The multiplicity of suits must be avoided. With the implied institution
of the civil action in the criminal action, the two actions are merged into one
composite proceeding, with the criminal action predominating the civil
(Ricarze
v. Court of Appeals, G.R. No. 160451, February 9,2007).

107
108 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

The civil action, in which the offended party is the plaintiff and the
accused is the defendant is deemed instituted with the criminal action unless
the offended party waives the civil action or reserves the right to institute it
separately or institutes the civil action prior to the criminal action. The law
allows the merger of the criminal and the civil actions to avoid multiplicity of
suits. Thus, when the state succeeds in prosecuting the offense, the offended
party benefits from such result and is able to collect the damages awarded to
him (Heirs of Sarah Marie Palma Burgos v. Court of Appeals, G.R. No.
169711, February 8,2010).
3. The rule on implied institution of the civil action does not apply before
the filing of the criminal action or information. Hence, it was ruled in one case
that when there is no criminal case yet against the respondents as when the
Ombudsman is still in the process of finding probable cause to prosecute the
respondent, the rule that a civil action is deemed instituted along with the
criminal action unless the offended party: (a) waives the civil action, (b)
reserves the right to institute it separately, or (c) institutes the civil action prior
to the criminal action, is not applicable
(ABS-CBN Broadcasting Corporation v.
Ombudsman, G.R. No. 133347, October 15,2008).

Purposes of the criminal and civil actions


The prime purpose of the criminal action is to punish the offender in
order to deter him and others from committing the same or similar offense, to
isolate him from society, reform and rehabilitate him or, in general, to maintain
social order. On the other hand, the sole purpose of the civil action is for the
resolution, reparation or indemnification of the private offended party for the
damage or injury he sustained by reason of the delictual or felonious act of the
accused. The sole purpose of the civil action is for the resolution, reparation or
indemnification of the private offended party for the damage or injury he
sustained by reason of the delictual or felonious act of the(Ricarze
accusedv.
Court of Appeals, G.R. No. 160451, February 9,2007).
CHAPTERin 109
PROSECUTION OF CIVIL ACTION
(Rule 111)

Judgment of conviction includes a judgment on the civil liability


Because of the rule that the civil action is impliedly instituted with the
criminal action, the trial court should, in case of conviction, state the civil liability
or damages caused by the wrongful act or omission to be recovered from the
accused by the offended party, if there is any and if the filing of the civil action
has not been reserved, previously instituted or (Hun
waived
Hyung Park v. Eun
Wong Choi, G.R. No. 165496, February 12,2007).

Who the real parties in interest are in the civil aspect of the case
The real parties in interest in the civil aspect of a decision are the
offended party and the accused. Hence, either the offended party or the
accused may appeal the civil aspect of the judgment despite the acquittal of the
accused. The public prosecutor generally has no interest in appealing the civil
aspect of a decision acquitting the accused. The acquittal ends his work. The
case is terminated as far as he is concerned
(Hun Hyung Park v. Eun Wong
Choi, G.R. No. 165496, February 12, 2007).

Rule applicable
One of the issues in a criminal case being the civil liability of the accused
arising from the crime, the governing law is the Rules of Criminal Procedure,
not the Rules of Civil Procedure which pertains to a civil action arising from the
(Hun
initiatory pleading that gives rise to the suitHyung Park v. Eun Wong
Choi, G.R. No. 165496, February 12,2007).

When a civil action may proceed independently; independent civil actions


and quasi-delicts (Bar 2005)
1. The 2000 Rules of Criminal Procedure has clarified what civil actions
are deemed instituted in a criminal prosecution. Under the Rules, only the civil
liability of the accused is deemed included in a
arising from the crime charged
crimi
110 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

nal action. Thus, the civil actions referred to in Articles 32,33,


34 and 2176 of the Civil Code shall remain "separate, distinct
and independent" of any criminal prosecution which may be
based on the same act(Philippine Rabbit Bus Lines, Inc. v.
People, G.R. No. 147703, April 14,2004).
Thus, if the employee/driver of a common carrier, by
his negligent act causes serious injuries to a pedestrian, the
former is not only civilly liable as a result of the felonious act
(reckless imprudence resulting to serious physical injuries)
but is likewise liable under a quasi-delict
culpaoraquiliana
pursuant to Article 2176 of the Civil Code. Such civil liability
even if resulting from the same negligent act is separate and
independent of the crime.
2. Another possibl e legal basisfor the institution of a
civil action against the driver separate from the civil action
flowing from the offense is Article 33 of the Civil Code. Because
the act of the driver has
caused physical injuries, "a civil action
for damages entirely separate and distinct from the criminal
act, may be brought by the offended party. Such civil action
shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence"
(Article 33,
Civil Code of the P
hilippines).
3. By the clear terms of Article 2177 of the Civil Code,
the responsibility arising from a quasi-delict
"is entirely
separate and distinct from the civil liability arising from
negligence under the Penal Code "
The same rule in Article 2177 of the Civil Code finds
support from Article 31 of the same Code, thus:
"When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the crimi-
nal proceedings and regardless of the results ofat-
the l
ter."

Article 2176 arises from a source of obligation distinct


from a crime while Articles 32, 33, and 34 of the Civil Code
are sources of obligations arising from direct provisions of
CHAPTER III 111
PROSECUTION OF CIVIL ACTION
(Rule 111)

law. The civil actions arising from these articles do not arise from the acts or
omissions constituting a felony hence, are not impliedly instituted with the
criminal action. Only the civil action to recover the civil liability flowing from or
arising from the offense charged is impliedly instituted with the criminal action.
4. The civil actions arising from Articles 2176, 32, 33 and 34 of the
Civil Code may be filed independently and separately from the criminal action
because they do not arise from the offense charged. What the law proscribes is
double recovery. Article 2177 of the Civil Code declares "thethat
plaintif
cannot recover damages twice for the same act or omission of the defendant
The same prohibition on double recovery is reiterated in the Rules of
Court(Sec. 3, Rule 111),
thus:
"x x x In no case however, may the offended party recover damages twice for the
same act or omission charged
in the criminal action."

5. A criminal case based on defamation, fraud or physical injuries


gives rise to an independent civil action arising not from the crime charged but
from Article 33 even if caused by the very same defamatory or fraudulent act.
This civil action is also distinct from the civil action which is the consequence of
the alleged criminal act. The same principle applies to all those actions based on
Articles 32, 34 and 2176 of the Civil Code which may arise from the very same
act that gave rise to the crime.

Consequences of the independent character of actions under Articles 32,


33, 34 and 2176 of the Civil Code
The following are some of the consequences of the separate and distinct
character of civil actions arising not from the offense charged but from Articles
32,33,34 and 2176 of the Civil Code:
1. The right to bring the civil action shall proceed independently of the
criminal action
(Sec. 3, Rule 111, Rules
112 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

of Court)and regardless of the results of the (Article


latter 31, Civil Code of the
Philippines).(Bar 2005)
2. The quantum of evidence required is preponderance of evidence
(Sec. 3, Rule 111, Rules of Court).
(a) The right to bring the foregoing actions based on the Civil Code
need 3.
not be reserved in the criminal prosecution, since they are not deemed
included therein.
(b) The institution or the 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.
(c) Even if a civil action is filed separately,
ex the
delictocivil
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 therein
(See also Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703,
April 14,2004).

When there is no implied institution of the civil action


1. There is no implied institution of the civil action to recover civil
liability arising from the offense charged in any of the following instances:

(a) When the offended party waives the civil action;


(b) When the offended party reserves the right to institute the
civil action separately; or
(c) When the offended party institutes the civil action prior to
the criminal action
(Sec. 1 [a], Rule 111, Rules of Court).
The above rule has no application to independent civil actions under
Articles 32, 33, 34 and 2176 of the Civil Code.
2. When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense
CHAPTERin 113
PROSECUTION OF CIVIL ACTION
(Rule 111)

charged shall be deemed instituted with the criminal action.


Hence, it is correct to argue that there being no reservation,
waiver, nor prior institution of the civil aspect of the criminal
case, it follows that the civil case arising from grave threats
is deemed instituted with the criminal action and, hence, the

private prosecutor may rightfully intervene to prosecute the


civil aspectCruz
( v. Mina, G.R. No. 154207, April 27,2007).

Reservation of the civil action


If the offended party desires to reserve the right to
institute the civil action after the criminal action has been
instituted, the reservation shall be made before the prosecution
starts presenting its evidence. The reservation is to be made
under circumstances that would afford the offended party a
reasonable opportunity to make such reservation(Sec. l[a],
Rule 111, Rules of Court).

No reservation of the civil action in Batas Pambansa Big. 22


(Bar 2001; 2002)
1. While the rule allows the offended party to reserve
the right to institute the civil action, such right does not apply
to a prosecution of criminal
a action for violation of Batas
Pambansa Big. 22, which is the law on bouncing checks. The
criminal action in this case shall be deemed to include the
corresponding civil action. No reservation to file such civil
action separately shall be allowed. Upon the filing of the joint
and civil actions, the offended party shallin
pay
full the filing
fees based on the amount of the check involved. This amount
shall also be considered as the actual damages claimed
(Sec.
It should be observed that
l[b], Rule 111, Rules of Court).
what the rule prohibits is the filing of a reservation to file the
civil action arising from Batas Pambansa Big 22. It does not
prohibit the waiver of the civil action or the institution of the
civil action prior to the criminal action.
2. Even under the amended rules, a separate proceed-
ing for the recovery of civil liability in cases of violation of
Batas Pambansa Big. 22 is allowed when the civil case is filed
ahead of the criminal case
(Lo Bun Tiong v. Balboa, G.R. No.
114 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

158177, January 28, 2008).Quoting the earlier case Hyatt


of Industrial
Manufacturing Corp. v. Asia Dynamic Electrix Corp. (465 SCRAthe
454)Court
noted inLo Bun Tiong:
w
x x x This rule [Rule 111(b) of the 2000 Revised Rules of Criminal
Procedure] was enacted to help declog court dockets which are filled with B.P. 22
cases as creditors actually use the courts as collectors. Because ordinarily no filing
fee is charged in criminal cases for actual damages, the payee uses the
intimidating effect of a criminal charge to collect his credit grab's and sometimes,
upon being paid, the trial court is not even informed thereof. The inclusion of the
civil action in the criminal case is expected to significantly lower the number of
cases filed before the courts for collection based on dishonored checks. It is also
expected to expedite the disposition of these cases. Instead of instituting two
separate cases, one for criminal and another for civil, only a single suit shall be filed
and tried. It should be stressed that the policy laid down by the Rules is to
discourage the separate filing of the civil action. The Rules even prohibit the
reservation of a separate civil action, which means that one can no longer file a
separate civil case after the criminal complaint is filed in court. The only instance
when separate proceedings are allowed is when the civil action is filed ahead of
the criminal case. Even then, the Rules encourage the consolidation of the civil
and criminal cases. We have previously observed that a separate civil action for
the purpose of recovering the amount of the dishonored checks would only prove
to be costly, burdensome and time-consuming for both parties and would further
delay the final disposition of the case. This multiplicity of suits must be avoided.
Where petitioners' rights may be fully adjudicated in the proceedings before the
trial court, resort to a separate action to recover civil liability is clearly
unwarranted."(Emphasis supplied)

When the separate civil action is suspended


1. After the criminal action is commenced, the separate civil action
arising therefrom cannot be instituted until final judgment has been entered in
the criminal action
(Sec. 2, Rule
CHAPTER III 115
PROSECUTION OF CIVIL ACTION
(Rule 111)

111, Rules of Court).The rule indicates that preference is given to the


resolution of the criminal action.
2. It is submitted that even if the right to institute the civil action
separately has been reserved, the separate civil action cannot however, be
instituted until final judgment has been entered in the criminal action
previously instituted.
Also, if the civil action was commenced before the institution of the
criminal action, the civil action shall be suspended in whatever stage it may be
found before judgment on the merits, once the criminal action is filed. The
suspension shall last until final judgment is rendered in the criminal
(Sec. action
This rule however, does not apply to independent
2, Rule 111, Rules of Court).
civil actions discussed earlier and covers only civil actions arising from the
offense charged.

Consolidation of the civil action with the criminal action


1. It is clear that the above rule, as it stands, gives precedence to the
resolution of the criminal action and will necessarily result in a delay in the
disposition of the civil action which may have
been already filed or of
the action
the right to the filing of which has been reserved. However, the rule also affords
a remedy to avoid such a delay. The offended party may move for the
consolidation of the civil action with the criminal action in the court trying the

criminaljudgment
before action. The
onmotion for consolidation
the merits bythe
is rendered in the civil
offended party
action.toThe
beisfiled
consolidated
criminal and civil actions shall be tried and decided(Sec.
jointly
2, Rule 111,
Rules of Court).
2. If the civil action was commenced ahead of the criminal action and
evidence had already been adduced in the civil action even before the
institution of the criminal action, the evidence so adduced shall be deemed
automatically reproduced in the criminal action without prejudice to the right
to cross- examine the witnesses presented by the offended party in the
criminal case. The consolidation shall not likewise prejudice the right of the
parties to present additional evidence
(Sec. 2, Rule 111, Rules of Court).
116 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

Suspension of the period of prescription


Where there is no consolidation of the civil action with
the criminal action and the civil action is suspended or the
civil action cannot be instituted separately until after final
judgment is rendered in the criminal action, the prescriptive
period of the civil action shall
be tolled during the pendency of
the criminal action
(Sec.2, Rule 111, Rules of Court).

When no reservation is required; when civil action is not


suspended
1. When the act constituting a crime is at the same time
a violation of Articles 32, 33, 34, and 2176 of the Civil Code,
there is no need to reserve the filing of a separate civil action.
The civil actions under the said articles do not arise from the
offense but from violations of specific provisions of the Civil
Code. Specific attention need be given to the tenor of Sec. 1 of
Rule 111. Under said rule, only the civil arising
action from the
offense chargedshall be deemed instituted with the criminal
action. Actions based on Articles 32,33, and 34 arise from the
law and are commonly called 'independent civil actions' while
those based on Article 2176 arise quasi-delicts.
from They do
not arise from the offense or crime charged and hence, are
not deemed instituted with the filing of the criminal action.
Article 1156 of the Civil Code considers law' and 'quasi-
delicts' as sources of obligations separate and distinct from a
crime (acts or omissions punished by law). Under Article 31 of
the Civil Code, "when the civil action is based on an obligation
not arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter."
2. Article 31 of the Civil Code is reinforced by the Rules
of Court, thus:

"In the cases provided 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 pro-
ceed independently of the criminal action... In no case,
however, may the offended party recover damages twice
CHAPTER III 117
PROSECUTION OF CIVIL ACTION
(Rule 111)

for the same act or omission charged in the criminal action"


(Sec. 3, Rule 111,
Rules of Court).

To reiterate: Under Sec. 1 of Rule 111, what is "deemed instituted" with


the criminal action is only the action to recover civil liability "arising from the
offense charged." Actions under Articles 32, 33, 34 and 2176 of the Civil Code
may be filed separately and prosecuted independently even without any
reservation in the criminal action. The failure to make a reservation in the
criminal action is not a waiver of the right to file a separate and independent
civil action based on these articles of the Civil Code
(Casupanan v. Laroya, 388
SCRA 28).In a subsequent case, the Supreme Court further held that what is
deemed instituted in every criminal prosecution is the civil liability arising from
the crime or delict
per se(civil liability
ex delicto),but notthose liabilities arising
from quasi- delicts, contracts or quasi-contracts(Philippine Rabbit Bus Lines v.
People, 427 SCRA 456).
3. Article 31 of the Civil Code as well as Sec. 3 of Rule 111 of the Rules of
Court both support the conclusion that the civil actions based on Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines are not suspended by the
commencement of the criminal action because they may proceed
independently of the criminal proceedings.

Counterclaim, cross-claim, third-party claim in a criminal action


1. A court cannot entertain counterclaims, cross-claims and third
party complaints in the criminal action. A criminal case is not the proper
proceedings to determine the private complainant's civil liability. A court trying
a criminal case is limited to determining the guilt of the accused, and if proper,
to determine his civil liability. It cannot award damages in favor of the accused
(Maccay v. Nobela, 454 SCRA 504).
2. The rule is explicit:
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
118 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

thereof may be litigated in a separate civil


(Sec.action
l[a], Rule 111, Rules of Court).

Rules on filing fees


Filing fees apply when damages are being claimed by the offended party.
The following summarizes the rule on filing fees:
(a) There are no filing fees required for actual damages (Sec.
claimed
l[a], Rule 111)unless required by the Rules. Examples: In Batas Pambansa Big.
22 cases, the filing fees shall be paid based on the amount of the check and
shall be paid in full ("Sec. In estafa cases, the
l[b], Rule 111, Rules of Court);
filing fees shall be paid based on the amount involved
(Sec. 21[a], AM. No.
04-2-04, August 16,2004).
(b) Filing fees shall be paid by the offended party upon the filing of the
criminal action in court where he seeks for the enforcement of the civil liability
of the accused by way of moral, nominal, temperate or exemplary damages
but other than actual damages, and where the amount of such damages is
specified in the complaint or information. 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 (Sec. l[a], Rule 111, Rules of Court).

Effect of death of the accused on the civil action


1. If the accused dies after arraignment and during the pendency of the
criminal action, the civil liability of the accused arising from the crime is
extinguished but the independent civil actions mentioned in Sec. 3 of Rule 111
and civil liabilities arising from other sources of obligation may be continued
against the estate or legal representative of the accused after proper
substitution or against the 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 ad litemfor
guardian
the minor heirs(Sec. 4, Rule 111, Rules of Court).
CHAPTERIII 119
PROSECUTION OF CIVIL ACTION
(Rule 111)

The court shall forthwith order the legal representative or


representatives to appear and be substituted within a period of thirty (30) days
from notice(Sec. 4, Rule 111, Rules of Court).
2. If the accused dies before arraignment, the case shall be dismissed
but the offended party may file the proper civil action against the estate of the
deceased(Sec. 4, Rule 111, Rules of Court).
3. The Court inABS-CBN Broadcasting Corporation v. Ombudsman
on the basis of existing jurisprudence like
(G.R. No. 133347, October 15, 2008),
People v. Bayotas (G.R. No. 102007, September 2,1994), reiterated some
rules which may be summarized as follows:
(a) The death of the accused prior to final judgment terminates
his criminal liability and
only the civil liabilitydirectly arising from and
based solely on the offense committed, i.e., civil liability"ex delicto in
senso strictio-re." But the claim for civil liability predicatedsource
on a of
obligation other than a delict survives notwithstanding the death of the
accused. This source of obligation may be from law, contract,
quasi-contract or quasi-delict. In other words, the civil liability based
solely on the criminal action is the one that is extinguished.
(b) Where the civil liability survives, an action for recovery
therefore may be pursued but only by way of filing a separate civil
action.The separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the
source of obligation upon which the same is (ABS-CBN
based Broad-
casting Corporation v. Ombudsman, G.R. No. 133347, October
15,2008).
4. The death of the accused during the pendency of his appeal with
the Supreme Court totally extinguished his criminal liability. Such extinction is
based on Article 89 of the Revised Penal Code. The death of the accused
likewise extinguished the civil liability that was based exclusively on the crime
for which the accused was convicted
{i.e., ex delicto),
120 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

because no final judgment of conviction was yet rendered by the time of his
death. Only civil liability predicated on a source of obligation other than the
delict survived the death of the accused, which the offended party can recover
by means of a separate civil action C of the Philippines v. Bringas Bunay
People
y Dam-at, G.R. No. 171268,, September 14,2010). Thus, the death of the

accused
the civil pending appealsolely
liability based of histhereon
conviction
{People v.extinguishes his criminal
Jaime Ayochok liability and
y Tauli, G.R.
No. 175784, August 25,2010).

Novation: extinguishment of criminal liability


It is best to emphasize that "novation is not one of the grounds
prescribed by the Revised Penal Code for the extinguishment of criminal
liability." In catena
la of cases, it wasruled that criminal liability for estafa is not
affected by a compromise or novation of contract. The crime of estafa,
reimbursement or belated payment to the offended party of the money
swindled by the accused does not extinguish the criminal liability of the latter.
Also, "criminal liability for estafa is not affected by compromise or novation of
contract, 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." 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
(Metropolitan Bank and Trust Company v. Rogelio
his criminal liability
Reynaldo and Jose C. Adrandea, G.R. No. 164538, August 9,2010; Citations
omitted).

Effect of acquittal or the extinction of the penal action on the civil action or
civil liability
1. The extinction of the penal action does not carry with it the extinction
of the civil action. However, the civil action based on delict may 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
CHAPTER III 121
PROSECUTION OF CIVIL ACTION
(Rule 111)

exist (Sec. 2, Rule 111, Rules of Court).


The civil action based on delict may,
however, be deemed extinguished if there is a finding on the final judgment in
the criminal action that the act or omission from which the civil liability may
arise did not exist(Hun Hyung Park v. Eung Wong Choi, G.R. No. 165496,
February 12, 2007).
2. In case of acquittal, the accused may still be adjudged civilly liable.
The extinction of the penal action does not carry with it the extinction of the
civil action where (a) the acquittal is based on reasonable doubt as only
preponderance of evidence is required; (b) the court declares that the liability
of the accused is only civil; and (c) the civil liability of the accused does not arise
from or is not based upon the crime of which the accused was acquitted. The
civil liability is not extinguished by acquittal where such acquitted is based on
lack of proof beyond reasonable doubt, since only preponderance of evidence
is required in civil cases
(Ching v. Nicdao, 522 SCRA 316, April 27, 2007; Box v.
People, 532 SCRA 284, September 5, 2007).
3. Similarly, it was again held that when the trial court acquits the
accused or dismisses the case on the ground of lack of evidence to prove the
guilt of the accused beyond reasonable doubt, the civil action is not
automatically extinguished since liability under such an action can be
determined based on mere preponderance of evidence. The offended party
may peel off from the terminated criminal action and appeal from the implied

dismissal
No 169711,of February
his claim 8,2010). (Heirs of Sarah Marie Palma Burgos, G.R.
for civil liability
4. Thus, under Section 2 of Rule 120, of the Rules of Court, a trial
court, in case of acquittal of an accused, is to state whether the prosecution
absolutely failed to prove his (accused) guilt or merely failed to prove his guilt
beyond reasonable doubt, and in either case, it shall determine if the act or
omission from which the civil liability might arise did not exist. If after a perusal
of the decision of the trial court it shows that it found that
acts
theor omissions
from which the civil liability of respondents might arise did not exist,
122 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

there is no basis to award any civil liability to the private complainants


Ramon (
Garces v. Simplicio Hernandez, et al., G.R. No. 180761, August 18,2010).
5. A more recent case is illustrative of the principle subject of this topic.
Here, the petitioner was charged with the crime of reckless imprudence
resulting in multiple homicide and multiple serious physical injuries with
damage to property in the Municipal Trial Court.
After trial on the merits, the MTC acquitted petitioner of the crime
charged. Petitioner was, however, held civilly liable and was ordered to pay the
heirs of the victims actual damages, civil indemnity for death, moral damages,
temperate damages and loss of earning capacity.
Petitioner appealed to the Regional Trial Court contending that the
Municipal Trial Court erred in holding him civilly liable in view of his acquittal
but the Regional Trial Court affirmed the judgment appealed from
in toto.
Refusing to give up, petitioner appealed to the Court of Appeals which
rendered a decision affirming the judgment of the Regional Trial Court.
Left with no other recourse, petitioner now argued in the Supreme Court
that his acquittal should have freed him from payment of civil liability.
Emphatically, the Court declared: "We disagree.
"The rule is that every person criminally liable is also civilly liable. Criminal
liability will give rise to civil liability only if the felonious act or omission results in
damage or injury to another and is the direct and proximate cause thereof.
Every crime gives rise to (1) a criminal action for the punishment of the guilty
party and (2) a civil action for the restitution of the thing, repair of the damage,
and indemnification for the losses.
However, the reverse is not always true. In this connection, the relevant
portions of Section 2, Rule 111 and Section 2, Rule 120 of the Rules of Court
provide:
CHAPTER III 123
PROSECUTION OF CIVIL ACTION
(Rule 111)


Sec. 2.When separate civil action is suspended.
xxx

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, (emphasis supplied)
"Sec. 2. — xxx
Contents of the judgment.

In case the judgment is of acquittal, it shall state whether the evidence of


the prosecution absolutely failed to prove the guilt of the accused or merely failed
to prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise did not
exist, (emphasis supplied)

Thus, the rule is that the acquittal of an accused of the crime charged will
not necessarily extinguish his civil liability, unless the court declares in a final
judgment that the fact from which the civil liability might arise did not exist.
Courts can acquit an accused on reasonable doubt but still order payment of
civil damages in the same case. It is not even necessary that a separate civil
action be instituted.
In this case, the MTC held that it could not ascertain with moral certainty
the wanton and reckless manner by which petitioner drove the bus in view of
the condition of the highway where the accident occurred and the short
distance between the bus and the taxi before the collision. However, it
categorically stated that while petitioner may be acquitted based on
reasonable doubt, he may nonetheless be held civilly liable.
The RTC added that there was no finding by the MTC that the act from
which petitioner's civil liability may arise did not exist. Therefore, the MTC was
correct in holding petitioner civilly liable to the heirs of the victims of the
collision for the tragedy, mental anguish and trauma they suffered plus
expenses they incurred during the wake and interment.
124 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

In view of the pronouncements of the MTC and the RTC, we agree with
the conclusion of the CA that petitioner was acquitted not because he did not
commit the crime charged but because the RTC and the MTC could not
ascertain with moral conviction the wanton and reckless manner by which
petitioner drove the bus at the time of the accident. Put differently, petitioner
was acquitted because the prosecution failed to prove his guilt beyond
reasonable doubt. However, his civil liability for the death, injuries and
damages arising from the collision is another matter.
While petitioner was absolved from criminal liability because his
negligence was not proven beyond reasonable doubt, he can still be held civilly
liable if his negligence was established by preponderance of evidence. In other
words, the failure of the evidence to prove negligence with moral certainty
does not negate (and is in fact compatible with) a ruling that there was
preponderant evidence of such negligence. And that is sufficient to hold him
civilly liable.
Thus, the MTC (as affirmed by the RTC and the CA) correctly imposed
civil liability on petitioner despite his acquittal. Simple logic also dictates that
petitioner would not have been held civilly liable if his act from which the civil
liability had arisen did not in fact exist"(Romero v. People, G.R. No.
167546July 17,2009).

Effect of payment of the civil liability


Payment of civil liability does not extinguish criminal(Cabieo
liabilityv.
While there may be
Dimaculangan-Querijero, 522 SCRA 300, April 27, 2007).
a compromise upon the civil liability arising from the offense, such compromise
shall not extinguish the public action for the imposition of the legal penalty
(Art. 2034, Civil Code of the Philippines).

Effect of judgment in the civil case absolving the defendant


A final judgment rendered in a civil action absolving a 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
(Sec. 5, Rule 111, Rules of Court).
CHAPTERIII 125
PROSECUTION OF CIVIL ACTION
(Rule 111)

Subsidiary liability of employer


The provisions of the Revised Penal Code on subsidiary liability are
deemed written into the judgments in cases to which they apply. Thus, in the
dispositive portion of its decision, the trial court need not expressly pronounce
the subsidiary liability of the employer. Nonetheless, before the employers'
subsidiary liability is enforced, adequate evidence must exist establishing that
(1) they are indeed the employers of the convicted employees; (2) they are
engaged in some kind of industry; (3) the crime was committed by the
employees in the discharge of their duties; and (4) the execution against the lat-
ter has not been satisfied due to insolvency. These conditions may be
determined in the same criminal action in which the employee's liability,
criminal and civil, has been pronounced, in a hearing set for that precise
purpose, with due notice to the employer, as part of the proceedings for the
execution of the judgment (Rolito Calang and Philtranco Service Enterprises
Inc. v. People, G.R. No. 190696, August 3,2010).

Concept of a prejudicial question (Bar 1999)


1. A prejudicial question is an issue involved in a civil case which is
similar or intimately related to the issue raised in the criminal action, the
resolution of which determines whether or not the criminal action may
proceed. To constitute a prejudicial question, the rule also requires, aside from
the related issues, that the civil action be instituted
previouslyor ahead of the
(Sec. 7, Rule 111, Rules of Court).
criminal action
2. A prejudicial question is that which arises in a case, the resolution
of which is a logical antecedent of the issue involved in that case. Because the
jurisdiction to try and resolve the prejudicial question has been lodged in
another tribunal, the applicable rule is that the proceedings in the second case
may be suspended to await the resolution of the prejudicial question infirst
the
case (Suggested readings: Omictin v. Court of Appeals, 512 SCRA 70; People
v. Sandiganbayan, 485 SCRA 473; Reyes v. Pearlbank Securities, Inc., 560
SCRA 518; Coca-cola Bottlers [Phils.], Inc. v. Social Security Commission, 560
SCRA 719).
126 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

Reason for the principle


The reason behind the principle of a prejudicial question is to avoid two
conflicting decisions in the civil case and in the criminal casev. Suarez,
(Jose
556 SCRA 773; Sy Thiong Siou v. Sy Chim, G.R. No. 174168, March 30,2009).
Requisites for a prejudicial question (Bar 1999)
1. Sec. 7 of Rule 111 of the Rules of Court provides:
"Sec. 7.Elements of a 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" (Jose v. Suarez, 556 SCRA 773).

Thus, for a civil action to be considered prejudicial to a criminal case, the


following requisites must be present: (1) the civil case involves facts intimately
related to those upon which the criminal prosecution would be based; (2) in
the resolution of the issue or issues raised in the civil action, the guilt or in-
nocence of the accused would necessarily be determined; and (3) jurisdiction
to try said question must be lodged in another tribunal
(Magestrado v. People,
G.R. No. 148072, July 10, 2009).
2. The phraseology of Sec. 7 presupposes the existence of two
actions— one civil and the other criminal. Hence, strictly speaking, a prejudicial
question under Sec. 7 of Rule 111
may notbe invoked in any of the following
situations: (a) both cases are criminal, (b) both civil, (c) both cases are ad-
ministrative, (d) one case is administrative and the other civil, or (e) one case is
administrative and the other criminal. To employ the word "prejudicial" in any
of these situations is to use the same not as a strict legal term but as a mere
journalistic device.
3. The same phraseology of Sec. 7 also discloses that even if one case
is civil and the other criminal, the principle of a prejudicial question will not
arise if the criminal case was
CHAPTER III 127
PROSECUTION OF CIVIL ACTION
(Rule 111)

instituted prior to the civil case. It does not arise because the rule does not
merely refer to an instituted civil action but specifically to a
"previously
instituted*civil action. Neither does it refer to a previously instituted criminal
action. That the civil action must have been instituted ahead of the criminal
action is confirmed by the same rule which makes reference to a
"subsequent
criminal action "
4. It was affirmed that under the amendment to the Rules of Court, a
prejudicial question is understood in law as that which must precede the
criminal action and which requires a decision before a final judgment can be
rendered in the criminal action with which said question is closely connected.
The civil action must be instituted prior to the institution of the criminal action.
If the criminal information was filed ahead of the complaint in the civil case, no
prejudicial question exists(Torres v. Garchitorena, G.R. No. 153666,
December 27,2002).
5. The tenor of Sec. 7 likewise presupposes that the issue that leads
to a prejudicial question is one that arises in the civil case and not in the criminal
case. It is the issue 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.
6. In unmistakable terms, it was stressed that a prejudicial question
comes into play generally in a situation where a civil action and a criminal
action are both pending and there exists in the former an issue which must be
preemptively resolved before the criminal action may proceed. The issue raised
in the civil action would be determinative
juris et de jureof the guilt or
innocence of the accused in the criminal(Sy
case
Thiong Siou v. Sy Chim, G.R.
No. 174168, March 30, 2009).
7. Another vital element of a prejudicial question is one which has
something to do with the issues involved. It is worth remarking that not every
issue raised in the civil action will result in a prejudicial question. The rule clearly
implies that
128 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
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it is not enough that both cases involve the same facts or even the same or
similar issues to make the civil case prejudicial to the criminal case. The mere
claim that the issues in both cases are intimately related will not necessarily
make the issue in the civil case prejudicial to the resolution of the issue in the
criminal case. It is critical to show that the issue in the civil case is
'determinative' of the issue in the criminal case. In the words of the rule: "x x x
the resolution of such issuedetermines whether or not the criminal action
may proceed" (Sec. 7, Rule 111, Rules of Court).
It is apparent that the exact parameters of what is 'determinative* has
not been defined by the rule thus, leaving to the court the task of adjudicating
upon the existence or non-existence of that vital factor in the application of the
principle. Nevertheless, one consequence appears quite clear: If the resolution
of the issue in the civil action will not determine the criminal responsibility of
the accused in the criminal action based on the same facts, the civil case does
not involve a prejudicial question. Neither is there a prejudicial question if the
civil and the criminal action can, according to law, proceed independently of
each other, that is, the criminal action can proceed without waiting for the
resolution of the issues in the
civil case.

Effect of the existence of a prejudicial question; suspension of the criminal


action (Bar 1995; 1999; 2010)
1. A petition for the suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may (Sec. 6, Rule
be filed
Under the clear terms of Sec. 6, it is worth remembering
111, Rules of Court).
that the rule requires the filing petition
of a before the suspension of the
criminal action. The rule therefore, as it appears, precludes a
motu proprio
suspension of the criminal action.
2. The need for the filing of a petition finds support in jurisprudence
which declares that since suspension of the proceedings in the criminal action
may be made only upon petition and not at the instance of the judge or the
investigating prosecutor, the latter cannot take cognizance of a claim of a
CHAPTER III 129
PROSECUTION OF CIVIL ACTION
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prejudici
al question without a petitionsuspend
to being filed. Sincepetition
a to
suspend can be filed only in the criminal action, the determination of the
pendency of a prejudicial question should be made at the first instance in the
criminal action, and not before the Supreme Court in an appeal from the civil
action (Integrated Bar of the Philippines v. Atienza, G.R. No. 175241,
February 24,2010).
3. It also needs to be stressed that when there is a prejudicial question,
the action to be suspended is the criminal and not the previously instituted civil
action. When there is a prejudicial question, the criminal case may be
suspended pending the final determination of the issues in the civil case. 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.
The general rule provides that if the civil action was commenced before
the institution of the criminal action, the civil action shall be suspended in
whatever stage it may be found before judgment on the merits, once the
criminal action is commenced. "The suspension shall last until final judgment is
rendered in the criminal action." A prejudicial question is an exception to this
rule. The principle of prejudicial question is not within the ambit of this general
rule under Sec. 2 of Rule
111.
Suspension does not include dismissal
The rule authorizing the suspension of the criminal case does not
prescribe the dismissal of the criminal action. It only authorizes its suspension.
The suspension shall be made upon the filing of a petition for suspension.
A case was emphatic in reiterating this principle. The Yap
casev.of
Paras, 205 SCRA 625,stressed that the rule says "suspension, and not
dismissal."
Where to file the petition for suspension
1. The filing for a petition for suspension does not require that the
criminal case be already filed in court.
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UPDATED EDITION

It is sufficient that the case be in the stage of preliminary investigation as long


as there has already been a previously instituted civil case. Also, the petition for
suspension is not to be filed in the civil case but in the criminal case.
2. The rule provides therefore, that a petition for the suspension of the

criminal action
preliminary may be filed
investigation. Whenin the
the criminal
office ofaction
the prosecutor conducting
has been filed in courtthe
for
trial, the petition to suspend shall be filed in the same criminal action at any
time before the prosecution rests
(Sec. 6, Rule 111, Rules of Court).

Case illustrations
1. The caseoiPimentel v. Pimentel, G.R. No. 172060, September 13,
2010, lucidly illustrates when the principle of prejudicial question does not
apply. Here, the private respondent filed an action for frustrated parricide
against the petitioner. Several months after, the private respondent filed an
action for the declaration of the nullity of their marriage. The petitioner filed an
urgent motion to suspend the proceedings in the court where the criminal
case was pending on the ground of the existence of a prejudicial question. The
petitioner asserted that since 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.
When the case reached the Court of Appeals, the court concluded
against the existence of a prejudicial question. The Court of Appeals ruled that
in the criminal case for frustrated parricide, the issue is whether the offender
commenced the commission of the crime of parricide directly by overt acts
and did not perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance. On the other hand, the
issue in the civil action for annulment of marriage is whether petitioner is
psychologically incapacitated to comply with the essential marital obligations.
The Court of Appeals continued that even if the marriage
CHAPTERIII 131
PROSECUTION OF CIVIL ACTION
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between petitioner and respondent would be declared void, it would be


immaterial to the criminal case because prior to the declaration of nullity, the
alleged acts constituting the crime of frustrated parricide had already been
committed and all that is required for the charge of frustrated parricide is that
at the time of the commission of the crime, the marriage is still subsisting.
The Supreme Court sustained the conclusion of the Court of Appeals
with an added reason — that the facts show that the criminal case was filed
ahead of the case for declaration of nullity. The rule is clear, wrote the Court,
that for a prejudicial question to exist, the civil action must be instituted first
before the filing of the criminal action. As such, the requirement of Section 7,
Rule 111 of the 2000 Rules on Criminal Procedure was not met since the civil
action was filed subsequent to the filing of the criminal action.
The Court added that the resolution of the civil action is not a prejudicial
question that would warrant the suspension of the criminal action. While the
relationship between the offender and the victim is a key element in the crime
of parricide, the issue in the annulment of marriage is not similar or intimately
related to the issue in the criminal case for parricide. The issue in the civil case
for annulment of marriage under Article 36 of the Family Code is whether
petitioner is psychologically incapacitated to comply with the essential marital
obligations. The issue in parricide is whether the accused killed the victim. In
this case, since petitioner was charged with frustrated parricide, the issue is
whether he performed all the acts of execution which would have killed
respondent as a consequence but which, nevertheless, did not produce it by
reason of causes independent of petitioner's will. At the time of the
commission of the alleged crime, petitioner and respondent were married. The
subsequent dissolution of their marriage, in case the petition in the civil case is
granted will have no effect on the alleged crime that was committed at the
time of the subsistence of the marriage. In short, even if the marriage between
petitioner and respondent is annulled, petitioner could still be held criminally
liable since at the time
132 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

of the commission of the alleged crime, he was still married to respondent.


2. The case ofMagestrado v. People G.R. No. 148072, July 10,2009
, is
likewise illuminating.
Here, the private respondent filed a criminal complaint for perjury

against the petitioner for executing an affidavit of loss of a certificate of title of


a parcel of land despite allegedly knowing that no loss of the certificate
occurred because the petitioner had actually delivered the same to the private
respondent as security for a loan which the petitioner contracted from the
private respondent. After an information for perjury against the petitioner was
instituted, he filed a motion for suspension of the proceedings based on a
prejudicial question. He alleged that a case filed against him by the private
respondent for recovery of a sum of money is pending before another court.
He further alleged that another civil case is also pending before another branch
of the same court when he filed against private respondent a complaint for
cancellation of mortgage, delivery of title and damages. The issues in the said
civil cases according to petitioner are similar or intimately related to the issues
raised in the criminal action.
As to whether it was proper to suspend the criminal case in view of the
pending civil cases, the Supreme Court observed that the pending civil cases
are principally for the determination of whether a loan was obtained by the
petitioner from the private respondent and whether petitioner executed a real
estate mortgage in favor of the private respondent. On the other hand, the
criminal case involves the determination of whether petitioner committed
perjury in executing an affidavit of loss to support his request for issuance of a
new owner's duplicate copy of the certificate of title.
The Court went on to hold that it is evident that the civil cases and the
criminal case can proceed independently of each other. Regardless of the
outcome of the two civil cases, it will not establish the innocence or guilt of the
petitioner in the criminal case for perjury. The purchase by petitioner of the
CHAPTER III 133
PROSECUTION OF CIVIL ACTION
(Rule 111)

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.
3. Another case on the other hand, demonstrates the application of the
concept of "determinativeness" as a critical element under the principle of

prejudicial question.
In Omictin v. Court of Appeals, G.R. No. 148004, January 22, ,2009
the
petitioner, operations manager of a corporation filed a complaint for two
counts of estafa against the private respondent. He alleged that the private
respondent, despite repeated demands, refused to return the two company
vehicles entrusted to him when he was still the president of the corporation.
The private respondent avers that the demands are not valid demands, the
petitioner not having the authority to act for the corporation in view of the
invalidity of his appointment. The investigating prosecutor however,
recommended the indictment of the private respondent and was charged with
the crime of estafa.
The private respondent then filed a motion to suspend proceedings on
the basis of a prejudicial question because of the then pending case with the
Securities and Exchange Commission (later transferred to the RTC), a case
involving the same parties. It appears that earlier, the private respondent filed a
case for the declaration of nullity of the respective appointments of the
petitioner and other individuals as corporate officers. The case likewise
involved the recovery of share in the profits, involuntary dissolution and the
appointment of a receiver, recovery of damages and an application for a tem-
porary restraining order and injunction against the corporation and some of its
officials.
The case filed by the private respondent also alleged that the
appointment of certain officers were invalid
because it was inderogation of the
corporate by-laws requiring that the president must be chosen from among
the directors, and elected by the affirmative vote of a majority of all the
members of the board of directors. Since the appointment of the officer
responsible for appointing the petitioner was
134 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

invalid, the petitioner's appointment as operations manager was likewise


allegedly invalid. Thus, private respondent claims, the petitioner neither has
the power nor the authority to represent or act for the corporation in any
transaction or action before any court of justice. Citing as a reason the absence
of a board resolution authorizing the continued operations of the corporation
as a corporate entity, the private respondent allegedly retained possession of
the office equipment of the company in a fiduciary capacity as director of the
corporation pending its dissolution and/or the resolution of the intracorporate
dispute.
On the issue of whether or not a prejudicial question exists to warrant
the suspension of the criminal proceedings pending the resolution of the
intra-corporate controversy in the RTC, the Court sustained the theory of the
private respondent that the resolution of the issues raised in the intracorporate
dispute will determine the guilt or innocence of private respondent in the
crime of estafa filed against him by the petitioner. One of the elements of the
crime of estafa with abuse of confidence under Article 315, par. 1(b) of the
Revised Penal Code is "a demand made by the offended party to the offender x
x x." Under the circumstances, since the alleged offended party is the
corporation, the validity of the demand for the delivery of the subject vehicles
rests upon the authority of the person making such a demand on the
company's behalf. In the civil cases, the private respondent was challenging the
petitioner's authority to act for the corporation in the corporate case pending
before the RTC. Taken in this light, added the Court, 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.
4. Batas Pambansa Big. 22 controversies present a special class of cases
with remarkably consistent rulings against the appreciation of a prejudicial
question. One case worthy of note and which demonstrates an absence of a
prejudicial questionYap
is v. Cabales, G.R. No. 159186, June
5,2009.
Here, the petitioner issued bouncing checks to the payee which were
later rediscoiinted in favor of private respondents.
CHAPTER III 135
PROSECUTION OF CIVIL ACTION
(Rule 111)

When the checks were dishonored, the private respondents then filed civil
actions to collect sums of money with damages against the petitioner in the
RTC. Subsequently informations were also filed against the petitioner for
violation of Batas Pambansa Big. 22.
In the criminal cases, petitioner filed separate motions to suspend
proceedings on account of the existence of a prejudicial question. Petitioner
prayed that the proceedings in the criminal cases be suspended until the civil
cases pending before the RTC were finally
resolved. The main contention of the
petitioner is that a prejudicial question, as defined by law and jurisprudence,
exists because the civil cases for collection earlier filed against him for collection
of sum of money and damages were filed ahead of the criminal cases for
violation of Batas Pambansa Big. 22. He further argued that, in the pending civil
cases, the issue as to whether private respondents are entitled to collect from
the petitioner despite the lack of consideration, is an issue that is a logical
antecedent to the criminal cases for violation of Batas Pambansa Big. 22. For if
the court rules that there is no valid consideration for the check's issuance, as
petitioner contends, then it necessarily follows that he could not also be held
liable for violation of Batas Pambansa Big. 22. The court denied the motions for
lack of merit. The subsequent motions for reconsideration were likewise
denied.
Ruling on the issue on appeal to it, the Court explained t h a t " x x x The

issue in theBig.
Pambansa criminal cases
22, while in is whether
the theitpetitioner
civil case, is whetheris the
guilty of violating
private Batas
respondents
are entitled to collect from the petitioner the sum or the value of the checks
that they have rediscounted from the payee." For the Court, the resolution of
the issue raised in the civil action is not determinative of the guilt or innocence
of the accused in the criminal cases against him, and there is no necessity that
the civil case be determined first before taking up the criminal cases. Citing the
earlier case ofLozano v. Martinez (146 SCRA 323), the Court added that in a
criminal action for violation of Batas Pambansa Big. 22, it is the mere issuance
of worthless
136 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

checks with knowledge of the insufficiency of funds to support the checks


which constitutes the offense. As a consequence, 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 Batas
Pambansa
Big. 22.
5. Another case similarly decided is that
Sps.of
Jose v. Sps. Suctrez, G.R.
No. 176795, June 30,2008.
The respondents who are spouses, are the debtors of the petitioners,
also spouses under an agreement which required the respondents to pay a
daily interest on their debts but which interest was later on increased. It was
the practice for petitioners to give the loaned money to the respondents and
the latter would deposit the same in the petitioners' account to cover the
maturing postdated checks they had previously issued in payment of their
other loans. The respondents would then issue checks in favor of petitioners in
payment of the amount borrowed from them with the agreed daily interest.
Respondents later filed a complaint against petitioners seeking the
declaration of "nullity of interest of 5% per day, fixing of interest, recovery of
interest payments" and the issuance of a writ of preliminary injunction, alleging
that the interest rate of 5% a day is iniquitous, contrary to morals, done under
vitiated consent and imposed using undue influence by taking improper
advantage of their financial distress. They claimed that due to serious liquidity
problems, they were forced to rely on borrowings from banks and individual
lenders, including petitioners, and that they had to scramble for funds to cover
the maturing postdated checks they issued to cover their other borrowings.
Thereafter, several cases for violation of Batas Pambansa Big. 22 were
filed against one of the respondents who in turn filed motions to suspend the
criminal proceedings on the ground of prejudicial question, on the theory that
the checks subject of the Batas Pambansa Big. 22 cases are void for being
contra bonos moresor for having been issued in payment of the iniquitous
and unconscionable interest imposed by
CHAPTER III 137
PROSECUTION OF CIVIL ACTION
(Rule 111)

petitioners. The suspension order issued by the lower court was later on
upheld by the Court of Appeals which concluded that if the checks subject of
the criminal cases were later on declared null and void, then said checks could
not be made the bases of criminal prosecutions under Batas Pambansa Big. 22.
In other words, ruled the Court of Appeals, the outcome of the determination
of the validity of the said checks is determinative of guilt or innocence of the
accused in the criminal case.
The Supreme Court reversed, holding that the prejudicial question
theory of the respondents must fail. For the Court, the prejudicial question
posed by respondents is simply whether the daily interest rate of 5% is void,
such that the checks issued by respondents to cover said interest are likewise
void for being , and thus the cases for Batas Pambansa Big.
contra bonos mores
22 will no longer prosper.
The Court stressed that 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 Batas Pambansa Big. 22. What Batas Pambansa Big. 22
punishes is the issuance of a bouncing check and not the purpose for which it
was issued or the terms and conditions relating to its issuance. The mere act of
issuing a worthless check is
malum prohibitumprovided the other elements of
the offense are properly proved. Thus, whether or not the interest rate
imposed by petitioners is eventually declared void for contra
beingbonos
mores will not affect the outcome of the Batas Pambansa Big. 22 cases because
what will ultimately be penalized is the mere issuance of bouncing checks. In
fact, the primordial question posed before the court hearing the Batas
Pambansa Big. 22 cases is whether the law has been breached, that is, if a
bouncing check has been issued.
6. A similar result was reached in yet another more recent case, where
the High Court rejected respondent's' contention that the novation of the credit
line agreement was a prejudicial question in the prosecution for violation
138 CRIMINALPROCEDURE:
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UPDATED EDITION

of Batas Pambansa Big. 22. According to the Court, the mere act of issuing a
worthless check, even if merely as an accommodation, is covered by Batas
Pambansa Big. 22. The agreement surrounding the issuance of dishonored
checks is irrelevant to the prosecution for violation of Batas Pambansa Big. 22,
the gravamen of the offense being the act of making and issuing a worthless
check or a check that is dishonored upon its presentment for payment. Thus,
even if it will be subsequently declared that a novation took place between
respondents and petitioner, respondents are still not exempt from prosecution
for violation of Batas Pambansa Big. 22 for the dishonored checks
(Land Bank
of the Philippines v. Ramon P. Jacinto, G.R. No. 154622, August 3,2010).
7. The earlier case Sabandal
of v. Tongco, G.R. No. 124498, October 5,
2001, involves a petition to suspend the criminal proceedings in the court
where the petitioner is charged with eleven counts of violations of Batas
Pambansa Big. 22 filed in 1992. It appears that three years sifter the institution
of the criminal actions, the petitioner filed with the RTC a complaint against the
private respondent a case for specific performance, recovery of overpayment
and damages.
The issue raised reaching the Supreme Court is whether a prejudicial
question exists to warrant the suspension of the trial of the criminal cases for
violation of Batas Pambansa Big. 22 against petitioner until after the resolution
of the civil action for specific performance, recovery of overpayment, and
damages.
The Court predictably rejected the posturings of the petitioner. There is
no prejudicial question wrote the Court, because the issue in the criminal cases
for violation of Batas Pambansa Big. 22 is whether the accused knowingly
issued worthless checks. The issue in the civil action for specific performance,
overpayment, and damages is whether the petitioner overpaid his obligations
to the private respondent. If, after trial in the civil case, the petitioner is shown
to have overpaid respondent, it does not follow, added the Court, that he
cannot be held liable for the bouncing checks he issued for the mere issuance
of worthless checks with knowledge of the
CHAPTER III 139
PROSECUTION OF CIVIL ACTION
(Rule 111)

insufficiency of funds to support the checks is itself an offense.


Note: The
Supreme Court in this case did not deal with the matter of the criminal action
having been filed ahead of the civil action. The rule at the time the cases were
filed did not require a "previously" instituted civil action. The requirement that
the civil case be filed ahead of the criminal caseresult
is a of the amendment of
the rules of criminal procedure which took effect on December 1, 2000.
8. The effect of a prejudicial question presents an interesting study when
the principle is invoked in marriage relationships. One representative case is
that ofMarbella- Bobis v. Bobis.
In 1985, the respondent contracted his first marriage. Without said
marriage having been annulled, nullified or terminated, the same respondent
contracted a second marriage with the petitioner. Based on petitioner's
complaint-affidavit, an information for bigamy was filed against the
respondent.
Sometime thereafter, respondent initiated a civil action for the judicial
declaration of absolute nullity of his first marriage on the ground that it was
celebrated without a marriage license. Respondent then filed a motion to
suspend the proceedings in the criminal case for bigamy invoking the pending
civil case for nullity of the first marriage as a prejudicial question to the criminal
case. The trial judge granted the motion to suspend the criminal case.
The issue sought to be resolved later in the Supreme Court was whether
the subsequent filing of a civil action for declaration of nullity of a previous
marriage constitutes a prejudicial question to a criminal case for bigamy. In
holding that the civil action for declaration of the nullity of the marriage was not
determinative of the issue in the bigamy case, the Court placed emphasis on
Art. 40 of the Family Code which requires a prior judicial declaration of nullity of
a previous marriage before a party may remarry. Without a judicial declaration
of its nullity, explained the Court, the first marriage is presumed to be
subsisting. The Court found that the respondent was, for all legal intents and
purposes,
140 CRIMINALPROCEDURE:
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UPDATED EDITION

regarded as a married man at the time he contracted his second marriage with
petitioner. Against this legal backdrop, observed the Court, 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. The Court then
concluded that a decision in the civil case was not essential to the
determination of the criminal charge. It is, therefore, not a prejudicial question
(Marbella-Bobis v. Bobis, 336 SCRA 747).
A case decided before the Family Code became effective had a
substantially similar holding.
Landicho v. Relova, G.R. No. L-22579, February
23,1968, a frequently cited case, held that a party cannot judge by himself the
nullity of his first marriage to justify a second marriage before the dissolution of
the first marriage and only when the nullity of the marriage is so declared by
the courts can it be held as void.
9. An action for a declaration of nullity of marriage is not a prejudicial
question to a concubinage case. This was the gist of the holding of the Court in
one remarkable case.
The facts of the case began when the petitioner married his wife in 1973.
In 1997, the petitioner filed a petition for nullity of marriage on the ground of
psychological incapacity under Article 36 of the Family Code. Alleging that it
was petitioner who abandoned the conjugal home and lived with another
woman, the wife of the petitioner subsequently filed a criminal complaint for
concubinage against petitioner and his paramour. Petitioner then filed a
motion to defer the proceedings in the criminal case arguing that the
pendency of the petition for declaration of nullity of his marriage based on
psychological incapacity is a prejudicial question that should merit the
suspension of the criminal case for concubinage filed against him by his wife.
Petitioner likewise harped on the possibility that two conflicting decisions
might result from the civil case for annulment of marriage and the criminal
case for concubinage.
The Court rejected the contentions of the petitioner when the issue was
presented before it for resolution. Unequivocally,
CHAPTER III 141
PROSECUTION OF CIVIL ACTION
(Rule 111)

the Court ruled that the pendency of the case for declaration of nullity of
petitioner's marriage is not a prejudicial question to the concubinage case.
For a civil case to be considered prejudicial to a criminal action as to
cause the suspension of the latter pending the final determination of the civil
case, it must appear not only that the said civil case involves the same facts
upon which the criminal prosecution would be based, but also that in the
resolution of the issue or issues raised in the aforesaid civil action, the guilt or
innocence of the accused would necessarily be determined.
"With regard to petitioner's argument that he could be acquitted of the
charge of concubinage should his marriage be declared null and void, suffice it
to state that even a subsequent pronouncement that his marriage is void is not
a defense"(Beltran v. People, G.R. No. 137567 June 20,2000).
10. Another interesting case involved a petitioner and a private
respondent who were married in 1988. In 1990, while the marriage was still
subsisting, the petitioner contracted a second marriage with another woman.
When private respondent learned of the marriage, she filed a complaint for
bigamy and on the basis of her complaint an information charging bigamy was
duly filed. The month before however, the petitioner had already filed an
action to annul his marriage with the private respondent on the ground that he
was merely forced to marry her, that she concealed her pregnancy by another
man at the time of the marriage and that she was incapacitated to perform her
essential marital obligations.
Subsequently, the private respondent also filed with the Professional
Regulation Commission (PRC) for the revocation of engineering licenses of the
petitioner and the second woman. Petitioner then filed with the PRC a motion
to suspend the administrative proceedings in view of the pendency of the civil
action for annulment of his marriage to private respondent and the bigamy
case.
Although the matters raised had become moot and academic when the
Supreme Court finally decided the case
142 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

because of the termination of the civil case, it nevertheless discussed the


matter of prejudicial question and ruled:
(a) That the outcome of the civil case for annulment of
marriage had no bearing upon the determination of the petitioner's
innocence or guilt in the criminal case for bigamy because all that is
required for the charge of bigamy to prosper is that the first marriage be
subsisting at the time of the marriage. The prevailing rule is found in Art.
40 of the Family Code which requires a prior judicial declaration of nullity
before the void character of the first marriage maybe invoked.
(b) The concept of a prejudicial question involves a civil and a
criminal case. Hie filing of a civil case does not necessitate the suspension
of the administrative proceedings. There is no prejudicial question where
one case is administrative and the other(Tecivil v. Court of Appeals,
G.R. No. 126746, November 29,2000).

- oOo -
Chapter IV

PRELIMINARY INVESTIGATION
Nature of preliminary investigation; purpose (Bar 1985; 1986; 1991; 1998;
2004)
1. Sec. 1 of Rule 112 provides:
" x x x Preliminary investigation is 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 x x x"

2. The definition lucidly declares that a preliminary investigation is a


mere inquiry or a proceeding. It is not therefore, a trial and so does not involve
the examination of witnesses by way of direct or cross-examinations. Its
purpose is not to declare the respondent guilty beyond reasonable doubt but
only to determinefirst, whether or not a crime has been committed and
second, whether or not the respondent is "probably guilty" of the crime. The
question to be answered in a preliminary investigation is not: "Is the
respondent guilty or is he innocent?" More accurately, the question sought to
be answered is: "Is the respondent
probably guiltyand therefore, should go to
trial?"
As jurisprudence puts it: "Preliminary investigation is not the occasion for
the full and exhaustive display of the parties' evidence. It is for the presentation
of such evidence only as may engender a well-founded belief that an offense
has been committed and that the accused is probably guilty thereof. The
validity and merits of a party's accusation or defense, as well as admissibility of
testimonies and evidence,

143
144 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

are better ventilated during the trial proper"


(Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, G.R. No. 135703, April 15,2009).
3. In the conduct of preliminary investigation, the prosecutor does
not decide whether there is evidence beyond reasonable doubt of the guilt of
respondent. A prosecutor merely determines the existence of probable cause,
and to file the corresponding information if he finds it (De
to be so v.
Chavez
Probable cause implies
Ombudsman, G.R. No. 168830-31, February 6, 2007).
probability of guilt and requires more than bare suspicion but less than
evidence to justify a conviction
(Manebo v. Acosta, G.R. No. 169554, October
28,2009).
4. Stated otherwise, the prosecutor in a preliminary investigation
does not determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons who may
be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof
(Spouses Balanguan v. Court of Appeals, G.R. No. 174350, August 13, 2008;
The Presidential AD-Hoc Fact- Finding Committee on Behest Loans [FFCBL] v.
Desierto, G.R. No. 136225, April 23,2008).
For instance, whether the facsimile message is admissible in evidence
and whether the element of deceit in the crime of estafa is present are matters
best ventilated in a full-blown trial, not during the preliminary investigation. A
preliminary investigation is not the occasion for the full and exhaustive display
of the prosecution's evidence. The presence or absence of the elements of the
crime is evidentiary in nature and is a matter of defense that may be passed
upon after a fullblown trial on the merits. In fine, the validity and merits of a
party's defense or accusation, as well as the admissibility of testimonies and
evidence, are better ventilated during
CHAPTER IV 145
PRELIMINARY INVESTIGATION

the trial proper than at the preliminary investigation level Lee, et al. v.
(Samuel
KBC Bank N.V. [Formerly Kredietbanky N.V.I G.R. NO. 164673, January
15,2010).
5. The purposes of a preliminary investigation is to determine whether
(a) a crime has been committed; and (b) there is probable cause to believe that
(Manebo v. Acosta, G.R. No. 169554, October
the accused is guilty thereof
28,2009).
However, the ultimate purpose of a preliminary investigation "is to
secure the innocent against hasty, malicious and oppressive prosecution and to
protect him from an open and public accusation of a crime, from the trouble,
expenses and anxiety of a public trial, and also to protect the State from useless
and expensive prosecutions" (Sales v. Sandiganbayan, G.R. No. 143802,
November 16, 2001; Albay Accredited Constructions Association, Inc. v.
It is designed to
Desierto, G.R. No. 133517, January 30 2006, 480 SCRA 520).
free a respondent from the inconvenience, expense, ignominy and stress of
defending himselfTherself 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
(Ledesma v. Court of Appeals, 278 SCRA 656).

Nature of the right to a preliminary investigation

1. The holding
Constitution. of aa fundamental
It is not preliminary investigation
right and is isnot
notamong
required by the
those rights
guaranteed in the Bill of Rights. The right thereto is of a statutory character and
may be invoked only when specifically created by (Marinas
statute v. Siochi,
104 SCRA 423).But while the right is statutory rather than constitutional, since
it has been established by statute, it becomes a component of due process in
criminal justice(Doromal v. Sandiganbayan, 177 SCRA 354; Duterte v.
Sandiganbayan, 289 SCRA 721; Ong v. Sandiganbayan, 470 SCRA 7).
When so granted by statute, the right is not a mere formal or technical
right. It is a substantive right. To deny
146 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

the claim of the accused to a preliminary investigation would be to deprive him


the full measure of his right to due process
(Duterte v. Sandiganbayan, 289
SCRA 721).
2. There exist decisions holding that a preliminary investigation is
essentially a judicial inquiry and that in a preliminary investigation, the
prosecutor or investigating officer acts as a quasi-judicial officer. Although a
preliminary investigation is, according to the Court, not a trial, and is not
intended to usurp the function of a trial court, it is not a casual affair but is, in
effect a realistic judicial appraisal of the merits of the case. These cases also
ruled that the authority of a prosecutor or an investigating officer to conduct a
preliminary investigation is no less than that of a municipal judge or even a
regional trial court judge and that while the investigating officer is not a
"judge," by the nature of his functions, he is and must be considered to be a
quasi-judicial officer. A preliminary investigation has been called a judicial
inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when
there is an opportunity to be heard and for the production of and weighing of
evidence, and a decision is rendered thereon
(Cruz v. People, 233 SCRA 439;
Sales v. Sandiganbayan, G.R. No. 143802, November 16,2001).
It is worth remarking that the concept of a preliminary investigation as
essentially a judicial inquiry as declared in the 1994 case
Cruz of
v. Peoplewas
adopted by the Department of Justice. The DOJ Manual for Prosecutors citing
Cruz describes a preliminary investigation as "essentially a judicial inquiry since
there is the opportunity to be heard, the production and weighing of evidence,
and a decision rendered on the basis of such evidence. In this sense, the
investigating prosecutor is a quasi-judicial officer"
(See Sec. 1, Part III, Manual
for Prosecutors).
3. Under a different set of facts and issues, a pronouncement was
later made inBautista v. Court of Appeals, G.R. No. 143375, July 6, ,2001
where it was held that a preliminary investigation is "very different from other"
quasi-judicial proceedings. Accordingly, the prosecutor in a preliminary in
CHAPTER IV 147
PRELIMINARY INVESTIGATION

vestigation does not determine the guilt or innocence of the accused. He does
not exercise adjudication nor rule-making functions. Preliminary investigation is
merely inquisit
orial, and isoften the only means of
discovering the persons who
may be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be acting as a
quasi-court, for it is the courts, ultimately, that pass judgment on the accused,
not the fiscal.
Bautista further holds that the Office of the Prosecutor is not a
quasi-judicial body. Necessarily, its decisions approving the filing of a criminal
complaint are not appealable to the Court of Appeals under Rule 43 as are the
decisions of quasi-judicial bodies enumerated therein.
Bautista however, concedes that there are cases which held that a
prosecutor conducting a preliminary investigation performs a quasi-judicial
function and that the power to conduct preliminary investigation is
quasi-judicial in nature.
Bautistaclarified that this statement holds true only in
the sense thatr like quasi-judicial bodies, the prosecutor is an office in the
executive department exercising powers akin to those of a court. But here is
where the similarity ends. A closer scrutiny will show that preliminary

investigation is very different from other quasi-judicial proceedings.


4. A similar pronouncement was made a few years Santos
later, inv. Go,
G.R. No. 156081, October 19,2005. This case held that a public prosecutor
does not perform acts of a quasi-judicial body. The Court described a
quasi-judicial body as an organ of government other than a court and other
than a legislature which performs adjudicatory functions. Said body affects the
rights of private parties either through adjudication or rule-making. Its awards,
when performing adjudicatory functions, determine the rights of the parties
and their decisions have the same effect as judgments of a
148 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

court. Such is not the case, according to the Court, when a public prosecutor
conducts a preliminary investigation.
The main issue for resolutionSantos
in v. Gowas whether a petition for
review under Rule 43 is a proper mode of appeal from a resolution of the

Secretary of course
case. In the Justice of
directing the prosecutor
this determination, toCourt
the file anhad
information in awhether
to consider criminal
the conduct of preliminary investigation by the prosecutor is a quasi-judicial
function. Note that Rule 43 is the mode of appeal from the awards, judgments,
final orders or resolutions of the quasi-judicial agencies enumerated in said
Rule in the exercise of their quasi-judicial functions.
The Court observed that Rule 43 of the 1997 Rules of Civil Procedure
clearly shows that it governs appeals to the Court of Appeals from decisions
and final orders or resolutions of quasi-judicial agencies in the exercise of their
quasi-judicial functions. The Department of Justice is not among the agencies
enumerated in Section 1 of Rule 43. inclusio
Thus, unius est exclusio alterius.
Reiterating its ruling Bautista
in v. Court of Appeals, the Court
proceeded to declare that it cannot agree with petitioners' submission that a
preliminary investigation is a quasi-judicial proceeding, and that the DOJ is a
quasi-judicial agency exercising a quasi-judicial function when it reviews the
findings of a public prosecutor regarding the presence of probable cause. Since
the DOJ is not a quasi-judicial body and it is not one of those agencies whose
decisions, orders or resolutions are appealable to the Court of Appeals under
Rule 43, the resolution of the Secretary of Justice finding probable cause to
indict petitioners is, therefore, not appealable to the Court of Appeals via a
petition for review under Rule 43.
5. Also, a much later case affirmed previous rulings that a preliminary
investigation is not a quasi-judicial proceeding, and that the DOJ is not a
quasi-judicial agency exercising a quasi-judicial function when it reviews the
findings of a public prosecutor regarding the presence of probable cause
(Spouses Balanguan v. Court of Appeals, G.R. No. 174350, August 13,
2008).
149

One of the issues that was sought to be resolvedSpousesin Balanguan


was whether or not the DOJ is covered by the constitutional injunction
embodied in Sec. 14, Article VIII of the Constitution. This provision requires that
"No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based."
Also, drawing heavily from the earlier case of
Bautista v. Court of
Appeals, G.R. No. 143375, July 6, 2001, the more recent case Spousesof
Balanguanstressed that a preliminary investigation is not a trial of the case on
the merits and has no purpose except that of determining whether a crime has
been committed and whether there is probable cause to believe that the
accused is guilty thereof. While the fiscal makes that determination, he cannot
be said to be acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal. Though some cases, added the Court,
describe the prosecutor's power to conduct a preliminary investigation as
quasi-judicial in nature, this is true only to the extent that, like quasi-judicial
bodies, the prosecutor is an officer of the executive department exercising
powers akin to those of the court, and the similarity ends at this point. A
quasi-judicial body is an organ of government other than a court and other
than a legislature which affects the rights of private parties, and their decisions
have the same effect as judgments of a court. Such is not the case when a
public prosecutor conducts a preliminary investigation to determine probable

cause to
when thefile aninformatio
Secretary of nJustice
against
is areviewing
person charged with a criminal
the former's order oroffense, or The
resolution.
Court concluded that since the DOJ is not a quasi-judicial body, Sec. 14, Article
VIII of the Constitution finds no application.
6. An earlier pronouncement was more clear and direct.:
" x x x A preliminary investigation proper— whether or not there
is reasonable ground to believe that the accused is guilty of the offense
and therefore, whether or not he should be subjected to the expense,
rigors and
150 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

embarrassment of trial is the function of the prosecutor.


Preliminary investigation is an executive, not a judicial function. Such
investigat
ion is notpart of the trial
xxx" (Metropolitan Bank and Trust Company v. Tonda,
338 SCRA 254).

Right to a preliminary investigation; waivable


The right to a preliminary investigation may be waived for failure to
invoke the right prior to or at the time of the plea v. Gomez, 117 SCRA
(People
73; People v. Bulusan, 160 SCRA 492; Go v. Court of Appeals, 206 SCRA 138).

Preliminary investigation vs. preliminary examination (preliminary inquiry)


1. A preliminary investigation is conducted by the prosecutor to
ascertain whether the alleged offender should be held for trial, to be subjected
to the expense, rigors and embarrassment of trial or if the offender is to be
released. A preliminary inquiry or a preliminary examination is conducted by
the judge to determine probable cause for the issuance of a warrant of arrest.
This is a judicial function
(People v. Inting, 187 SCRA 788; AAA v. Carbonnel,
524 SCR 496).
2. Preliminary investigation is executive in nature. It is part of the
prosecutor's job. Preliminary examination is judicial in nature and is lodged
with the judge. Sound policy supports this distinction. Otherwise judges would
be unduly laden with the preliminary investigation and examination of criminal
complaints instead ofconcentrat
ing on hearing and deciding cases filed before
their courts(Ledesma v. Court of Appeals, 278 SCRA 656; Co v. Republic, 539
SCRA 147).

Probable cause in preliminary investigation


1. Probable cause has been defined as the existence of such facts and
circumstances as would lead a person of ordinary caution and prudence to
entertain an honest and strong suspicion that the person charged is guilty of
the crime subject of the investigation. Being based merely on
CHAPTER IV 151
PRELIMINARY INVESTIGATION

opinion and reasonable belief, it does not import absolute certainty. Probable
cause need not be based on clear and convincing evidence of guilt, as the
investigating officer acts upon reasonable belief. Probable cause implies
probability of guilt and requires more than bare suspicion but less than
evidence to justify a conviction
(Manebo v. Acosta, G.R. No. 169554, October
28, 2009). Probable cause, for purposes of filing a criminal information, has
been defined as such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that respondents are probably guilty
thereof. The determination of its existence lies within the discretion of the
prosecuting officers after conducting a preliminary investigation upon
complaint of an offended party. Probable cause is meant such set of facts and
circumstances which would lead a reasonably discrete and prudent man to
believe that the offense charged in the information, or any offense included
therein, has been committed by the person sought to be (Manebo arrested v.
Acosta, G.R. No. 169554, October 28, 2009; Roberto B. Kalalo v. Office of the
Ombudsman, G.R. No. 158189, April 23,2010).
2. Probable cause need not be based on evidence establishing
absolute certainty of guilt. While probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify conviction." A
finding of probable cause merely binds over the suspects to stand trial. It is not
a pronouncement of guilt(De Chavez v. Ombudsman, G.R. Nos. 168830-31,
February 6,2007; Spouses Balangauan v. Court of Appeals, G.R. No. 174350,
August 13,2008; Manebo v. Acosta, G.R. No. 169554, October 28, 2009).
3. Probable cause implies only probability of guilt and requires more
than bare suspicion but less than evidence which would justify a conviction. A
finding of probable cause needs only to rest on evidence showing that more
likely than not, a crime has been committed by the suspect. It does not call for
the application of rules and standards of proof that a judgment of conviction
requires after trial on the merits. The complainant need not present at this
stage proof beyond reasonable doubt. A preliminary investigation does not
require
152 CRIMINALPROCEDURE:
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UPDATED EDITION

a full and exhaustive presentation of the parties' evidence. It is enough that in


the absence of a clear showing of arbitrariness, credence is given to the finding
and determination of probable cause by the Secretary of Justice in a
preliminary investigation
(Ricaforte v. Jurado, G.R. No. 154438, September
5,2007).
4. "The term probable cause does not mean 'actual and positive cause'
nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry
into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or commission complained of constitutes the
offense charged.... In order that probable cause to file a criminal case may be
arrived at, or in order to engender the well-founded belief that a crime has
been committed, the elements of the crime charged should be present. This is
based on the principle that every crime is defined by its elements, without
which there should — be at the most— no criminal offense
(Sy Thiong Shiou
Probable cause does not also
v. Sy Chim, G.R. No. 174168, March 30, 2009).
mean that guilt must be established beyond reasonable doubt and definitely
not on evidence establishing absolute certainty of(Heirs
guilt of Jose Sy Bang
v. Sy, G.R. No. 114217, October 13,2009).
For instance, the test in a malicious prosecution case should be whether
sufficient facts exist which show that, in bringing the criminal action,

complainant acted with probable cause, defined as the existence of such facts
and circumstances as would excite the belief in a reasonable mind that the
person charged and prosecuted in a criminal case is probably guilty of the
crime or wrongdoing (Limanch-0 Hotel and Leasing Corporation, et al. v. City
ofOhgapo, et al., G.R. No. 185121, January 18,2010).

Kinds of determination of probable cause


1. The Court held that there are two kinds of determination of probable
cause:executiveand judicial.
"The executive determination of probable cause is one made during
preliminary investigation. It is a function that
CHAPTER IV 153
PRELIMINARY INVESTIGATION

properly pertains to the public prosecutor who is given a broad discretion to


determine whether probable cause exists and to charge those whom he
believes to have committed the crime as defined by law and thus should be
held for trial. Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in court. Whether or
i.e.,
not that function has been correctly discharged by the public prosecutor,
whether or not he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and may
not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one
made by the judge to ascertain whether a warrant of arrest should be issued
against the accused. 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.
Corollary to the principle that a judge cannot be compelled to issue a
warrant of arrest if he or she deems that there is no probable cause for doing
so, the judge in turn should not override the public prosecutor's determination
of probable cause to hold an accused for trial on the ground that the evidence
presented to substantiate the issuance of an arrest warrant was insufficient. It
must be stressed that in our criminal justice system, the public prosecutor
exercises a wide latitude of discretion in determining whether a criminal case
should be filed in court, and that courts must respect the exercise of such
discretion when the information filed against the person charged is valid on its
face, and that no manifest error or grave abuse of discretion can be imputed to
the public prosecutor.
Thus, absent a finding that an information is invalid on its face or that the
prosecutor committed manifest error or grave abuse of discretion, a judge's
determination of probable cause is limited only to the judicial kind or for the
purpose of deciding whether the arrest warrants should be issued against
154 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

the accused"
(People v. Castillo, G.R. No. 171188, June 19, 2009).
2. Probable cause to warrant an arrest which is made by the judge refers
to "facts and circumstances that would reasonably
lead a discreet and
prudent
man to believe that an offense has been committed by the person to be

arrested. Other jurisdictions utilize the term manreasonable


of caution
or the
termordinarily prudent and cautious man. The terms are legally synonymous
and their reference is not to a person with training in the law such as a
prosecutor or a judge but theaverage man on the street. It ought to be
emphasized that in determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of our technical rules of
evidence of which his knowledge nil.isRather, he relies on the calculus of
common sense of which all reasonable men have an abundance" (Webb v. De
Leon, 247 SCRA 652; Domalanta v. COMELEC, G.R. No. 125586, June 29,
2000).

Cases requiring a preliminary investigation; when not required (Bar 2004)


1. A preliminary investigation is required to be conducted before the
filing of a complaint or information for an offense where the law prescribes a
penalty of at least four (4) years, two (2) months and one (1) day without
regard to the fine
(Sec. 1, Rule 112, Rules of Court; Tabujara v. People, G.R.
No. 175162, October 29,2008). Sec. 1 of Rule 112 is clear:
" x x x Except as provided in Sec. 7 (now Sec. 6) 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."

2. Before the amendatory provisions of R.A. 7691 took effect,


preliminary investigations were conducted only for offenses cognizable by
Regional Trial Courts. Because the jurisdiction of Municipal Trial Courts has
been expanded by
CHAPTER IV 155
PRELIMINARY INVESTIGATION

R.A. 7691, certain offenses formerly within the jurisdiction of Regional Trial
Courts came under the jurisdiction of Municipal Trial Courts. Consequently,
some offenses which before were not covered by the required preliminary
investigation are now subject to preliminary investigation even if such offenses
are cognizable by the Municipal Trial Courts as long as the same are punishable
by at least four (4) years, two (2) months and one (1) day.
Procedure for cases not requiring a preliminary investigation
1. Where a preliminary investigation is not required because the penalty
prescribed by law for the offense involves an imprisonment of less than four (4)
years, two (2) months and one (1) day, there are two ways of initiating a
criminal action.
(a) First, by filing the complaint directly with the prosecutor; or
(b) Second, by filing the complaint or information with the
Municipal Trial Court;
(Sec. 8, Rule 112, Rules of Court; Tabujara v.
People, G.R. No. 175162, October 29,2008).

Direct filing with the prosecutor


1. If the complaint is filed with the prosecutor (also as in Manila and other
chartered cities), the procedure prescribed in Sec. 3(a) of Rule 112 shall be
observed. This means that the complaint shall comply with the following:

(a) The address of the respondent shall be indicated in the


complaint;
(b) To establish probable cause, the complaint shall be
accompanied by:
(i) the affidavit of the complainant; and
(ii) the affidavits of the complainant's witnesses.
(iii) other supporting documents;
156 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

(c) The appropriate number of copies of the above as there are


respondents, plus two (2) copies for the official file must be submitted;
and
(d) The affidavits shall be subscribed and sworn to before any

prosecutor
their absenceor government official
or unavailability, authorized
before to administer
a notary public, eachoaths, or in
of whom
must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
2. 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 Since only Sec. 3(a) of Rule
(Sec. 8, Rule 112, Rules of Court).
112 applies, the respondent need not be issued a subpoena or required to
submitcounter-aff idavits.

Direct filing with the Municipal Trial Court


1. If the complaint or information is filed directly with the Municipal
Trial Court because the complaint involves an offense punishable by
imprisonment of less than four (4) years, two (2) months and one (1) day, the
procedure outlined in Sec. 3(a) of Rule 112 and the requirements therein shall
be observed(Sec. 8[b], Rule 112, Rules of Court)
in the same way as when the
complaint is filed directly with the prosecutor.

2. If within ten (10) days from the filing of the complaint or


information, the judge finds no probable cause, he shall dismiss the same.
Before the dismissal, the judge shall personally evaluate the evidence or
personally examine in writing and under oath the complainant and his
witnesses in the form of searching questions and answers
(Sec. 8[b], Rule 112,
Rules of Court).The evaluation is to be done personally where the complaint
or information is directly filed with the MTC. The examination shall also be
done personally.
3. If the judge desires to further determine the existence of probable
cause, he may, require the submission of additional evidence within ten (10)
days from notice
(Sec. 8[b], Rule 112, Rules of Court).
CHAPTER IV 157
PRELIMINARY INVESTIGATION

If the judge still finds no probable cause, despite the additional evidence,
the judge shall dismiss the case within ten (10) days from the submission of
additional evidence or expiration of said period
(Sec. 8[b], Rule 112, Rules o
Court).
4. If the judge finds probable cause, he shall issue a warrant of arrest. If
the accused has already been arrested, the court shall instead issue a
commitment order. A warrant of arrest may not also be issued if the judge is
satisfied that there is no necessity for placing the accused under custody, in
which case, the court may issue summons instead of a warrant of arrest
(Sec.
8[b], Rule 112, Rules of Court).
The issuance of a warrant of arrest is not mandatory and is to be issued if
there is a necessity of placing the accused under immediate custody but a
judge gravely abuses his discretion if he issues a warrant based solely on the
statement of a witness who was not even personally examined in writing and
under oath and in the form of searching questions and answers (Tabujara v.
People, G.R. No. 175162, October 29, 2008).

When preliminary investigation is not required even if the offense is one


which normally requires a preliminary investigation
1 . I f a person is arrested lawfully without a warrant involving an offense
which requires a preliminary investigation, i.e., the penalty is at least four (4)
years, two (2) months and one (1) day, an information or complaint may be
(Formerly Sec. 7,
filed against him without need for a preliminary investigation
now Sec. 6, Rule 112, Rules of Court as amended by AM. No. 05-08-26-SC,
August 30, 2005). Inquest proceedings are proper only when the accused has
been lawfully arrested without a warrant
(Ladlad v. Velasco, 523 SCRA 218;
Sec. 6 Rule 112, Rules of Court).
Thus, if a person is arrested by a police officerin flagrante delicto
while
robbing the victim through violence or intimidation, the arrest is a lawful one
(Sec. 5[a] of Rule 113, Rules of Court) and a preliminary investigation is not
required even
158 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

if the penalty for robbery is more than four (4) years, two (2) months, and one
(1) day. Under Article 294(5) of the Revised Penal Code, the minimum penalty
for robbery is
prision correctionalin its maximum period which is six (6) years
under Article 27 of the same code. The offense is one which involves a penalty
higher than four (4) years, two (2) months, and one (1) day and the arrested
person would normally be entitled to a preliminary investigation. In this case
however, a preliminary investigation does not apply because he was validly
arrested.
2. If he has been arrested in a place where an inquest prosecutor is
available, an inquest will be conducted instead of a preliminary investigation. In
the absence or unavailability of an inquest prosecutor, the complaint may be
fileddirectlywith the proper court by the offended party or a peace officer on
the basis of the affidavit of the offended party or arresting officer or person
(Formerly Sec. 7, now Sec. 6, Rule 112, Rules of Court as amended by A.M.
No. 05-08-26-SC, August 30, 2005). Note: The direct filing under this rule
may be deemed an additional situation in which a direct filing in court may
be done.

Person arrested lawfully without a warrant may ask for a preliminary


investigation
1. Under Sec. 6 (formerly Sec. 7) of Rule 112, although an inquest is the
proceeding which shall normally apply
when a person is lawfully arrested

without a warrant
investigation , such person
in accordance maybefore
with Rule nevertheless,
112, ask or
the complaint forinformation
a preliminary
is filed 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. The preliminary
investigation must be terminated within fifteen (15) days from its inception
(Sec. 6, Rule 112, Rules of Court).
Thus, the fact that a person was lawfully arrested without a warrant does
not bar him from availing of a preliminary investigation. It is worth
remembering however, that before he is granted the preliminary investigation
asked for by him,
CHAPTER IV 159
PRELIMINARY INVESTIGATION

he must sign a waiver of the provisions of Article 125 of the Revised Penal Code
(Sec. 6, Rule 112, Rules of Court). This Revised Penal Code provision imposes a
penalty upon a public officer or an employee who, although having detained a
person for some legal ground, fails to deliver the person arrested to the proper
judicial authorities within the periods of twelve (12), eighteen (18) or thirty six
(36) hours as the case may be.
2. Be it noted that by virtue of R.A. 7438, any waiver by the person
arrested or detained or under custodial investigation shall be in writing, signed
by such person in the presence of his counsel, otherwise such waiver shall be
null and void(Sec. 2, RA. 7438).
3. Observe that the person lawfully arrested may ask for a
preliminary investigation before the filing of the information. This is not
however, to be taken to mean that the filing of the complaint or information
bars him from asking for a preliminary investigation. Under current rules, if an
information or complaint has already been filed, the person arrested who is
now an accused, may still ask for a preliminary investigation within five (5) days
from the time he learns of its filing, with the same right to adduce evidence in
his defense under Rule 112
(Sec. 6, Rule 112, Rules of Court).
It is evident that because the complaint or information has already been
filed, the court has now assumed jurisdiction over the case. Hence, the accused
should address the motion for the holding of a preliminary investigation to the
court. While lawyers traditionally call the motion a "motion for
re-investigation," the term seems to be a misnomer because it presupposes
that a prior investigation had been held. A "motion to conduct a preliminary
investigation" appears to be a more appropriate term, although the title is of
lesser significance when compared to the essence of the motion.

Bail for a person lawfully arrested during the preliminary investigation


1. The waiver by the person lawfully aires ted of the provisions of Article
125 of the Revised Penal Code does not
160 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

preclude him from applying for(Sec.


bail 6, Rule 112, Rules of Court).
Note that while a preliminary investigation is undertaken, the person
arrested is still under detention. To effect his release, he may apply for bail
notwithstanding the waiver of the provisions of Article 125 of the Revised Penal
Code(Sec. 6, Rule 112, Rules of Court)and even if no information has yet been
filed against him. His right to bail is supported not only by Sec. 6 of Rule 112 but
also by Sec. 17(c) of Rule 114 which declares:

"Any person in custody who is not yet charged in court may


apply for bail with any court in the province, city, or municipality
where he is held."

2. The bail must however, be applied for and issued by the court in the
province, city, or municipality where the person arrested is held.
In one case, the accused was arrested lawfully without a warrant for
carnapping and detained at Camp Crame in Quezon City. He asked for a
preliminary investigation and signed a waiver of the provisions of Article 125 of
the Revised Penal Code. However, the assisting judge of a Marikina Regional
Trial Court approved the bail bond for the accused who was being held in
Quezon City. The Supreme Court held that while a person lawfully arrested and
detained and not yet formally charged can apply for bail, the application must
be filed in the province, city or municipality where the person arrested is held.
In this case, the bail application should have been filed with a Quezon City court
which has the authority to grant bail and not a Marikina(Ruiz
courtv. Beldia,
Jr., 451 SCRA 402).

Questioning the absence of a preliminary investigation


1. An accused who wants to question the regularity or absence of a
preliminary investigation must do so before he enters his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial.
An
CHAPTER IV 161
PRELIMINARY INVESTIGATION

application for or admission of the accused to bail does not bar him from raising
such question(Sec. 26, Rule 114, Rules of Court).
Failure to invoke the right
before entering a plea will amount to a waiver
(People v. Gomez, 117 SCRA
73).

2. after
ago that The rule on waiver
a plea of not is not new.
guilty The Court
is made, has consistently
an accused is deemedheld
to long
have
forgone the right to raise the absence of a preliminary investigation or any
irregularity that surrounds it
(People v. Monteverde, 142 SCRA 668; Zacarias v.
Cruz, 30 SCRA 728, People v. Beltran, 32 SCRA 71; People v. Arbola, L-16936,
Aug 5, 1985; All cases cited in People v. Bulosan, 160 SCRA 492; People v.
Buluran, 325 SCRA 476).
3. A motion to quash is not the proper remedy because the absence
of a preliminary investigation is not one of the grounds for a motion to quash
under Sec. 3 of Rule 117.
It was thus, held that if there is no preliminary investigation and the
accused before entering his plea calls the attention of the court to his
deprivation of the required preliminary investigation, the court should not
dismiss the information. It should remand the case to the prosecutor so that
the investigation may be conducted
(Larranaga v. Court of Appeals, 287 SCRA
581).

For instance, in an early graft case, where the accused were deprived of a
full preliminary investigation preparatory to the filing of the informations
against them, the Court emphasized that such fact does not warrant the
quashal of the information, nor should it obliterate the proceedings already
had. Neither is the court's jurisdiction nor validity of an information adversely
affected by deficiencies in the preliminary investigation. Instead, the
Sandiganbayan is to hold in abeyance any further proceedings therein and to
remand the case to the Office of the Ombudsman for the completion of the
preliminary investigation, the outcome of which shall then be indorsed to the
Sandiganbayan for its appropriate action
(Vasquez v. Hobilia-Alinio, 271 SCRA
67).
162 CRIMINALPROCEDURE:
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Absence of preliminary investigation; effect on jurisdiction of the court


The absence of preliminary investigation does not affect the court's
jurisdiction over the case nor does it impair the validity of the information or
otherwise, render it defective (Rodis v. Sandiganbayan, 166 SCRA 618;
People v. Deang, 338 SCRA 657; Socrates v. Sandiganbayan, 253 SCRA 773;
People v. Buluran, 325 SCRA 476; Enriquez v. Sarmiento, Jr., 498 SCRA If 6).
absence of a preliminary investigation does not render the information invalid
nor affect the jurisdiction of the court over the case, then the denial of a
motion for reinvestigation cannot likewise invalidate the information or oust
the court of its jurisdiction over the(Budiongan,
case Jr. v. De la Cruz, Jr., 502
SCRA 626).
Absence of preliminary investigation; not a ground for motion to quash
The absence of a preliminary investigation is not a ground for a motion
to quash. Such ground is not provided for in Sec. 3 of Rule 117, the provision
which enumerates the grounds for a motion to quash a complaint or
information(Budiongan, Jr. vs. De la Cruz, Jr., 502 SCRA 626).
Inquest proceedings
1. An inquest proceeding is conducted when a person is lawfully arrested
without a warrant involving even also an offense which requires a preliminary
investigation(Sec. 6, Rule 112, Rules of Court; Crispin Beltran v. People and

Secretary Gonzalez, G.R. No. 175013, June 1, 2007). An inquest


preliminary investigation. It is a summary investigation and is not adoes not
which
follow the procedures set forth in Sec. 3 of Rule 112 of the Rules of Court.
An inquest is an investigation conducted by a prosecutor in criminal
cases where a person has been lawfully arrested and detained without a
warrant of arrest. It is informal and summary and its purpose is to determine
whether or not the person detained should remain under custody and then
charged in court
(Sec. 1, Part II, Manual for Prosecutors).
CHAPTER IV 163
PRELIMINARY INVESTIGATION

2. The inquest is conducted by a public prosecutor who is assigned


inquest duties as an Inquest Officer and is to discharge his duties, unless
otherwise directed, only at the police stations/headquarters of the PNP in
order to expedite and facilitate the disposition of inquest(Sec.
cases
2, Part II,
Manual for Prosecutors).
3. The inquest proceedings shall be deemed commenced from the
time the Inquest Officer receives the complaint and referral documents from
the law enforcement authorities. These documents include the (a) affidavit of
arrest, (b) the investigation report, (c) the statements of the complainant and
the witnesses; and (d) other supporting evidence gathered. The affidavit of
arrest and the statements or affidavits of the complainant and the witnesses
shall be subscribed and sworn to before the Inquest Officer by the affiants
(Sec.
3, Part II, Manual for Prosecutors).
4. The detained person should be present during the inquest
proceedings unless reasons exist that would dispense with 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 factors
(Sec. 6,
Part II, Manual for Prosecutors).
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(Sec. 11, Part II, Manual for Prosecutors).

Possible options of the inquest prosecutor


1. The Inquest Officer has an initial duty. This duty is 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. For this purpose, the Inquest Officer
may summarily examine the arresting officers on the circumstances
surrounding the arrest or apprehension of the detained(Sec.
person
8, Part II,
Manual for Prosecutors).
2. Should it be found that the arrest was not made in accordance
with the Rules of Court, the Inquest Prosecutor
164 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

shall not proceed with the inquest proceedings. Instead, he shall recommend
the release of the detainee, 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 the Gity
of the Provincial Prosecutor for appropriate action
(Sec. 9, Part II, Manual for
Prosecutors).
When the recommendation is approved, the order of release shall be
served on the officer having custody of said detainee so the latter may be
released. The officer shall also serve upoi^the detainee a notice of preliminary
investigation if the evidence on hand warrants the conduct of a regular
preliminary investigation. In such an event, the detainee shallreleased
be also
for further investigation. The detainee shall be furnished copies of the charge
sheet or complaint, affidavits or sworn statements of the complainant and his
witnesses and other supporting evidence (Sec. 9, Part II, Manual for
Prosecutors).
3. Should it be found that the arrest was properly effected, the inquest
shall proceed but the Inquest Officer shall first ask the detained person if he
desires to avail himself ofpreliminar
a y investigation and if he
does, he shall be
made to execute a waiver of the provisions of Article 125 of the Revised Penal
Code with the assistance of a lawyer. The preliminary investigation may be
conducted by the Inquest Officer himself or by any other Assistant Prosecutor
to whom the case may be assigned (Sec.10, Part II, Manual for Prosecutors).

If the Inquest Prosecutor finds that probable cause exists, he shall


prepare the corresponding information with the recommendation that the
same be filed in court If no probable
(Sec. 13, Part II, Manual for Prosecutors).
cause is found, he shall recommend the release of the detained person
(Sec.
15, Part II, Manual for Prosecutors).

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. This basic rule is exemplified by the Beltran
case of v. People
(G.R. No. 175013, June 1,2007).
CHAPTER IV 165
PRELIMINARY INVESTIGATION

The case involved petitioners in the consolidated petitions who were


incumbent congressmen and representatives of party-list groups while the
others were private individuals. The petitions sought the issuance of writs of
prohibition andcertiorari to enjoin the prosecution of the petitioners for
rebellion and to set aside the rulings of the Department of Justice (DOJ) and the
Regional Trial Court of Makati City (RTC Makati) on the investigation and
prosecution of petitioners' cases.
One of the petitioners was Crispin Beltran who was arrested without a
warrant following the issuance by President Gloria Macapagal-Arroyo of
Presidential Proclamation No. 1017 on 24 February 2006 declaring a "State of
National Emergency." When he was arrested, Beltran was not informed of the
crime for which he was arrested. On the evening of his arrest, Beltran was
subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition
under Article 142 of the Revised Penal Code based on a speech Beltran
allegedly gave during a rally in Quezon City on 24 February 2006, on the
occasion of the 20th anniversary of the EDSA Revolution. The inquest was
based on the joint affidavit of Beltran's arresting officers who claimed to have
been present at the rally. The joint affidavit of Beltran's arresting officers stated
that the officers arrested Beltran, without a warrant, for Inciting to Sedition.
The inquest prosecutor indicted Beltran and filed the corresponding
Information with the Metropolitan Trial Court of Quezon City (MeTC).
Several days after the first inquest, he was again subjected to a second
inquest but this time for rebellion allegedly committed with a certain 1st Lt.
Lawrence San Juan (SanJuan). The inquest was allegedly based on the letters of
CIDG investigators claiming that Beltran and San Juan were allegedly the
leaders and promoters of an alleged foiled plot to overthrow the Arroyo
government. The plot was supposed to be carried out jointly by members of
the Communist Party of tl\e Philippines (CPP) and the Makabayang Kawal ng
Pilipiflas (MKP), which have formed a "tactical alliance."
166 CRIMINALPROCEDURE:
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UPDATED EDITION

The panel of prosecutors from the DOJ which conducted the second
inquest subsequently issued a resolution finding probable cause to indict
Beltran and San Juan as "leaders/ promoters" of the alleged rebellion. The
panel then filed an Information with the RTC Makati.
Beltran moved that the RTC make ajudicial determination of probable
cause against him but the court sustained the finding of probable cause against
Beltran. Beltran sought reconsideration but the Judge like the first judge of the
court in which the case was srcinally filed, also inhibited herself from the case
without resolving Beltran's motion. The new Judge of the court to which the
case was re-raffled denied the motion for reconsideration of Beltran. Hence,
the petition to set aside the orders finding probable cause and the denial of the
motion for reconsideration and to enjoin the prosecution of Beltran. The
petition likewise raised the validity of the inquest proceedings against Beltran.
The Supreme Court held that the inquest proceedings against Beltran for
rebellion is void. Inquest proceedings, declared the Court are proper only when
the accused has been lawfully arrested without a warrant. This is clear from
Sec. 6 of Rule 112 of the Rules of Court.
The joint affidavit of Beltran's arresting officers states that the officers
arrested Beltran, without a warrant, for Inciting to Sedition, and not for
— as he did
Rebellion. Thus, the inquest prosecutor could only have conducted
conduct— an inquest for Inciting to Sedition and no other. Consequently,
when another group of prosecutors subjected Beltran to a second inquest
proceeding for Rebellion, they overstepped their authority rendering the
second inquest void. None of Beltran's arresting officers saw Beltran commit, in
their presence, the crime of Rebellion. Nor did they have personal knowledge
of facts and circumstances that Beltran had just committed Rebellion, sufficient
to form probable cause to believe that he had committed Rebellion. What
these arresting officers alleged in their affidavit is that they saw and^heard
Beltran make an allegedly seditious speech on a certaifi date
CHAPTER IV 167
PRELIMINARY INVESTIGATION

but the affidavits did not make reference to acts constituting rebellion.
The Court pointed out that under DOJ Circular No. 61, dated 21
September 1993, the initial duty of the inquest officer is to determine if the
arrest of the detained person was conducted in accordance with the provisions

of paragraphs
effected, (a) andofficer
the inquest (b) ofshould
Sec. 5,proceed
Rule 113. If the
under arrest9 was
Section not properly
of Circular No. 61
which provides:

— Should the Inquest Officer find


*Where Arrest Not Properly Effected.
that the arrest was not made in accordance with the Rules, he shall:
a) recommend the release of the person arrested or detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons for the action
taken; and
d) forward the same, together with the record of the case, to the City
or Provincial Prosecutor for appropriate action.
"Where the recommendation for the release of the detained person is
approved by the City or Provincial Prosecutor but the evidence on hand warrant
the conduct of a regular preliminary investigation, the order of release shall be
served on the officer having custody of said detainee and shall direct the said
officer to serve upon the detainee the subpoena or notice of preliminary investiga-
tion, together with the copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other supporting evidence."

For the failure of Beltran's panel of inquest prosecutors to comply with


Sec. 6, Rule 112 in relation to Sec. 5, Rule 113 and DOJ Circular No. 61, Beltran's
inquest was declared void(Crispin. Beltran v. People and Secretary Gonzalez,
G.R. No. 175013; June 1, 2007).
168 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

Who may conduct preliminary investigation and determine existence of


probable cause
1. The following are authorized to conduct a preliminary
investigation:

(a) Provincial or City Prosecutors and their assistants;


(b) National and Regional State Prosecutors; and
(c) Other officers as maybe authorized by law.
The authority of the above to conduct preliminary investigations shall
include all crimes cognizable by the proper court in their respective territorial
jurisdiction (A.M. 05-06-26, SC, August 30,2005, effective October 3,2005).
Before the amendments, judges of the Municipal Trial Courts and
Municipal Circuit Trial Courts were allowed to conduct preliminary
investigations(Mago v. Pefialosa-Fermo, 582 SCRA 1).
Judges of first level
courts are no longer allowed to conduct preliminary
investigations (Sibulo v.
Toledo- Mupas, A.M. No. MTJ-07-1686, June 12,2008).
2. The following are also authorized to conduct a preliminary
investigation:
(a) Under the amendments to the Omnibus Election Code, the
, through its duly authorized legal officers, has
Commission on Elections

the power, to
government, concurrent with the investigation
conduct preliminary other prosecuting arms of
of all election the
offenses
punishable under the Omnibus Election Code and to prosecute the same
(Sec. 265, B.P. 881, Omnibus Election Code, as amended by RA. 9369,
Sec. 43).
It has been held in a relatively recent case that "A public
prosecutor exceeded the authority delegated to him by the Commission
on Elections (COMELEC) to prosecute election-related cases when he
filed amended informations in court against the respondent even after
he had been directed by the Legal Department fcf the COMELEC to
suspend the implementation of hi& joint
CHAPTER IV 169
PRELIMINARY INVESTIGATION

resolution (which found that the respondent should be indicted) but


before his delegated authority had been revoked by the COMELEC
en
bane.
"The Constitution, particularly
Sec. 20, Article IX,empowers the
COMELEC to investigate and, when appropriate, prosecute election
cases. Furthermore, under Section 265 of the OEC, the COMELEC,
through its duly authorized legal officers, has the exclusive power to con-
duct the preliminary investigation of all election offenses punishable
under the OEC and to prosecute the same. Under Section 265 of the
OEC, the COMELEC may avail itself of the assistance of other prosecuting
arms of the government. Thus, Section 2, Rule 34 of the COMELEC Rules
of Procedure provides for the continuing delegation of authority to other
prosecuting arms of the government, which authority, however, may be
revoked or withdrawn at anytime by the COMELEC in the proper exercise
of its judgment. Sec. 10 of the same Rule 34 gives the COMELEC the
power tomotu propriorevise, modify and reverse the resolution of the
Chief State Prosecutor and/or provincial/city prosecutors.
"Clearly, the Chief State Prosecutor, all Provincial and City Fiscals,
and/or their respective assistants have been given continuing authority,
as deputies of the Commission, to conduct a preliminary investigation of
complaints involving election offenses under the election laws and to
prosecute the same. However, such authority may be revoked or
withdrawn anytime by the COMELEC either expressly or impliedly, when
in its judgment, such revocation or withdrawal is necessary to protect the
integrity of the process to promote the common good or where it
believes that the successful prosecution of the case can be done by the
COMELEC. Moreover, being mere deputies or agents of the COMELEC,
provincial or city prosecutors deputized by it are expected to act in accord
with and not contrary to or in derogation ftf the resolutions, directives or
orders of the COMELEC in relation to election cases where it had been
deputized
170 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

to investigate and prosecute by the COMELEC. As mere deputies,


provincial and city prosecutors acting on behalf of the COMELEC must
proceed within the lawful scope of their delegated authority
(Bievenido
Difvo and Renato Comparativo v. Pablo Olivarez, G.R. No. 170447,
December 4,2009).
Note: This case had been filed in 2004 before the amendment
introduced by R.A. 9369 in January 23, 2007 and should now be
interpreted in accordance with the amendment. Under Sec. 43 thereof,
the power of the COMELEC to investigate and prosecute election offens-
es is now concurrent with the other prosecuting arms of the
government. The other prosecuting arms of the government, it is
humbly submitted no longer need to be deputized by the COMELEC. The
srcinal provision of Art. 265 of the Omnibus Election Code provided that
the COMELEC, through its legal officers, "have the exclusive power to
conduct preliminary investigation of all election offenses...The
Commission may avail of the assistance of other prosecuting arms of the
government..." The difference between the srcinal Art. 265 and its
amended version warrants a modification of existing case law on the
matter.
(b) TheOffice 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. It
has primary jurisdiction over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction, it may take over, at any
stage, from any investigatory agency of the government, the
investiga
tion ofsuch cases(Sec. 15[1], R.A. 6770).
In appropriate cases, the Office of the Ombudsman has full
authority to issue subpoenas, including , for
subpoena duces tecum
compulsory attendance of witnesses and the production of documents
and informatiori relat
CHAPTER IV 171
PRELIMINARY INVESTIGATION

ing to matters under its investigation. The grant of this authority, however, is
not unlimited, as the Ombudsman must necessarily observe and abide by the
terms of the Constitution and our laws, the Rules of Court and the applicable
jurisprudence on the issuance, service, validity and efficacy of subpoenas.
Under the Rules of Court, the issuance of subpoenas, including a
subpoena
duces tecum, operates under the requirements of reasonableness and
relevance. For the production of documents to be reasonable and for the
documents themselves to be relevant, the matter under inquiry should, in the
first place, be one that the Ombudsman can legitimately entertain, investigate
and rule upon(Re: Subpoena Duces Tecum dated January 11,2010 of Acting
Director Aleu A. Amante, PIAB-C Office of the Ombudsman, AM. No. 10-
1-13-SC, March 2,2010).
(c) ThePresidential Commission on Good Governmentwith the
assistance of the Office of the Solicitor General and other government
agencies is empowered to investigate, file and prosecute cases
investigated by(Executive
it Order No. 14, May 7,1986).

The procedure for preliminary investigation must be strictly followed


One case isillustrati
ve.
A preliminary investigation of the rebellion charges against Ladlad and
Maza was held before a panel of DOJ prosecutors on the basis of the
unsubscribed letters of CIDG investigators alleging that the petitioners have
committed acts constituting rebellion. During the preliminary investigation, the
counsel for the CIDG presented a masked man, who claimed to be an
eyewitness against petitioners in a complaint for rebellion. The man subscribed
to his affidavit before one of the respondent prosecutors who then gave copies
of the affidavit to media members present during the proceedings. The-panel
of prosecutors gave petitioners 10 days within which to file their
counter-affidavits but the petitioners were
172 CRIMINALPROCEDURE:
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UPDATED EDITION

furnished the complete copies of documents supporting the CIDG's letters


much later.
Petitioners moved for the inhibition of the members of the prosecution
panel for lack of impartiality and independence, considering the political milieu
under which petitioners were investigated, the statements that the President
and the Secretary of Justice made to the media regarding petitioners' case, and
the manner in which the prosecution panel conducted the preliminary
investigation. The DOJ panel of prosecutors denied petitioners' motion as well
as thesubsequent motion for reconsiderati
on.
Petitioners sought the nullification of the orders of the DOJ panel and for
the issuance of an injunctive writ. Acting on petitioners' prayer for the issuance
of an injunctive writ, the Court issued a quo
status
order. Prior to this, however,
the panel of prosecutors, issued a resolution finding probable cause to charge
petitioners and 46 others with rebellion. The prosecutors filed the
corresponding Information with RTC Makati, Consequently, the petitioners
Ladlad and Maza filed a supplemental petition to enjoin the prosecution of the
criminal case because of irregularities in the preliminary investigation.
In deciding the petition, the Court started by outlining the procedure for
the preliminary investigation of offenses punishable by at least four years, two
months and one day as embodied in Sec. 3, Rule 112 of the Revised Rules of
Criminal Procedure.
The Court found that instead of following this procedure scrupulously, so
that the constitutional right to liberty of a potential accused can be protected
from any material damage, respondent prosecutors nonchalantly disregarded
it. Respondent prosecutors failed to comply with Sec. 3(a) of Rule 112 which
provides that the complaint (which, with its attachment, must be of such
number as there are respondents) be accompanied by the affidavits of the
complainant and his witnesses, subscribed and sworn to before any prosecutor
or government official authorized to administer oath, or, in their
CHAPTER IV 173
PRELIMINARY INVESTIGATION

absence or unavailability, before a notary public. 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 of them were
notarized by a notary public without any showing that a prosecutor or qualified
government official was unavailable as required by Sec. 3(a) of Rule 112.

Further, Sec. 3(b) of Rule 112 mandates that the prosecutor, after
receiving the complaint, must determine if there are grounds to continue with
the investigation. If there is none, he shall dismiss the case, otherwise he shall
"issue a subpoena to the respondents." Here, after receiving the CIDG letters,
respondent prosecutors peremptorily issued subpoenas to petitioners
requiring them to appear at the DOJ office on a certain date "to secure copies
of the complaints and its attachments." During the investigation, respondent
prosecutors allowed the CIDG to present a masked man who subscribed to an
affidavit before the respondent prosecutors. Copies of the affidavit of the man
were distributed, not to petitioners or their counsels, but to members of the
media who covered the proceedings. Respondent panel of prosecutors then
required petitioners to submit their counter-affidavits in 10 days. It was only
four days later, that petitioners received the complete copy of the attachments
to the CIDG letters.
"These uncontroverted facts belie respondent prosecutors' statement
that the preliminary investigation "was done in accordance with the Revised
Rules o[f] Criminal Procedure." Indeed, by peremptorily issuing the subpoenas
to petitioners, tolerating the complainant's antics during the investigation, and
distributing copies of a witness' affidavit to members of the media knowing
that petitioners have not had the opportunity to examine the charges against
them, respondent prosecutors not only trivialized the investigation but also
lent credence to petitioners' claim that the entire proceeding was a sham."
The Court stressed:
A preliminary investigation is the crucial sieve in
the criminal justice system which spells for an individual
' rr
174 CRIMINALPROCEDURE:
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UPDATED EDITION

the difference between months if not years of agonizing trial and possibly jail
term, on the one hand, and peace of mind and liberty, on the other hand. Thus,
we have characterized the right to a preliminary investigation as not "a mere
formal or technical right" but a "substantive" one, forming part of due process in
criminal justice. This especially holds true here where the offense charged is pun-
ishable by and may be non-bailable for those accused as
reclusion perpetua
principals
(Ladlad v. Velasco, G.R. Nos. 172070-72, June 1, 2007; Maza v.
Gonzalez, G.R. Nos. 172074-76, June 1,2007).

Initial steps in preliminary investigation; filing of the complaint for


preliminary investigation
1. It is the filing of the complaint with the investigating prosecutor
that starts the preliminary investigation process. In actual application, the
complaint is normally initiated through an affidavit of complaint.
This complaint is required to state the address of the respondent and
shall be accompanied by (a) the affidavits of the complainant, (b) the affidavits
of his witnesses and, (c) other supporting documents. These affidavits and
supporting documents are required in order to establish probable cause. The
number of copies to be filed shall be in such number as there are respondents
plus two (2) copies for the official file3[a], Rule 112, Rules of Court).
(Sec.
Notethatthecomplaintfiledforthepurposeofpreliminary investigation
differs from the complaint filed for the purpose of instituting a criminal

prosecution. The latter refers to the complaint defined in Sec. 3 of Rule 110
and which is in the name of the People of the Philippines. It has also been held
that the complaint referred to in a preliminary investigation is not just the
affidavit of the complainant because his affidavit is treated as a component of
the complaint (See Santos-Concio v. Department of Justice, 543 SCRA 70).
2. The rule establishes a hierarchy with respect to the persons before
whom the affidavits may be subscribed and sworn to.
CHAPTER IV 175
PRELIMINARY INVESTIGATION

The affidavits that shall accompany the complaint shall be subscribed


and sworn to before any prosecutor and not necessarily before the
investigating prosecutor. It may also be subscribed before any government
official authorized to administer oaths. In their absence or in case they are
unavailable, the affidavits may be subscribed and sworn to before a notary
public(Sec. 3[a], Rule 112, Rules of Court).
3. The prosecutor, official or notary public before whom the affidavits
were subscribed and sworn to does not perform a mere perfunctory or
mechanical duty. He is obligated to conduct a personal examination of the
affiants and corollarily, to certify that he personally examined the affiants and
that he is satisfied that they voluntarily executed and understood their
affidavits.(Sec. 3[a], Rule 112, Rules of Court).

Dismissal of the complaint or issuance of a subpoena


1. From the filing of the complaint, the investigating officer has ten
(10) days within which to decide which of the following options to take:
(a) To dismiss the complaint if he finds no ground to conduct
the investigation; or
(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
(Sec. 3[b], Rule 112, Rules of Court).
2. The respondent to whom the subpoena was issued 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 to a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party
(Sec. 3[b], Rule 112, Rules of Court).
176 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

Filing of counter-affidavit by the respondent; no motion to dismiss


1. The respondent who receives the subpoena, the complaint,
affidavits and other supporting documents, is not allowed to file a motion to
dismiss in lieu of a counter-affidavit. Instead, within ten (10) days from receipt
of the subpoena, he isrequired to submit his counter-affidavit
, the affidavits of
his witnesses and the supporting documents relied upon for his defense
(Sec. 3
[c], Rule 112, Rules of Court).
2. The counter-affidavits shall be subscribed and sworn to before any
prosecutor or before any government official authorized to administer oaths.
In their absence or in case they are unavailable, the affidavits may be
subscribed and sworn to before a notary public. The officer or notary public
before whom the affidavits were subscribed and sworn to must certify that he
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits
(Sec. 3[c], Rule 112, in relation to
Sec. 3[a], Rule 112, Rules of Court).
Note: While the rule does not specifically mention other affidavits, it is a
common practice to allow the filing of a reply to the counter-affidavit usually
denominated as a reply-affidavit. The respondent may likewise rebut the
reply-affid
avitthrough arejoinder-affid
avit.

Action to be taken if the respondent does not submit his counter-affidavit


If despite the subpoena, the respondent does not submit his

counter-affidavit
officer within
shall resolve the ten-day
the complaint period
based on granted him, presented
the evidence the investigating
by the
complainant. The same rule shall apply in case the respondent cannot be
subpoenaed(Sec. 3[d], Rule 112, Rules of Court).
This situation would have
the effect of an ex
parteinvestigation because the respondent cannot or does
not participate in the proceedings.
Note: Since the Rules of Court are to be liberally construed, the
respondent should be allowed, through a proper motion, to have the
proceedings reopened to allow him to submit his
CHAPTER IV 177
PRELIMINARY INVESTIGATION

counter-affidavit and the affidavits of his witnesses and other evidence he may
present. The motion however, should be done before the prosecutor has
issued a resolution in the case. Further, such motion should contain an
explanation for the failure to timely file the counter-affidavit

Clarificatory hearing if necessary; no right of cross-exami- nation


1. Within ten (10) days from the submission of the counter-affidavit,
other affidavits and documents filed by the respondent, or within ten (10) days
from the expiration of the period for their submission, a hearing may be set by
the investigating office
r, if there arefacts and issues to
be clarified either from a
party or a witness. The parties can be present at the hearing but do not have
the right to examine or cross- examine each other or the witnesses. If they have
questions to ask, they shall submit the questions to the investigating officer
who shall ask thequestions to the party or witness concerned. The hearing shall
be terminated within five (5) days
(Sec. 3 [e], Rule 112, Rules of Court).
2. A clarificatory hearing is not indispensable during preliminary
investigation. Under Sec. 3(e) of Rule 112, it is within the discretion of the
investigation officer whether to set the case for further hearings to clarify some
matters(De Ocampo v. Secretary of Justice, 480 SCRA 71; Racho v. Miro, 567
SCRA 213; Sierra v. Lopez, Administrative Case No. 7549, August 29,2008).

Determination by the investigating officer

Within ten (10) days from the termination of the investigation, the
investigating prosecutor shall determine whether or not there is sufficient
ground to hold the respondent for(Sec.
trial3 [fl, Rule 112, Rules of Court).

Discretion of prosecutor in filing of a criminal complaint or information (Bar


1999)
1. The determination of probable cause during a pre- liminary
investigation or reinvestigation is recognized as an
178 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

executive function exclusively of the prosecutor. An investigating prosecutor is


under no obligation to file a criminal action where he is not convinced that he
has the quantum of evidence at hand to support the averments. Prosecuting
officers have equally the duty not to prosecute when after investigation or
reinvestigation they are convinced that the evidence adduced was not
sufficient to establishprima
a facie case. Thus, the determination of the
persons to be prosecuted rests primarily with the prosecutor who is vested
with discretion in the discharge of this function (Dupasquier v. Court of
Appeals, G.R. No. 112089, January 24,2001 citing Ledesma v. Court of
Appeals, 344 Phil. 207, People v. Navarro 337 Phil. 122, Pono v. NLRC, 341
Phil. 615).Since discretion is involved in the determination of probable cause,
mandamusas described in Rule 65, will not, as a rule, lie to compel the filing of
a complaint or information.
2. A prosecutor is under no compulsion to file a particular criminal
information where he is convinced that there is not enough evidence to
support its averments, or that the evidence at hand, to his mind, necessarily
leads to a different conclusion
(Ilusorio v. Ilusorio, 540 SCRA 182).

Resolution of investigating prosecutor; certification of preliminary


investigation
1. If the investigating prosecutor finds cause to hold the respondent
for trial, he shall prepare both the resolution and information. If he does not
(Sec.
find probable cause, he shall recommend the dismissal of the complaint
4, Rule 112, Rules of Court).
2. The information shall contain a certification by the investigating
officer under oath in which he shall certify to the following: (a) that he, or as
shown by the record, an authorized officer, has personally examined the
complainant and his witnesses, (b) that there is a reasonable ground to believe
that a crime has been committed, (c) that the accused is probably guilty
thereof, (d) that the accused was informed of the complaint and of the
evidence submitted against him, and
CHAPTER IV 179
PRELIMINARY INVESTIGATION

(e) that he was given an opportunity to submit controverting (Sec.


evidence
4,
Rule 112, Rules of Court).
Effect of the absence of the required certification (Bar 1998)
Definitely settled is the rule that notwithstanding the absence in the
information of a certification as to the holding of a preliminary investigation,
the information is nonetheless considered valid for the reason that such
certification is not an essential part of the information itself and its absence
cannot vitiate it as such
(People v. Marquez 27 SCRA 808; Estrella v. Ruiz, 58
SCRA 779; People v. Arbois, 138 SCRA 24; all cases cited in Alvizo v.
Sandiganbayan, 220 SCRA 55).What is not allowed is the filing of the
information without a preliminary investigation having been previously
conducted(People v. Lapura, 255 SCRA 85).
Forwarding of the records of the case for action; need for approval before
filing or dismissal
1. 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
Sandiganbayanin the exercise of its srcinal jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action
(Sec. 4, Rule 112, Rules of Court).
2. The reason for the immediately preceding paragraph is the rule

that no complaint
prosecutor withoutorthe
information mayauthority
prior written be filed or
or dismissed by the
approval of an investigating
provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy
(Sec.
4, Rule 112, Rules of Court).Thus, the resolution of the investigating
prosecutor may be reversed or affirmed by the provincial or city prosecutor or
chief state prosecutor, or the Ombudsman.
Rule when recommendation for dismissal is disapproved
Where the investigating prosecutor, recommends the dismissal of the
complaint but his recommendation is disap
180 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

proved 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
another assistant prosecutor or state prosecutor to do so without conducting
another preliminary investigation
(Sec. 4, Rule 112, Rules of Court).

Motion for reconsideration


The aggrieved party under current practice is not precluded from filing a
motion for reconsideration within 15 days from receipt of the assailed
resolution. If the motion is denied, the aggrieved party may appeal within
fifteen (15) days from the denial of the motion for reconsideration
(Sec. 3,
2000 NPS Rule on Appeal, DO J Department Circular No. 70).
Appeals to the Secretary of Justice; filing a petition for review
1. In cases subject of preliminary investigation or reinvestigation, an
appeal may be brought to the Secretary of Justice from the resolutions of the
Chief State Prosecutor, Regional State Prosecutors and Provincial/City
Prosecutor(Sec. 1, Department Circular No. 70, NPS Rule On Appeal, Depart-
ment of Justice, July 3,2000). The Secretary of Justice has the ultimate
authority to decide which of the conflicting theories of the complainants and
the respondents should be believed (Community Rural Bank of Guimba
[N.E.], Inc. v. Talavera, 455 SCRA 34).

2. The
the assailed appeal shall
resolution. If abe taken for
motion within fifteen
recon- (15) days from receipt of
sideration/reinvestigation has
been filed within fifteen (15) days from receipt of the assailed resolution, the
appeal shall be taken within fifteen (15) days from receipt of the denial of the
motion for reconsideration/reinvestigation
(Sec. 3, Department Circular No.
70). Note: Under the same provision, only one motion for reconsideration is
allowed.
3. The appeal is made by filing a petition for review with the Office of
the Secretary, Department of Justice. This
CHAPTER IV 181
PRELIMINARY INVESTIGATION

petition must be verified and copies of the same must be furnished the adverse
party and the Prosecution Office issuing the appealed resolution
(Sec. 4,
Department Circular No. 70).The petition must contain the matters
mandated under Sec. 5 of Department Circular No. 70 and failure to comply
with the same shall constitute sufficient ground for the dismissal of the petition
(Sec. 6, Department Circular No. 70).
Within a non-extendible period of fifteen (15) days from receipt of the
copy of the petition, the adverse party may file a verified comment. The
investigating/reviewing/approving prosecutor need not submit any comment
except when directed by the Secretary of Justice
(Sec. 8, Department Circular
No. 70).
If no comment is filed within the prescribed period, the appeal shall be
resolved on the basis of the petition
(Sec. 8, Department Circular No. 70).
Note: The appeal does not
hold or prevent the filing the
of corresponding
information in court based on the finding of probable cause in the appealed
resolution, unless the Secretary of Justice directs otherwise, but the appellant
and prosecutor shall see to it that, pending resolution of the appeal, the
proceedings in court are held in abeyance
(Sec. 9, Department Circular No.
70).
Note also that the party filing a petition for review is allowed to file a
motion for the suspension of the arraignment. Under Sec. 11(c) of Rule 116,
upon motion by the proper party, the arraignmentshall be suspended, among
others, if a petition for review of the resolution of the prosecutor is pending.
4. If the Secretary of Justice finds the same to be patently without merit
or manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration, hedismiss
may the petition outright
(Sec. 7, Department Circular No. 70).
If pursuant to the appealed resolution, an information has already been
filed and the accused has already been arraigned prior to the filing of the
petition, the petition
shall
182 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

7, Department Circular No. 70).


not be given due course (Sec. If
the accused has been arraigned after the filing of the petition,
any arraignment shall not bar the Secretary of Justice from
exercising his power of review
(Sec.7, Department Circular
No. 70).

5. The Secretary of Justice may reverse, affirm or mod-


ify the appealed resolution. He may also dismiss the petition
for reviewmotu proprioor upon motion on any of the
following
grounds:
(a) That the petition for review was filed beyond
the period prescribed;
(b) That the prescribed procedure and require-
ments provided in Department Circular No. 70 were not
complied with;
(c) That there is no showing of any reversible error
or that the accused was already arraigned when the ap-
peal was taken;
(d) That the appealed resolution is interlocutory in
nature, except when it suspends the proceedings based
on the alleged existence of a prejudicial question;
(e) That the offense has already prescribed; and
(f) That there are other legal and factual grounds
that exist to warrant a dismissal (Sec. 12, Department
Circular No. 70). The Secretary however, has another op-
tion. He may order the reinvestigation of the case. If the
Secretary of Justice finds it necessary to investigate the
case, the reinvestigation shall be made by the investigat-
ing prosecutor, unless for compelling reasons, another
prosecutor is designated to conduct the (Sec.
same11,
Department Circular No. 70).
6. The party aggrieved by the decision of the Secretary
of Justice may file a motion for reconsideration within a
non-extendible period of ten (10) days from receipt of the
resolution on appeal. Copies of such motionproof
and of
service thereof shall be served upon the adverse party, and
CHAPTER IV 183
PRELIMINARY INVESTIGATION

the Prosecution Office concerned. No further or second motion for


reconsideration shall be entertained
(Sec. 13, Department Circular No. 70).

Rules of Court provisions when resolution is reversed or modified by the


Secretary of Justice
The action of the provincial or city prosecutor of chief state prosecutor is
not the final say on the case. If upon petition by a proper partymotuor
proprio, the Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor of 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
(Sec. 4,
Rule 112, Rules of Court).

Power of the Secretary of Justice to reverse resolutions of prosecutors


1. It has been held that the Secretary of Justice, upon petition by a proper
party, can reverse his subordinates' resolutions finding probable cause against
suspects of crimes. He has the power to alter, modify, nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter. While it is the duty of the
fiscal to prosecute persons who, according to evidence received from the
complainant, are shown to be guilty of a crime, the Secretary of Justice is

likewise bound
groundless, false by his oathprosecutions.
or serious of office toHeprotect
would innocent persons
be committing from
a serious
derelicti
on of dutyif he orders orsanctions the filing of charge sheets based on
complaints where he is not convinced that the evidence would warrant the
filing of an action in court. He has the ultimate power to decide which between
the conflicting theories of the parties should be believed.
Thus, inJoaquin, Jr. v. Drilon, G.R. No. 108946, January 28,1999, (302
SCRA 225) the Court affirmed the DOJ Secretary's power of control over the
authority of a state prosecu
184 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

tor to conduct preliminary investigations on criminal actions. Thus, it held:


"In reviewing resolutions of prosecutors, the Secretary of Justice is not
precluded from considering errors, although unassigned, for the purpose of
determining whether there is probable cause for filing cases in court. He must
make his own finding of probable cause and is not confined to the issues raised by
the parties during preliminary investigation. Moreover, his findings are not subject
to review unless shown to have been made with grave abuse."

2. It is only where the decision of the Justice Secretary is tainted with


grave abuse of discretion amounting to lack or excess of jurisdiction that the
Court of Appeals may take cognizance of the case in a petition for
certiorari
under Rule 65 of the Revised Rules of Civil Procedure. The Court of Appeals
decision may then be appealed to the Supreme Court by way of a petition for
review oncertiorari (Asetre v. Asetre, G.R. No. 171536, April 7, 2009).
Assailing the resolution of the Secretary of Justice; petition for review
under Rule 43 not allowed; Petitioncertiorari
for under Rule 65
1. The rule is that the DOJ is not a quasi-judicial agency exercising a
quasi-judicial function when it reviews the findings of a public prosecutor
regarding the presence of probable cause and that its findings are not
reviewable by the Court of Appeals in a petition for review under Rule 43 of
the Rules of Court (Bautista v. Court of Appeals, G.R. No. 143375, July
6,2001; Santos v. Go, G.R. No. 156081, October 19,2005). Rule 43 is an
improper remedy. The remedy of the aggrieved party is to file a petition for
certiorariunder Rule 65
(Levi Strauss [Phil.], Inc. v. Lim, 573 SCRA 25).
2. In Alcaraz v. Gonzalez, G.R. No. 164715, September 20, ,2006
the threshold issue that confronted the Court was whether or not the petition
for review under Rule 43 of the Rules of Court was the proper remedy of
respondent against the resolution of the Secretary of Justice.
CHAPTER IV 185
PRELIMINARY INVESTIGATION

In Alcaraz, the Court agreed with petitioner's contention that


respondent resorted to an improper remedy when he filed a petition for
review under Rule 43 of the Rules of Court, instead of filing a petition for
certiorariunder Rule 65.
It was stressed that in the determination of probable cause during the
preliminary investigation, the executive branch of government has full
discretionary authority. Thus, the decision whether or not to dismiss the
criminal complaint against the private respondent is necessarily dependent on
the sound discretion of the Investigating Prosecutor and ultimately, that of the
Secretary of Justice. Courts are not empowered to substitute their own
judgment for that of the executive branch.
Alcaraz further explained that the resolution of the Investigating
Prosecutor is subject to appeal to the Justice Secretary who, under the Revised
Administrative Code, exercises the power of control and supervision over said
Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the
ruling of such prosecutor. Thus, while the CA may review the resolution of the
Justice Secretary, it may do so only in a petition for under Rule 65 of
certiorari
the Rules of Court, solely on the ground that the Secretary of Justice committed
grave abuse of his discretion amounting to excess or lack of jurisdiction.
It bears stressing, declared the Court, that the Resolution of the Justice
Secretary affirming, modifying or reversing the resolution of the Investigating
Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000
National Prosecution Service Rules on Appeals), resolutions in preliminary
investigations or reinvestigations from the Justice Secretary's resolution, the
aggrieved party has no more remedy of appeal except to file a motion for
reconsideration of the said resolution. The remedy of the aggrieved party is to
file a petition for
certiorariunder Rule 65 of the Rules of Court since there is no
more appeal or other remedy available in the ordinary course of law.
In Alcaraz, the respondent filed a petition for review under Rule 43 of the
Rules of Court, assailing the resolutions
186 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

of the Justice Secretary. Instead of dismissing the petition, however, the CA


gave due course to it and thereafter granted the petition on its finding that the
Justice Secretary erred in reversing the resolution of the Investigating
Prosecutor which found probable cause against petitioner for attempted
homicide. Patently, ruled the Court, the ruling of the CA is incorrect.

3. A corollary rule is the adoption by the Court of a policy of


non-interference in the conduct of preliminary investigations and leaves to the
investigating prosecutor sufficient latitude of discretion in the determination of
what constitutes sufficient evidence as will establish probable cause for the
filing of information against the supposed offender. But as in every rule, there
are settled exceptions. The principle does not apply when there is a grave
abuse of discretion which would authorize the aggrieved person to file a
petition forcertiorari and prohibition under Rule 65, 1997 Rules of Civil
Procedure(Sy Thiong Shiou v. Sy Chim, G.R. No. 174168, March 30, 2009).
4. In a case, the Respondents argue that the findings of the DOJ in
affirming, modifying or reversing the recommendations of the public
prosecutor dismissing certain criminal complaints cannot be the subject of
certiorarior review of the Court of Appeals because the DOJ is not a quasi-
judicial body within the purview of Section 1, Rule 65 of the Rules of Court.
In the same case, the Court conceded that a preliminary proceeding is
not a quasi-judicial function and that the DOJ is not a quasi-judicial agency
exercising a quasi-judicial function when it reviews the findings of a public
prosecutor regarding the presence of probable cause but whether there is
reasonable ground to believe that the accused is guilty of the offense charged
and should be subjected to the expense, rigors and embarrassment of trial, is
the function of the prosecution. The Court further declared that it has adopted
a policy of noninterference in the conduct of preliminary investigations and
leaves to the investigating prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient
CHAPTER IV 187
PRELIMINARY INVESTIGATION

evidence as will establish probable cause for the filing of


information against the supposed offender.
However, the Court also held:
"As in every rule, however, there are settled excep-
tions. Hence, the principle of non-interference does not
apply when there is grave abuse of discretion which
would authorize the aggrieved person to file a petition for
certiorariand prohibition under Rule 65, 1997 Rules of
Civil Procedure, x x x As correctly found by the Court of
Appeals, the DOJ gravely abused its discretion x x x "
(Sy Tiong Shiou v. Sy Chim, G.R. No. 174168, March 30,
2009).

5. In another case it was similarly ruled that while it


is generally the Secretary of Justice who has the authority to
review the decisions of the prosecutors, the same precedential
principles apply in full force and effect to the authority of the
Court of Appeals to correct the acts tainted with grave abuse
of discretion by the prosecutorial officers notwithstanding the
filing of the informations
(Filemon A. Verzano, Jr. v. Francis
Victor D. Paro, G.R. No. 171643, August 8,2010).

Appeal to the Office of the President


1. While judicial pronouncements do not allow an ap-
peal to the Court of Appeals under Rule 43 from the resolu-
tion of the Secretary of Justice, the appeal referred to in such
pronouncements evidently pertains only to a appeal.
judicial
2. An administrative appeal is not proscribed by the
previously cited jurisprudence. Likewise, Memorandum
Circular No. 58 dated June 30, 1993 provides that appeals
from or petition for review of "decisions/orders/resolutions
of the Secretary of Justice on preliminary investigations of
criminal cases are entertained by the Office of the President"
under the following conditions which have to be established as
jurisdictional facts:
(a) The offense involved is punishable by
reclusion
perpetua to death(Angeles v. Gaite, G.R. No. 176596,
March 23, 2011);
188 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

(b) New and material issues are raised which were not
previously presented before the Department of Justice and were not
hence, ruled upon;
(c) The prescription of the offense is not due to lapse within six
(6) months from notice of the questioned resolution; and
(d) The appeal or petition for review is filed within thirty (30)
days from notice.
If the appeal does not clearly fall within the jurisdiction of the Office of
the President, the appeal shall be dismissed outright. If the lack of jurisdiction is
not readily apparent, the appellant/petitioner shall be ordered to prove the
necessary jurisdictional facts.
3. In the event of an adverse decision against the appellant, a verified
petition for review may be taken to the Court of Appeals within fifteen (15)
days from notice of the final order of the Office of the President and following
the procedure set forth under Rule 43 of the Rules of Court.
In De Ocampo v. Secretary of Justice, G.R. No. 147932, January 25,
2006, the OSG contends that instead of filing a Rule 65 petition with the
Supreme Court, the petitioner should have availed of Rule 43 in the case under
consideration. Thus, the OSG argues that the petition should be dismissed
outright for being a wrong mode of appeal. On the other hand, assuming Rule
65 applies, the OSG points out that the petition for should be filed
certiorari
with the Court of Appeals.
De Ocampo held that based on Memorandum Circular No. 58 the
resolution of the DOJ Secretary is appealable administratively to the Office of
the President since the offenses charged in this case are punishable by
reclusion perpetua.The Court further explained that even assuming that the
DOJ Secretary committed a grave abuse of discretion amounting to lack or
excess of jurisdiction in rendering the assailed resolutions, the petitioner
should have filed the instant petition for
certiorariwith the Court of Appeals.
Hence, on the issue alone of the propriety of the remedy sought by petitioner,
the petition for
certiorarimust fail.
fin
CHAPTER IV 189
PRELIMINARY INVESTIGATION

Appeals under Rule 43 and Rule 45


1. From the Office of the President, the aggrieved party may file an
appeal with the Court of Appeals pursuant to Rule 43. Under Sec. 1 of Rule 43,
the final orders or resolutionsthe
of Office of the Presidentappealable
is to the
Court of Appeals by filing a verified petition for review following the procedure
set by Sec. 5 and 6 of Rule 43.
2. The party aggrieved by the judgment, final order or resolution of
the Court of Appeals may avail of appeal
an by
certiorari(petition for review on
certiorari)to the Supreme Court under Rule 45.

Records supporting the information or complaint filed in court


1. It is not only the complaint or the information that is filed in court.
The rule requires in the clearest of terms that an information or complaint filed
in court shall besupported by the affidavits and counter-affidavits of the parties
and their witnesses, together with the other supporting evidence and the
resolution on the case
(Sec. 7[a], Rule 112, Rules of Court).
2. The record of the preliminary investigation shall not form part of
the record of the case. This rule applies not only to the preliminary
investigation conducted by the prosecutor but also to a preliminary
investigation made by other officers as may be authorized by law. Although not
part of the record of the case, the court, on its own initiative or on motion of
any party, 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(Sec. 7[b], Rule 112, Rules of Court).

Action of the judge upon the filing of the complaint or information


1. Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the reso
190 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

lution of the prosecutor. In conducting the evaluation of the resolution, the


judge shall look into its supporting evidence (Sec. 5, Rule 112, Rules of Court).
2. The judge may make some findings after personally evaluating the
resolution of the prosecutor. The judge may find that the evidence (a) fails to
establish probable cause; (b) establishes probable cause; or (c) engenders a
doubt as to the existence of probable cause.
If the evidence on record clearly , the
fails to establish probable cause
judge may immediately dismiss the case.
If he finds probable cause, he shall issue a warrant of arrest. If a
complaint or information was already filed pursuant to a lawful warrantless
arrest under Sec. 6 of Rule 112, the court shall issue a commitment order
instead of a warrant of arrest. The same rule applies if the accused has already
been arrested pursuant to a warrant previously issued.
In case the judge doubts the existence of probable cause,the judge
may order the prosecution to submit additional evidence within five (5) days
from notice. The issue must be resolved by the court within thirty (30) days
from the filing of the complaint or information
(Sec. 5, Rule 112, Rules of Court
as amended by AM. 05-08-26-SC, August 30,2005).
3. Jurispruden
ce reiterates the rule thus:
The options available to
the
RTC upon the filing of an information before it by the public prosecutor or any
prosecutor of the Secretary of Justice, are the following: (1) dismiss the case if
the evidence on record clearly failed to establish probable cause; (2) if the RTC
finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to
the existence of probable cause, order the prosecutor to present additional
evidence within 5 days from notice, the issue to be resolved by the court
within thirty (30) days from the filing of the information. The Supreme Court
held that dismissal of the case by the RTC judge in a case did not amount to
grave abuse of discretion. Rather, it clearly showed his compliance with his
duty to personally evaluate the resolution of the prosecutor and its supporting
evidence
CHAPTER IV 191
PRELIMINARY INVESTIGATION

(Elvira O. Ongv. Jose Casim Genio, G.R. No. 182336, December 23, 2009).

When warrant of arrest is not necessary


1. A warrant of arrest is not required in the following instances:
(a) When a complaint or information has already been filed
pursuant to a lawful warrantless arrest,
i.e., if the accused is already
under detention and was lawfully arrested without a warrant and a
complaint or information has been filed pursuant to Sec. 6,(Sec.
Rule 112
also when a warrant has already been
5[c], Rule 112, Rules of Court);
issued by the MTC judge pursuant to Sec. 5[b] of Rule 112 and the
accused is already detained (Sec. 5(c), Rule 112).
(b) When the accused is charged for an offense punishable only
by fine(Sec. 5[c], Rule 112); or
(c) When the case is subject to the Rules on Summary
Procedure(Sec. 16, 1991 Rule on Summary Procedure).
2. It is within the discretion of the judge to issue a warrant for the
arrest of an accused in a criminal case. A judge is required to 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. However, if he finds probable cause, then he is mandated by
law to issue such warrant. While before it was mandatory for the investigating
judge to issue a warrant for the arrest of the accused if he found probable
cause, the rule is that the investigating judge's power to order the arrest of the
accused is limited to instances in which there is a necessity for placing him in
custody "in order not to frustrate the ends of justice." The arrest of the accused
can be ordered only in the event that the prosecutor files the case and the
judge of the RTC finds probable cause for the issuance of the warrant of arrest
(Pangan v. Ganay, 445 SCRA 574 citing Concerned Citizens of Maddela v. De
la Torre-Yadao, 39&SCRA 217).
192 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

Withdrawal of the information already filed in court (Bar 1990; 2003)


1. In Crespo v. Mogul, 151 SCRA 462, the issue raised is whether the
trial court acting on a motion to dismiss a criminal case filed by the Provincial
Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the
arraignment and trial on the merits.
Grappling with the issue, the Court unequivocally held that the rule in
this jurisdiction is that 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. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in court, he cannot impose his
opinion on the trial court. The trial court is the best and sole judge on what to
do with the case before it. The determination of the case is within its exclusive
control and competence. A motion to dismiss the case filed by the public
prosecutor should be addressed to the court which has the option to grant or
deny the same. Crespo likewise ruled that it does not matter if this is done
before or after arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed
the records of the investigation. The court, in the exercise of its discretion may
deny the motion and require that the trial on the merits proceed for the
proper determination of the case.
2. It is vital to bear in mind that in resolving a motion to dismiss the
case or to withdraw the information filed by the public prosecutor on his own
initiative or pursuant to the directive of the Secretary of Justice, either for
insufficienc
y of the evidence or for
lack ofprobable cause, the trial court should
not rely solely on the findings of the public prosecutor or the Secretary of
Justice that no crime was committed or that the evidence is insufficient to
support a conviction. The triaLeourt must make an independent evaluation or
assessment tff the
CHAPTER IV 193
PRELIMINARY INVESTIGATION

merits of the case and the evidence on record of the prosecution


(Santos v.
The dismissal cannot be merely based on the findings
Orda, Jr., 437 SCRA 504).
of the Secretary of Justice that no crime was committed. Reliance cannot be
placed solely on the conclusion of the prosecution that there is no sufficient
evidence against the accused. The grant of the motion to dismiss cannot be
based upon considerations other than the judge's ownpersonal
and convict
ion
that there was no case against the accused. In other words, the judge himself
must be convinced that there was, indeed, no sufficient evidence against the
accused, and this conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution
(Martinez v. Court of Appeals,
237 SCRA 575; Gandarosa v. Flores, G.R. No. 167910,17July 2007,527 SCRA
776; Co v. Lim, G.R. Nos. 164669-70, October 30,2009; Harold V. Tamargo v.
Romulo Awingan, Lloyd Antiporda and Licerio Antiporda, Jr., G.R. No.
177727, January 19, 2010; Leonardo U. Flores v. Hon. Raul S. Gonzales, G.R.
No. 188197, August 3,2010).
3. The trial court should not rely solely and merely on the findings of
the public prosecutor or the Secretary of Justice that no crime was committed
The trial court has the option to grant or
(Santos v. Orda, Jr., 437 SCRA 504).
deny the motion to dismiss filed by the (Ledesma
fiscal v. Court of Appeals,
278 SCRA 656).
It may either agree or disagree with the recommendation of the
Secretary. Reliance alone on the resolution of the Secretary would be an
abdication of the trial court's duty and jurisdiction to determine a
prima facie
case(Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No.
163741, August 7, 2007, 529 SCRA 274).
4. Once a criminal action has been instituted by the filing of the
Information with the court, the latter acquires jurisdiction and has the authority
to determine whether to dismiss the case or convict or acquit the accused.
Where the prosecution is convinced that the evidence is insufficient to establish
the guilt of an accused, it cannot be faulted for
194 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

moving for the withdrawal of the Information. However, in granting or denying


the motion to withdraw, the court must judiciously evaluate the evidence in
the hands of the prosecution. The court must itself be convinced that there is
indeed no satisfactory evidence against the accused and this conclusion can
only be reached after an assessment of the evidence in the possession of the
prosecution(Ramos v. People, G.R. No. 171565, July 13,2010).
5. The court must itself be convinced that there is indeed no
sufficient evidence against the accused. The judge must not also ignore
relevant pieces of evidence necessary to resolve the motion and must look at
everything made available to the judge such as affidavits and
counter-affidavits, documents or evidence appended to the information, the
records of the public prosecutor or any evidence already adduced before the
court at the time the motion is (Tamargo
filed v. Awingan, G.R. No. 177727,
January 19, 2010).
6. It bears emphasizing that when the trial court grants a motion of
the public prosecutor to withdraw the Information in compliance with the
directive of the Secretary of Justice, or to deny the said motion, it does so not
out of compliance to or defiance of the directive of the Secretary of Justice, but
in sound and faithful exercise of its judicial prerogative. The trial court is the
best and sole judge on what to do with the case before it. The rule applies to a
motion to withdraw the Information or to dismiss the case even before or after
the arraignment of the accused. The prior determination of probable cause by
the trial court does not in any way bar a contrary finding upon reassessment of
the evidence presented before it
(Ramos v. People, G.R. No. 171565, July
13,2010).
7. In a fairly recent case, a motion to withdraw an information filed
by the city prosecutor was denied by the trial court. Without moving for a
reconsideration of the order denying the motion, the accused filed a petition
for mandamuswith the Supreme Court to seek a reversal of the order of the
trial court. The Court also ruled, as it had done in past cases, that the trial court,
when confronted with a motion to withdraw an information on the ground of
lack of probable
CHAPTER IV 195
PRELIMINARY INVESTIGATION

cause, is not bound by the resolution of the prosecuting arm of the


government, but is required to make an independent assessment of the merits
of such motion(Hipos, Sr. v. Bay, G.R. No. 174813-15, March 17, 2009;
Baltazar v. Chua, G.R. No. 177583, February 27, 2009).
8. In Lee v. KC Bank, N.V., G.R. No. 164673, January 15, 2010,
the
trial court was confronted with a motion to withdraw an information for estafa
filed against the respondents. The court granted the motion in an order stating
that it had made "an in-depth scrutiny of the arguments raised by the
prosecution and private complainant" and that it "finds the contentions of the
prosecution to be sufficient and meritorious." An order of this tenor was ruled
to be insufficient. The Supreme Court declared the judge must in his order,
positively state that the evidence presented against the respondents was
insufficient for a prima facie case. It must include a discussion of the merits of
the case based on an evaluation or assessment of the evidence on record, look
at the basis of the recommendation of the prosecution, and state the reasons
for granting the motion to withdraw the information and must embody the
assessment in the order.
If these requirements are not complied Leewith,v. KC Bank, N.V.,
concludes that a dismissal of the case would then be based upon
considerations other than the judge's own personal individual conviction that
there was no case against the respondents and showed that the trial judge
improperly relinquished the discretion that he was bound to exercise.
9. In another case, the petitioner laments the trial court's denial of the
Motion to Withdraw Information filed by the investigating prosecutor due to
the latter's finding of lack of probable cause to indict him. He argues that such
denial effectively deprived him of his substantive rights.
Still, petitioner's argument fails to persuade. There is nothing
procedurally improper on the part of the trial court in disregarding the result of
the preliminary investigation it itse]|jordered. Judicial action on the motion
rests in the sound exercise of judicial discretion. In denying the motion, the
196 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

trial court just followed the jurisprudential rule laid down in


Crespo v. Judge Mogul, 235Phil. 465 , that once a complaint or
information is filed in court, any disposition of the
case as to
its dismissal or the conviction or acquittal of the accused rests
on the sound discretion of the court(Evangelista v. People,
G.R. No. 163267, May 5,2010).
10. The basic rule is simple: While the Secretary of
Justice has the power to alter or modify the resolution of his
subordinate and thereafter direct the withdrawal of the case,
he cannot, however, impose his will on the(Dumlao court v.
Ponferrada, 508 SCRA 426).
11. In a case on appeal, petitioner argues that the filing
of the informations in the MTCC had already removed the
cases from the power and authority of the prosecution to
dismiss the same in accordance with the doctrine laid down in
Crespo v. Mogul (Crespo).In denying the petition, the Supreme
Court ruled thatCrespodoes not foreclose an appeal made of
the resolution of a prosecutor in the determination of probable
cause notwithstanding that informations had already been
filed in court. The Supreme Court clarified that did
Crespo
not foreclose the power or authority of the Secretary of Justice
to review resolutions of his subordinates in criminal cases.
The Supreme Court recognized that in the action
Crespo,
of the investigating fiscal or prosecutor in the preliminary
investigation is subject to the approval of the provincial or
city fiscal or chief state prosecutor. Thereafter, it may be
appealed to the Secretary of Justice. The justice secretary's
power of review may still be availed of despite the filing of an
information in court (FilemonA. Verzano, Jr. v. Francis Victor
D. Paro, G.R. No. 171643, August 8, 2010).

Some judicial pronouncements on preliminary investigation


1. One case(Sierra v. Lopez, A.C. 7549, August 29,
2008) makes important judicial pronouncements on prelimi-
nary investigation.
In Sierrathe complainant in an administrative case^filed
a complaint with the Supreme Court for dereliction of duty and
CHAPTER IV 197
PRELIMINARY INVESTIGATION

gross ignorance of the law against certain prosecutors. The complainant raised
the following questions of law: (1) whether the parties must appear together
before the investigating prosecutor during preliminary investigation; (2)
whether the counter-affidavits of the respondents should be sworn to only
before the investigating prosecutor; and (3) whether the investigating

prosecutor erred in denying the request of the complainant for clarificatory


questioning.
Ruled the Court:

"We find no merit in the complaint. Rule 112, particularly


Section 3 of the Rules of Court, lays down the basic procedure in
preliminary investigation x x x
"This provision of the Rules does not require a confrontation
between the parties. Preliminary investigation is ordinarily
conducted through submission of affidavits and supporting
documents, through the exchange of pleadings.
xxx
"Since confrontation between the parties is not imperative, it
follows that it is not necessary that the counter-affidavit of
respondent be sworn to before the investigating prosecutor
himself. It can be sworn to before another prosecutor. In fact, this
is specifically provided in paragraph (c) of Sec. 3, which states that
the "counter- affidavit shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section x x x;" and
paragraph (a), provides: the affidavits shall be subscribed and
sworn to before any prosecutor or government official or in their
absence or unavailability, before a notary public
xxx.
"Lastly, we hold that the investigating prosecutors did not
abuse their discretion when they denied the request of the
complainant for the conduct of clarificatory questioning. Under
paragraph (e) of Section 3 above, the conduct of clarificatory
questioning is discretionary upon the prosecutor. Indeed, we
already held inWebb v. De Leon (G.R. Nos. 121245 & 121297, August
23,1995), that the decision to call witnesses for clarificatory
questions
198 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

is addressed to the sound discretion of the investigator,


and the investigator alone"
(Sierra v. Lopez, A.C. 7549,
August 29,2008).

2. The principle of estoppel was once applied in a preliminary

investigation
Sandiganbayan,inG.R.
theNo.
Ombudsman
136082 May in
12, a much earlier(Bautista
2000). case v.

In Bautista, an anonymous, unverified and unsigned let- ter-complaint


purportedly emanating from certain named associations, was filed with the
Office of the Ombudsman against the petitioner for violation of Sec. 3, par. (e),
of R.A. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act for among others, causing the hiring of one hundred and
ninety-two (192) casual employees in the municipal government for political
considerations and that the payment of their honoraria and salaries was
charged to the peace and order fund despite meager savings of the
municipality.
The petitioner was directed to submit his counter-affidavit to the
letter-complaint which petitioner did. Thereafter, an information for violation
of Sec. 3, par. (e), of R.A. 3019, as amended, was filed against petitioner before
the Sandiganbayan. The petitioner assailed the Ombudsman for failing to
direct the complainants to reduce their evidence into affidavits before
requiring him to submit his counter-affidavit. Petitioner invoked Sec. 4, Rule II,
of the Rules of Procedure of the Ombudsman which requires that for
purposes of conducting a preliminary investigation, the complainant must
submit his affidavit and those of his witnesses before respondent can be
required to submit his counter-affidavit and other supporting documents.
Conformably with such rule, the petitioner argued that the Ombudsman
should have first required the associations to submit their respective affidavits
before requiring him as respondent to submit his counter-affidavit, especially
since the letter-complaint was unsigned and unverified; hence, there was no
valid cause ofaction against petitioner.
The arguments ofthe petitioner failed to impress the Court. While it was
true that he was directed to submit his counter-
CHAPTER IV 199
PRELIMINARY INVESTIGATION

affidavit thereto without requiring the complainants to verify their


letter-complaint, however, despite the Ombudsman's noncompliance with the
affidavit requirement, the petitioner filed his counter-affidavit and answered
the charges against him. Hence, according to the Court, having submitted
himself to the jurisdiction of the Ombudsman and having allowed the
proceedings to go on until the preliminary investigation was terminated and the
information filed at the Sandiganbayan, the petitioner was deemed to have
waived whatever right he may otherwise have to assail the manner in which
the preliminary investigation was conducted. Consequently, petitioner was
likewise estopped from questioning the validity of the information filed before
the Sandiganbayan (Bautista v. Sandiganbayan, G.R. No. 136082, May 12,
2000).
3. May a complaint affidavit notarized in a foreign jurisdiction be the
basis for a preliminary investigation? This question was answered by the Court
in Sasot v. People, G.R. No. 143193, June 29,2005.
The case involved a criminal prosecution against petitioners for unfair
competition under Article 189 of the Revised Penal Code, filed before the
Regional Trial Court. Petitioners were alleged to be engaged in the
manufacture, printing, sale, and distribution of counterfeit "NBA" garment
products.
In a Special Power of Attorney the President of NBA Properties, Inc.,
constituted a local law firm, as the company's attorney-in-fact, to act for and its
behalf in the filing of criminal, civil and administrative complaints, among
others. The Special Power of Attorney was notarized by a notary public of New
York County and certified by the County Clerk and Clerk of the Supreme Court
of the State of New York. A Philippine Consul of the Consulate General of the
Philippines in New York, authenticated the certification. The company
president also executed a Complaint-Affidavit before the same notary public of
the State of New York.
Before they entered their pleas, the petitioners moved to quash the
information arguing among others, that the fiscal should have dismissed the
complaint filed during the
200 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

preliminary investigation because under the rules, the complaint must be


sworn to before the prosecutor. The trial court sustained the prosecution and
denied petitioners' motion to quash.
The special civil action certiorari
for with the Court of Appeals was
dismissed. Petitioners sought reconsideration of the dismissal of the petition
but the same was likewise denied.
The petition for review certiorari
on under Rule 45 of the Rules of Court
filed before the Supreme Court now reiterates the argument that the
complaint filed is defective and should have been dismissed by the fiscal
because it should have been personally sworn to by the complainant before
the investigating prosecutor.
The petition was denied by the Supreme Court, which declared
emphatically that a complaint is substantially sufficient if it states the known
address of the respondent, it is accompanied by complainant's affidavit and his
witnesses and supporting documents, and the affidavits are sworn to before
any fiscal, state prosecutor or government official authorized to administer
oath, orin their absence or unavailability, a notary public who must certify
that he personally examined the affiants and that he is satisfied that they
All these have been duly
voluntarily executed and understood their affidavits.
satisfied in the complaint filed before the prosecutor. The Court added that the

absence
Want of anis oath
of oath in defect
a mere the complaint
of form, does
whichnot necessarily
does not affect render it invalid.
the substantial
rights of the defendant on the merits. Note: The case was decided under Sec. 3
of Rule 112 ofthe 1985 Rules of Criminal Procedure which has substantially the
same provisions as Sec. 3 of Rule 112 of the 2000 Rules of Criminal Procedure.

- oOo -
Chapter V

ARREST, SEARCH AND SEIZURE

I. ARREST (RULE 113)

Arrest; how arrest made


Law enforcement officers are entrusted with the power to
conduct investigations, make arrests, perform searches and
seizures of persons and their belongings, and occasionally use
lethal force in the line of duty. This authority must be exercised
within the boundaries of the law because when officers exceed
those boundaries, they jeopardize the admissibility of any
evidence collected for prosecution.
1. An arrest is the taking of a person into custody in
order that he may be bound to answer for the commission of an

offense(Sec. 1, Rule 113, Rules of Court).


Under this definition,
— to
a person is arrested for a specific and definite purpose
make him answer for the commission of an offense.
2. To make an arrest, a person need not be actually
restrained by the person making the arrest. Under the Rules
of Court, a submission to the custody of the person making the
arrest already constitutes an arrest
(Sec. 2, Rule 113, Rules of
Court).Whichever means is used to make an arrest, the term
necessarily implies control over the person under custody and
as a consequence, a restraint on his liberty to the extent that
he is not free to leave on his own volition.
3. Knowing whether or not an arrest has been made
is oftentimes crucial to the analysis of the legality of the acts
of the arresting officer. For instance, if an arrest has actually

201
202 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

been made and at the time of the apprehension a crime has


already been committed, the arrest may be deemed infirm
unless it be based onprobable
a causethat the person arrested
committed the offense. Sec. 5(b) of Rule 113 further requires
that the probable cause must be based on the know-
personal
ledge by the arresting officer of facts and circumstances that
the arrestee is indeed the perpetrator of the criminal act.
If the act of the officer does not amount to an arrest, the
requirements of probable cause and personal knowledge of
facts and circumstances will certainly not be prerequisites to
the legality of the said act and said act would be reviewed on
the basis of some other standards.
As will be seen later, the legality of an arrest is of vital
importance when subsequent to the arrest a seizure of evidence
follows because the admissibility of the evidence would hinge
on the legality of the prior arrest. It is not surprising that most
criminal cases reaching the Supreme Court involve prayers
for the suppression of
evidence obtained after alleged illegal
arrests.

Requisites for the issuance of a warrant of arrest

Sec. 2 of Article III (Bill of Rights) of the Constitution of


the Philippines in part declares:

"Sec. 2 . . . . no search warrant or warrant of arrest


shall issue except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be
searched and the persons or things to be seized."

1. It is constitutionally mandated that a warrant


of arrest shall issue only upon
finding of probable cause
personally determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he/
she may produce, and particularly describing the person to be
seized(Tabujara III v. People, G.R. No. 175162, October 29,
2008).
CHAPTER V 203
ARREST, SEARCH AND SEIZURE

An arrest without a probable cause is an unreasonable seizure of a


person, and violates the privacy of persons which ought not to be intruded by
the State (Borlongan v. Peha, G.R. No. 143591, May 5, 2010).
Probable cause in connection with the issuance of a warrant of arrest,
assumes the existence of facts that would lead a reasonably discreet and
prudent man to believe that a crime has been committed and that it was likely
committed by the person sought to be arrested. The test for issuing a warrant
of arrest is less stringent than that used for establishing the guilt of the accused
It is such set of facts and
(People v. Tan, G.R. No. 182310, December 9, 2009).
circumstances as would lead a reasonably discreet and prudent man to believe
that the offense charged in the Information, or any offense included therein,
has been committed by the person sought to be arrested. In determining
probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. A finding of probable cause
needs only to rest on evidence showing that, more likely than not, a crime has
been committed and that it was committed by the accused. Probable cause
demands more than suspicion; it requires less than evidence that would justify
conviction(People v. Gabo, G.R. No. 161083, August2010).
3,
2. While it seems to appear that the constitution requires the judge to
personally examine the complainant and his witnesses under oath by asking
searching questions, the case
of AAA v. Carbonell, G.R. No. 171465, June 8,
2007, is enlightening.
In AAA v. Carbonell,the petitioner, the alleged victim, assailed the orders
of the trial court dismissing the rape case filed against the private respondent
for lack of probable cause and another order denying the petitioner's motion
for reconsideration. The facts show that after an information for rape was filed
with the trial court, the accused filed a motion for the determination of
probable cause. The court granted the motion and directed the petitioner and
her witnesses to
204 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

take the witness stand. But instead of taking the witness stand, the petitioner
filed a motion for reconsideration claiming that the documentary evidence
already sufficiently established the existence of probable cause. The petitioner
contends that the judge is not required to personally examine the complainant
and her witnesses in satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest. She argues that the respondent should
have taken into consideration the documentary evidence as well as the
transcript of stenographic notes which sufficiently established the existence of
probable cause.
The respondent judge in his comment submitted to the Highest Court,
argued that the finding of probable cause by the investigating prosecutor is not
binding or obligatory upon him. He claimed that he was justified in requiring
the petitioner and her witnesses to take the witness stand in order to
determine probable cause since under Section 2, Article HI of the 1987
Constitution, no warrant of arrest shall issue except upon probable
"to cause
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce He "
contended that the refusal of the petitioner to sit on the stand and be
examined negated the existence of probable cause.
The records, as discovered by the Court, disclosed that the respondent
judge dismissed the case without evaluating the evidence in support of the
resolution of the Assistant Provincial Prosecutor, the convened Panel of
Prosecutors, and the Department of Justice which all sustained a finding of
probable cause against the accused. The respondent judge's finding of lack of
probable cause was premised only on the complainant's and her witnesses'
absence during the hearing scheduled by the respondent judge for the judicial
determination of probable cause.
The Supreme Court found the respondent to have committed a grave
abuse of discretion for dismissing the criminal case on the ground that
petitioner and her witnesses failed to comply with his orders to take the
witness stand.
CHAPTER V 205
ARREST, SEARCH AND SEIZURE

Citing the leading case Soliven


of v. Makasiar, G.R. Nos. L-82585,
L-82827, November 14, 1988, the Court explained that this constitutional
provision does not mandatorily require the judge to personally examine the
complainant and her witnesses. Instead, he may opt to personally evaluate the
report and supporting documents submitted by the prosecutor or he may
disregard the prosecutor's report and require the submission of supporting
affidavits of witnesses. The argument that the Constitution now requires the
judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest is not an
accurate interpretation.
The Court adds:
"What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of probable
cause. In satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Fol- lowing established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
"Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their
underscoring supplied)
courts.'T

We reiterated the above ruling in the case Webbof v. De Leon, 247


SCRA 653,where we held that before issuing warrants of arrest, judges merely
determine the probability, not the certainty, of guilt of an accused. In doing so,
judges do not conduct a de novohearing to determine the existence
206 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

of probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence.
XXX

True, there are cases where the circumstances may call for the judge's
personal examination of the complainant and his witnesses. But it must be
emphasized that such personal examination is not mandatory and
indispensable in the determination of probable cause for the issuance of a
warrant of arrest. The necessity arises only when there is an utter failure of the
evidence to show the existence of probable cause. Otherwise, the judge may
rely on the report of the investigating prosecutor, provided that he likewise
evaluates the documentary evidence in support thereof."(underscoring
supplied)
Indeed, what the law requires as
personal on the part of
determination
the judge is that he should not solely
rely on the report of the investigating
prosecutor. InOkabe v. Gutierrez, G.R. No. 150185, May 27, 2004, we
stressed that the judge should consider not only the report of the investigating
prosecutor but also the affidavit and the documentary evidence of the parties,
the counter-affidavit of the accused and his witnesses, as well as the transcript
of stenographic notes taken during the preliminary investigation, if any,

submitted to the court by the investigating prosecutor upon the filing of the
Information. If the report, taken together with the supporting evidence, is
sufficient to sustain a finding of probable cause, it is not compulsory that a
personal examination of the complainant and his witnesses be conducted, x x
x."
3. Talingdan v. Eduarte, 366 SCRA 559
declares in categorical terms:
"Interpreting the words personal determination ... it does not thereby
mean that judges are obliged to conduct the personal examination of the
complainant and his witnesses themselves, x x x. Rather what is emphasized
merely is the
exclusiveand personal responsibility
of the issuing judge to
CHAPTER V 207
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satisfy himself as to the existence of probable cause,What x xhe


x. is never
allowed to do is follow blindly the prosecutor's bare certification as to the
existence of probable cause .. (See also Lim, Sr. v. Felix, 194 SCRA 292).
4. In Borlongan v. Pefia, G.R. No. 143591, May 5,2010,
reiterating
the case ofSoliven v. Makasiar, 167 SCRA 293,
it was ruled that the words
"personal determination," in the Constitution, does not thereby mean that
judges are obliged to conduct the personal examination of the complainant
and his witnesses themselves. To require thus would be to unduly laden them
with preliminary examinations and investigations of criminal complaints
instead of concentrating on hearing and deciding cases filed before them.
Rather, what is emphasized merely is the exclusive and personal responsibility
of the issuing judge to satisfy himself as to the existence of probable cause. To
this end, he may: (a) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis
thereof he finds no probable cause, disregard the prosecutor's report and
require the submission of supporting affidavits of witnesses to aid him in
determining its existence. What he is never allowed said the Court, is to follow
blindly the prosecutor's bare certification as to the existence of probable cause.
Much more is required by the constitutional provision. Judges have to go over
the report, the affidavits, the transcript of stenographic notes if any, and other
documents supporting the prosecutor's certification. Although the extent of
the judge's personal examination depends on the circumstances of each case,
to be sure, he cannot just rely on the bare certification alone but must go
beyond it. This is because the warrant of arrest issues not on the strength of
the certification standing alone but because of the records which sustain it. He
should even call for the complainant and the witnesses to answer the court's
probing questions when the circumstances warrant.
5. In yet another recent case, respondents questioned the alleged
lack of personal determination of probable cause by the judge in issuing the
warrants for their arrest. The
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Court explained that the duty of the judge to determine probable cause to
issue a warrant of arrest as mandated Sec.by 2, Article HI of the
1987Philippine Constitutiondoes not mandatorily require the judge to
personally examine the complainant and her witnesses. Instead, he may opt to
personally evaluate the report and supporting documents submitted by the
prosecutor or he may disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses. What the law requires as
personal determination on the part of a judge is that he should not rely
solely
on the report of the investigating prosecutor. This means that the judge should
consider not only the report of the investigating prosecutor but also the
affidavit and the documentary evidence of the parties, the counter-affidavit of
the accused and his witnesses, as well as the transcript of stenographic notes
taken during the preliminary investigation, if any, submitted to the court by the
investigating prosecutor upon the filing of the information
(People of the
Philippines v. Gray, G.R. No. 180109, July 26,2010).
6. If the complaint or information is directly filed with the MTC under
Sec. 8(b) of Rule 112 in relation to Sec. 1(b) of Rule 110, the judge shall
personally evaluate the evidence or personally examine in writing and under
oath the complainant and his witnesses in the form of searching questions and
answers.

Preliminary inquiry (examination) versus preliminary investigation


1. There is a distinction between the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest and the
preliminary investigation proper which ascertains whether the offender should
be held for trial or be released. The determination of probable cause for
purposes of issuing the warrant of arrest is made by the judge. The preliminary
— whether or not there is reasonable ground to believe
investigation proper
— is the function of the
that the accused is guilty of the offense charged
investigating prosecutor
(AAA v. Carbonell, G.R. No. 171465, June 8,2007).
CHAPTER V 209
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2. A more recent case supports the declarations in Carbonelland


AAA v.
holds that "it is well to remember that there is a distinction between the
preliminary inquiry, which determines probable cause for the issuance of a
warrant of arrest, and the preliminary investigation proper, which ascertains
whether the offender should be held for trial
or be released. The
determination
of probable cause for purposes of issuing a warrant of arrest is made by the
judge. The preliminary investigation proper — whether or not there is
reasonable ground to believe that the accused is guilty of the offense charged
— is the function of the investigating prosecutor.
"The task of the presiding judge when the information is filed with the
court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused. The purpose of the mandate of
the judge to first determine probable cause for the arrest of the accused is to
insulate from the very start those falsely charged with crimes from the
tribulations, expenses and anxiety of a public trial" v. Gabo, G.R. No.
(People
161083, August 3,2010).

Method of arrest with a warrant; warrant need not be in possession of the


officer
1. When a warrant of arrest is issued by a judge, the warrant is
delivered to the proper law enforcement agency for execution.
The head of the office to whom the warrant of arrest was delivered shall
cause the warrant to be executed within ten (10) days from its receipt. Within
ten (10) days after the expiration of the period, the officer to whom it was
assigned for execution shall make a report to the judge who issued the
warrant. In case of his failure to execute the warrant, he shall state the reasons
for its non-execution
(Sec. 4, Rule 113, Rules of Court).
2. When making an arrest by virtue of a warrant, the officer shall (a)
inform the person to be arrested of the cause of his arrest, and (b) inform him
of the fact that a warrant has been issued for his arrest. The information need
not be made when the person to be arrested (a) flees, (b) forcibly resists, or
210 CRIMINALPROCEDURE:
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(c) the giving of the information will imperil the(Sec.


arrest
7, Rule 113, Rules
of Court).
3. The officer need not have the warrant in his possession at the time
of the arrest. However, after the arrest, the warrant shall be shown to him as
soon as practicable, if the person arrested so requires
(Sec. 7, Rule 113, Rules
of Court).
4. The officer assigned to execute the warrant of arrest has the duty
to deliver the person arrested to the nearest police station or jail without
unnecessary delay
(Sec. 3, Rule 113, Rules of Court).

No unnecessary violence
An underlying rule whenever an arrest is made is that no violence or
unnecessary force shall be used in making an arrest. The person arrested shall
not be subject to a greater restraint than is necessary for his (Sec.
detention
2,
Rule 113, Rules of Court).

Authority to summon assistance


It sometimes happens that an officer cannot on his own effectively make
the arrest. Hence, the authority to effect an arrest carries with it an authority to
orally summon as many persons as he deems necessary to assist him in
effecting the arrest. Every person summoned by an officer is required to give
the assistance requested provided he can do so without detriment to himself
The duty of the person summoned does
(Sec. 10, Rule 113, Rules of Court).
not arise when rendering assistance would cause harm to (Sec.
himself.
10,
Rule 113, Rules of Court).

When person to be arrested is inside a building


If the person to be arrested is or is reasonably believed to be within any
building or enclosure, the Rules authorize the officer, in order to make an
arrest, to break into any building or enclosure in case he is refused admittance
after announcing his authority and purpose
(Sec. 11, Rule 113, Rules of Court).
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ARREST, SEARCH AND SEIZURE

After entering the building or enclosure, he may break out from said place if
necessary to liberate himself from the same(Sec.
place
12, Rule 113, Rules of
Court).

When a warrantless arrest is lawful (Bar 1988; 1989; 1996; 1997; 2000;

2004; 2010)
1. The general rule as regards arrests, searches and seizures is that a
warrant is needed in order to validly effect the same. The Constitutional
prohibition against unreasonable arrests, searches and seizures refers to those
effected without a validly issued warrant
(Malacat v. Court of Appeals, 283
SCRA 159).Hence, the doctrine is that a warrant of arrest is required before an
arrest is made. A warrantless arrest is the exception.
2. The pertinent provisions of Rule 113 of the Rules on Criminal
Procedure provide for the instances when a warrantless arrest may be made:

— A peace
"Sec. 5.Arrest without warrant; when lawful.
officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense(in flagranteexception);
b) When an offense has just been committed, and he has
probable cause to believe based personal
on knowledg
e of facts or
circumstances that the person to be arrested has committed it
{hot pursuitexception); and
c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving
final judgment or is temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to
another"(escapeeexception).

A peace officer or a private person may, without a warrant, arrest a


person when, in his presence, the person to be arrested has committed, is
actually committing, or is attempt
212 CRIMINALPROCEDURE:
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ing to commit an offense


(People v. Garcia, 529 SCRA 519, August 8,2007).
3. Section 5 of Rule 113 provides three (3) instances when
warrantless arrest may be lawfully effected: (a) arrest of ainsuspect
flagrante
delicto; (b) arrest of a suspect where, based on personal knowledge of the
arresting officer, there is probable cause that said suspect was the author of a
crime which had just been committed (called hot pursuit.);(c) arrest of a
prisoner who has escaped from custody serving final judgment or temporarily
confined while his case is pending.
There is another ground for a warrantless arrest other than those
provided for under Sec. 5 of Rule 113 of the Rules of Court. That ground is
when a person previously lawftdly arrested escapes or is rescued. Under the
Rules, any person may immediately pursue or retake him without a warrant at
any time and in any place within the Philippines
(Sec. 13, Rule 113, Rules of
Court).
4. A bondsman may arrest an accused for the purpose of
surrendering him to the court. Also, an accused released on bail may be
re-arrested without a warrant if he attempts to depart from the Philippines
without permission of the court where the case is pending
(Sec. 23, Rule 114,
Rules of Court).

Who may make the warrantless arrest; duty of officer; citizen's arrest

1. The warrantless arrest may be made not only by a peace officer


but also by a private person. When the latter makes the arrest under the
circumstances provided for under the Rules, the arrest iscitizen's
called "
arrest"
A peace officer or a private person may, without a warrant, arrest a
person when, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an (People
offense v. Garcia,
529 SCRA 519, August 8,2007).
2. When an accused is caught , the police officers
in flagrante delicto
are not only authorized but are duty-bound to arrest him even without a
warrant.
CHAPTER V 213
ARREST, SEARCH AND SEIZURE

The basis of the exception; requisites


in flagrante delicto
1. Under Sec. 5(a), Rule 113, mere "suspicion" and "reliable
information" are not justifications for a warrantless arrest. The rule requires
that the accused perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to commit an offense.
2. The basis of this rule is the exception provided for in Sec. 5(a), Rule
113, thus:

" * * * When, in his presence, the person to be arrested has committed, is


actually committing, or is attempting to commit an offense * * * "

3. For a warrantless arrest of a person caught


in flagrante delicto
under paragraph (a) of Section 5 to be valid, two requisites must concur:
(a) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and
(b) such overt act is done in the presence or within the view of
the arresting officer
(People v. Racko, G.R. No. 186529, August 3, 2010;
People v. Laguio, G.R. No. 128587, March 16, 2007; Zalameda v.
People, G.R. No. 183656, September 4,2009).

4. Section 5(a) provides that a peace officer or a private person may,


without a warrant, arrest a person when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit, an
offense. Section 5(a) refers to arrest
in flagrante delicto. In flagrante delicto
means caught in the act of committing a crime. This rule, which warrants the
arrest of a person without warrant, requires that the person arrested has just
committed a crime, or is committing it, or is attempting to commit an offense,
in the presence within view of the arresting(People
officer v. Alunday, G.R. No.
181546, September 3, 2008). For instance, the rule is settled that an arrest
made after an entrapment
214 CRIMINALPROCEDURE:
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does not require a warrant inasmuch as it is considered a valid warrantless


arrest pursuant to Rule 113, Section 5(a) of the Rules of Court v.
(People
Cabugatan, 515 SCRA 537, February 12,2007).

Existence of an overt act of a crime in the presence of the person making

the arrest
1. Consider an experienced officer who upon noticing the characteristic
outlines of the handle of a pistol bulging from the waistline of a pedestrian,
stops him in the street, introduces himself as a policeman and without asking
any questions immediately arrests him, cuffs him and forces him inside a
waiting patrol car. Inside the car, the officer fishes out the firearm from the
arrestee's waist, asks him whether or not he has a license to possess and a
permit to carry the firearm, and after an admission from the person arrested
that his gun has neither a license nor any other permit, books him for illegal
possession of firearms. Whether or not the acts of the officer are permissible
under the law and the Rules will necessarily be determined by the requisites
provided for by Sec. 5(a) of Rule 113. The crucial issue to be laid before the
court would be whether or not having the butt of a pistol bulge from one's
waist plainly within the view of the officer conclusively constitutes an overt act
of the crime of illegal possession of firearm which would justify an immediate
arrest. The defense counsel would certainly argue that mere carrying of a pistol
does not in itself indicate a violation of the law since illegal possession of a gun
cannot be inferred from its mere possession. When the apprehension was
made, the officer had no awareness that a crime is being committed in his
presence since he had no prior knowledge that the person carrying the same
had no license for the firearm, a knowledge that came to him only after the
arrest. In short, it may be argued that there was absolutely nothing under the
facts that would show an overt act of a crime other than the mere suspicion
that the gun was unlicensed at the time of the arrest. The gun, under the
circumstances may become a "fruit of the poisonous tree" and would possibly
be held inadmissible in
evidence.
CHAPTER V 215
ARREST, SEARCH AND SEIZURE

On the other hand, the prosecutor may insist on the application of the
"plain view" doctrine to convince the Court to render a verdict of guilty. A
hypothetical situation like the above indicates that sometimes a thin line exists
between a legal and an illegal arrest and search.
2. Thus, it was ruled thatflagrante
a delictoarrest is not justified

when no one among the accused was committing a crime in the presence of
the police officers, more so if the police officers did not have personal
knowledge of the facts indicating that the persons to be arrested had
committed an offense. The searches conducted cannot be said to be merely
incidental to a lawful arrest. Reliable information alone is not sufficient to justify
a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition,
that the accused perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to commit an offense
(People v. Nuevas, G.R. No. 170233, February 22, 2007).
3. A 1988 case,People v. Aminnudin, 163 SCRA 402, demonstrates
the legal infirmity of an arrest for noncompliance with the requisites of the
flagrante delicto exception. Here, more than two days before the arrest,
constabulary officers received a tip from an informer that the accused was on
board an identified vessel on a particular date and time and was carrying
marijuana. Acting on the information, they waited for the accused and
approached him as he descended the gangplank of the ship and arrested him.

A subsequent
marijuana inspection
leaves. of declared
The Court his bag disclosed the presence
as inadmissible of three
in evidence kilos of
the marijuana
found in the possession of the accused as a product of an illegal search since it
was not an incident to a lawful arrest. Emphatically, the Supreme Court
declared that the accused was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so.
He was merely descending the gangplank of the ship and there was no
outward indication that called for his arrest. To all appearances, he was like any
of the other
216 CRIMINALPROCEDURE:
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passengers innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he suddenly
became a suspect and so subject to apprehension. The court added that from
the information received by the officers, they could have obtained a warrant
since they had at least two days to apply for the same but the officers made no
efforts to comply with the bill of rights. They chose to ignore the law.
Then too, in , the conviction by the trial
People v. Molina, 352 SCRA 174
court was reversed and set aside when the Supreme Court declared as invalid
an arrest made merely on the basis of reliable information that the persons
arrested were carrying marijuana. The accused were arrested while inside a
pedicab despite the absence of any outward indications of a crime being
committed.
Similarly, in the Supreme
Malacat v. Court of Appeals, 283 SCRA 159,
Court declared that a warrantless arrest cannot be justified where no crime is
being committed at the time of the arrest because no crime may be inferred
from the fact that the eyes of the person arrested were "moving fast" and
"looking at every person" passing by.
4. A classic case that illustrates an invalid arrest and a subsequent illegal
search and seizure People
is v. Mengote, 210 SCRA 174. The issue on the
legality of the arrest, search and seizure stemmed from a telephone call to the
police from an alleged informer that suspicious looking men were at a street

corner in Tondo shortly before noon. The police operatives dispatched to the
place saw three men one of whom who turned out to be Mengote, was
"looking from side" to side clutching his abdomen. The operatives approached
the three men and introduced themselves as policemen. Two of them
accordingly tried to run away but the attempt was foiled. The search yielded a
revolver in the possession of Mengote and a fan knife in the pocket of another.
Mengote contends that the revolver should not have been admitted in
evidence because its seizure was a product of an illegal search and made not
as an incident to a lawful arrest.
CHAPTER V 217
ARREST, SEARCH AND SEIZURE

Speaking through Justice Isagani A. Cruz, the Court ruled that the
requirements of a warrantless arrest were not complied with. There was no
offense which could have been suggested by the acts of Mengote of looking
from side to side while holding his abdomen. Observed the Court: "These are
certainly not sinister acts. * * * He was not skulking in the shadows but walking

in the clear light of day. There was nothing clandestine about his being on that
street at that busy hour in the blaze of the noonday sun. * * * By no stretch of
the imagination could it have been inferred from these acts that an offense had
just been committed, or was at least being attempted in their presence."
5. A much later case
People v. Laguio, Jr., G.R. No. 128587, March 16,
2007, and which drew much from the ruling in
Aminnudin likewise aptly
illustrates the application of the doctrine. In this case, two men were arrested
while they were about to hand over a bag of to a policer officer.
shabu
Questioned, the arrested men told the officers that they knew of a scheduled
delivery ofshabu by their employer, WW early the following morning and that
he could be found at a certain apartment building in Malate, Manila. The police
operatives decided to look for WW to shed light on the illegal drug activities of
his alleged employees and proceeded to the location of the apartment and
placed the same under surveillance.
When WW came out of the apartment towards a parked car, two other
police officers approached him, introduced themselves to him as police

officers, asked his name and, upon hearing that he was WW, immediately
frisked him and asked him to open the back compartment of the car. When
frisked, there was found inside the front right pocket of WW an unlicensed
pistol with live ammunitions. At the same time, the other members of the
operatives searched the car and found inside it were the following items: (a)
transparent plastic bags with
shabu; (b) cash in the amount of P650,000.00; (c)
electronic and mechanical scales; and (d) another unlicensed pistol with
magazine. Then and there, WW resisted the warrantless arrest and search.
218 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

The Supreme Court, in very lucid terms, declared that the facts and
circumstances surrounding the case did not manifest any suspicious behavior
on the part of WW that would reasonably invite the attention of the police. He
was merely walking from the apartment and was about to enter a parked car
when the police operatives arrested him, frisked and searched his person and
commanded him to open the compartment of the car. He was not committing
any visible offense then. Therefore, there can be no valid warrantless in arrest
flagrante delicto under paragraph (a) of Section 5. It is settled, said the Court
that reliable information alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers, is not
sufficient to constitute probable cause that would justify an
in flagrante
delicto arrest(Citing People v. Binad Sy Chua, 444 Phil 757 and People v.
Molina, 352 SCRA 174).
What is clearly established from the testimonies of the arresting officers
said the Court, is that WW was arrested mainly on the information that he was
the employer of the two men who were previously arrested and charged for
illegal transport shabu.
of They did not in fact identify WW to be their source of
the shabu when they were caught with it
in flagrante Upon the duo's
delicto.
declaration that there will be a delivery
shabuof on the early morning of the
following day and that WW may be found in an apartment building in Malate,
the arresting officers conducted what they termed was a "surveillance"
operation in front of said apartment, hoping to find a person who will match
the description of WW, the employer of the arrested men.
The conclusion of the trial court that the warrantless arrest was illegal
and thatipso jure, the warrantless search incidental to the illegal arrest is
likewise unlawful, was sustained by the Supreme Court.
6. Warrantless arrests were upheld in some cases. The much earlier case
of People v. Anita Claudio, 160 SCRA 646, is an example of a warrantless
arrest made under thein flagrante delictoexception. Here the accused who
was carrying a woven
CHAPTER V 219
ARREST, SEARCH AND SEIZURE

buri-like plastic bag which appeared to contain camote tops, boarded a bus
bound for the province. Instead of placing the bag by her side, which is the
usual practice of a traveler, she placed the same on the back seat where a
trained anti- narcotics agent was seated. Since the act of the accused was
unusual for a traveler, the suspicion of the agent was aroused. Feeling that
something was unusual, the agent inserted his finger inside the bag where he
felt another plastic bag in the bottom from which emanated the smell of
marijuana. Right after she got off the bus, the agent arrested the accused.
7. Not all cases were however, decided in the mold of
Amminudin.
People v. Tangliben, 184 SCRA 220, is a case with facts which do not fall
squarely with the standards setAmminudin,
by because of the differences in
circumstances. In this case, two police officers together with a barangay tanod
were conducting surveillance operations in a bus station allegedly to check on
persons who may be "engaging in the traffic of dangerous drugs based on
information supplied by informers." They noticed a person carrying a red
travelling bag who "was acting suspiciously." When asked to open the bag, the
accused did so only after the officers identified themselves. Found in the bag
were marijuana leaves wrapped in plastic and weighing about one kilogram.
Upon these facts, it was ruled that there was a valid warrantless arrest and a
valid warrantless search. The Court pronounced
Tanglibento be different from
Aminnudin. In the latter, the "urgency" presented by
Tangliben were not
present. InTangliben, the Court found that the officers were faced by an
"on-the-spot" information which required them to act swiftly.
In People v. Maspil, G.R. No. 85177, August 20, 1990, because of
confidential reports from informers that two persons would be transporting a
large quantity of marijuana, officers set up a checkpoint in Benguet to monitor,
inspect and scrutinize vehicles bound for Baguio City. A couple of hours after
midnight, a jeepney was flagged down in the checkpoint. On board were the
persons identified by the informers who were also with the policemen manning
the checkpoint. When the sacks and tin cans inside the jeepney were opened,
220 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION

they contained what appeared to be marijuana leaves. The policemen then


placed the two accused under arrest. Again, the court distinguished
Maspil
from Aminnudin.In the latter, the officers were aware of the identity of the
accused, his planned criminal enterprise and the vessel he would be taking.
Further, inAminnudin, the Court found that the officers had sufficient time to
obtain a search warrant.Maspil,
In the officers had no exact description of the
vehicle of the accused, and no idea of the definite time of its arrival. The Court
explained that a jeepney on the road is not the same as a passenger boat the
route and time of arrival of which are more or less certain and which ordinarily
cannot deviate or alter its course or select another destination.
The hot pursuitexception (Bar 1997; 2004)
1. This exception found in Sec. 5(b) of Rule 113 which authorizes a
warrantless arrest provides:
"* * * When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts and circumstances that the
person to be arrested has committed it * * *."

2. The second instance of lawful warrantless arrest covered by


paragraph (b) cited above necessitates two stringent requirements before a
warrantless arrest can be effected: (1) an offense has just been committed;
and (2) the person making the arrest has personal knowledge of facts
(People
indicating that the person to be arrested has committed it v. Agojo,
Under this exception a warrantless arrest
G.R. No. 181318, April 16,2009).
made, one year after the offense was allegedly committed is an illegal arrest.
(Bar 1997; 2004)
3. This exception does not require the arresting officers to personally
witness the commission of the offense with their own eyes. Personal
knowledge of facts must be based on probable cause, which means an actual
belief or reasonable grounds of suspicion. The grounds are reasonable when
the suspicion that the person to be arrested is probably guilty of committing
the offense is based on actual facts,
i.e., supported
CHAPTER V 221
ARREST, SEARCH AND SEIZURE

by circumstances sufficiently strong in themselves to create the probable cause


of guilt of theperson to bearrested. A reasonable suspicion, theref
ore, must be
founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest (Abelita v. Doria, G.R. No. 170672, August 14,
2009).

In Abelita III v. Doria,the petitioner alleged that he was arrested based


merely on information relayed to the police officers about a shooting incident
and that they had, at the time of the arrest, no personal knowledge of the facts.
The Court found that as soon as the police received a phone call about a
shooting incident, a team was dispatched to investigate. The investigation
disclosed that a victim was wounded and that the witnesses tagged the
petitioner as the one involved and that he had just left the scene of the crime.
After tracking down the petitioner, he was invited to the police headquarters
but the petitioner who initially agreed sped off prompting the authorities to
give chase. The Court ruled that the petitioner's act of trying to get away,
coupled with the incident report which they investigated, is enough to raise a
reasonable suspicion on the part of the police authorities to the existence of a
probable cause.
4. A case decided long before Abelita III vividly illustrates the
application of the exception.People
In v. Acol, 232 SCRA 406, two robbers
divested the passengers of a jeepney of their belongings including the jacket of

one passenger. The passengers immediately sought the help of police officers
which formed a team to track down the suspects. One of the passengers who
went with the responding police officers, saw one of the robbers casually
walking in the same vicinity and wearing his jacket. The warrantless arrest of
the accused was sustained by the Court as well within hot the
pursuit
exception.
5. In Peoplev. Gerente, 219 SCRA 756,
the Valenzuela police station
received a report of a mauling incident which resulted in the death of the victim
who received a massive skull fracture caused by a hard and heavy object. Right
222 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

away the officers went to the crime scene and found a piece of wood with
blood stains, a hollow block and two pouches of marijuana. A witness told the
police that the accused was one of those who killed the victim. They proceeded
to the house of the accused and arrested him. The Court ruled that based on
their knowledge of the circumstances of the death of the victim and the report
of an eyewitness, in arresting the accused, the officers had personal knowledge
of facts leading them to believe that it was the accused who was one of the
perpetrators of the crime.

Method of arrest without a warrant


1. Arrest by an officer — When making an arrest without a warrant,
the officer shall inform the person to be arrested of his (a) authority, and (b)
the cause of his arrest.
This information need not be given (a) if the person to be arrested is
engaged in the commission of an offense, (b) is in the process of being pursued
immediately after its commission, (c) escapes or flees, or (d) forcibly resists
before the officer has the opportunity to so inform him, or (e) when the giving
of such information will imperil the arrest
(Sec. 8, Rule 113, Rules of Court).
The rules applicable to an arrest with a warrant also apply to an arrest without
a warrant. Hence, the officer may summon assistance to effect the arrest,
break into a building or an enclosure or break out from the same
(Sees. 11-12,
Rule 113).
2. Arrest by a private person — When a private person makes an
arrest, he shall inform the person to be arrested not of his authority to arrest,
but of hisintentionto surest him and the
cause of his arrest. This information
need not be given under the same conditions as when it is an officer who
makes the arrest The right to break into a
(Sec. 9, Rule 113, Rules of Court).
building or an enclosure specifically refers to an 'officer' and not to a private
person(Sec. 11, Rule 113, Rules of Court).
3. Where a warrantless arrest is made under
in the
flagranteand
hot pursuit exceptions, the person arrested without a warrant shall be
forthwith delivered to the nearest
CHAPTER V 223
ARREST, SEARCH AND SEIZURE

police station or jail (Bar 2007)


(Sec. 5, last paragraph, Rule 113).

Time of making an arrest


An arrest may be made on any day and at any time of the day or night
(Sec. 6, Rule 113, Rules of Court).

Rights of a person arrested (R.A. 7438)


1. The rights of a person arrested, detained or under custodial
investigation are spelled out by Republic Act No.7438. These rights are:
(a) The right to be assisted by counsel
all times
at (Sec. 2[a], RA.
7438);
(b) The right to remain silent
(Sec. 2[b], RA. 7438);
(c) The right to be informed of the above (Sec.
rights2[b], RA.
7438); and
(d) The right to be visited by the immediate members of his
family, by his counsel, or by any non-governmental organization, national
or international
(Sec. 2[f}, RA. 7438).
2. The counsel must be one who is independent and competent. He
shall be allowed to confer at all times with the person arrested, detained or
under custodial investigation. If such person cannot afford the services of his

own counsel,
competent and he must be counsel
independent provided byR.A.
(Sec. 2[b], the7438).
investigating officer with a
3. In the absence of a lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the investigating
officer in accordance with the provisions of Article 125 of the Revised Penal
Code (Sec. 3, RA. 7438).Also, any waiver of the provisions of Article 125 of the
Revised Penal Code, shall be in writing, and signed by the person arrested,
detained or under custodial investigation in the presence of his counsel,
otherwise the waiver shall be null and void and of no (Sec.
effect2[e], RA.
7348).(Bar 2004;2006)
224 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

4. Any extrajudicial confession made shall also be in writing and signed


by the person, detained or under custodial investigation in the presence of his
counsel, or in the latter's absence, upon a valid waiver, and in the presence of
any of the parents, older brothers and sisters, his spouse, the municipal mayor,
the municipal judge, district school supervisor, or priest or minister of the
gospel as chosen by him; otherwise such extrajudicial confession shall be
inadmissibl
e as evidence in anyproceeding (Bar 1996)
(Sec. 2[d], RA. 7438).

Custodial investigation; expanded concept


R.A. 7438 expanded the meaning of custodial investigation. Under Sec.
2(f) of the Act, custodial investigation shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the "inviting"
officer for any violation of law.

Penalties under R.A. 7438


R.A. 7438 provides penalties for its violations. For instance, any arresting
officer or investigating officer who fails to inform any person, arrested,
detained or under custodial investigation of his rights to remain silent and to
counsel, shall suffer a penalty consisting of a fine of six thousand pesos
(P6,000.00) or a penalty of imprisonment of not less than eight (8) years but
not more than ten (10) years, or both.
Any person who obstructs, prevents or prohibits any lawyer or any
member of the immediately family of a person arrested, detained or under
custodial investigation or those who under the law are entitled to visit such
person, shall suffer the penalty of imprisonment of not less than four (4) years
nor more than six (6)
years, and afine of fourthousand pesos (P4,000.
00)
(Sec.
4, RA. 7438).

Effect of an illegal arrest on jurisdiction of the


ourt
c
The legality of the arrest affects only the jurisdiction of the court over the
person of the accused. A waiver of an
CHAPTER V 225
ARREST, SEARCH AND SEIZURE

illegal warrantless arrest does not also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless(People
arrest v. Martinez, G.R.
No. 191366, December 13, 2010).

Effect of admission to bail on objections to an illegal arrest


An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued,
provided that he raises the objection before he enters his plea. The objection
shall be resolved by the court as early as practicable but not later than the start
of the trial of the case
(Sec. 26, Rule 114, Rules of Court).

Waiver of the illegality of the arrest; effectillegal


of arrest (Bar 2000; 2001)
1. A warrantless arrest is not a jurisdictional defect and any objection to it
is waived when the person arrested submits to arraignment without any
objection. If the appellants are questioning their arrest for the first time on
appeal, they are, therefore, deemed to have waived their right to the
constitutional protection against illegal arrests and searches
(People v.
Aminola, G.R. No. 178062, September 8,2010).
The established rule is that an accused may be estopped from assailing
the legality of his arrest if he failed to move for the quashing of the information
against him before his arraignment. Any objection involving the arrest or the

procedure
accused in be
must the made
court's
beforeacquisition of plea
he enters his jurisdiction
; otherwiseover
the the person
objection is of an
deemed waived (Zalameda v. People, G.R. No. 183656, September 4, 2009;
Sec. 26, Rule 114, Rules of Court).It has been ruled time and again that an
accused is estopped from assailing any irregularity with regard to his arrest if he
fails to raise this issue or to move for the quashal of the information against him
on this ground before his arraignment. Any objection involving the procedure
by which the court acquired jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the
226 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

objection is deemed waived


(People v. Tan, G.R. No. 191069, November
15,2010).
2. Since the legality of an arrest affects only the jurisdiction of the
court over the person of the accused, any defect in the arrest of the accused

may be deemed
trial court. It wascured wheninhe
also held voluntarily
a number of submits to the
cases that the illegal
jurisdiction
arrestofofthe
an
accused is not a sufficient cause for setting aside a valid judgment rendered
upon a sufficient complaint after a trial free from error; such arrest does not
negate the validity of the conviction of the accused
(People v. Alunday, G.R.
No. 181546, September 3,2008; Dolera v. People, G.R. No. 180693, Septem-
ber 4,2009).
Any irregularity attending the arrest of an accused, depriving the trial
court of jurisdiction over his or her person, should be raised in a motion to
quash at any time before entering her plea, and failure to timely raise this
objection amounts to a waiver of such irregularity, resulting in concomitant
submission to the trial court's jurisdiction over his or her person v.
(Eugenio
People, 549 SCRA 433, March 26,2008).
3. An accused is estopped from assailing the legality of his arrest if he
fails to raise this issue, or to move for the quashal of the information against
him on this ground, before arraignment. In a case, the appellant was already
arraigned, entered a plea of not guilty and actively participated in his trial. He
raised the issue of the irregularity of his arrest only during his appeal to the
Court of Appeals. He is therefore, deemed to have waived such alleged defect
by submitting himself to the jurisdiction of the court through his
counsel-assisted plea during the arraignment, by actively participating in the
trial, and by not raising the objection before his arraignment
People of( the
Philippines v. Nelson PalmayHangad, G.R. No. 189279, March 9, 2010;
Diamante v. People, G.R. No. 180992, September 4,2009; Zalameda v.
People, GH. No. 183656, September 4,2009; People v. Amper, G.R.
No.172708, May 5,2010).
4. The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary investigation
applies only if the
CHAPTER V 227
ARREST, SEARCH AND SEIZURE

accused voluntarily enters his plea and participates during trial, without
previously invoking his objections thereto. There must be clear and convincing
proof that the accused had an actual intention to relinquish his right to
question the existence of probable cause
(Jose Antonio C. Leviste v. Hon. Elmo
M. Alameda, et al., G.R. No. 182677, August 3, 2010; Borlongan v. Pena, G.R.

No. 143591, May 25,2010).


5. In one case, the petitioner claimed that his warrantless arrest is illegal.
However, nowhere in the records can it be found in which the petitioner
interposed objections to the irregularity of his arrest prior to his arraignment. It
has been consistently ruled that an accused is estopped from assailing any
irregular ity of his arrest if he
fails to raise this issue or move
to for the quashal of
the information against him on this ground before arraignment. Any objection
involving a warrant of arrest or the procedure by which the court acquired
jurisdiction over the person of the accused must be made before he enters his
plea; otherwise, the objection is deemed waived (Salvador Valdez Rebellion v.
People of the Philippines, G.R. No. 175700, July 5,2010).
In the above case, the records disclosed that the petitioner was duly
arraigned, entered a negative plea and actively participated during the trial.
Thus, he is deemed to have waived any perceived defect in his arrest and
effectively submitted himself to the jurisdiction of the court trying his case. At
any rate, the illegal arrest of an accused is not a sufficient cause for setting aside
a valid judgment rendered upon a sufficient complaint after a trial free from
error. It will not even negate the validity of the conviction of the accused
(Salvador Valdez Rebellion v. People of the Philippines, G.R. No. 175700, July
5,2010).

Persons not subject to arrest


1. Sec. 11, Article VI of the 1987 Constitution provides:
"A senator or member of the House of representatives shall, in all offenses
punishable by not more than six
228 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

years imprisonment, be privileged from arrest while the


Congress is in session * * *."

The privilege of a senator or a congressman will not apply when the


offense is punishable by imprisonment of more than six (6) years even if
Congress is in session
(People v. Jalosjos, G.R. No. 132875-76, February 3,
2000). Also, the privilege does not apply if Congress
not inissession(Sec. 11,
Art. VI, Philippine Constitution).
2. Under generally accepted principles of international law,
sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary,
ministers resident, and charge d'affaires are immune from the criminal
jurisdiction of the country of their assignment and are therefore immune from
arrest(II Hyde, International Law, 2nd Ed).
3. RA. 75 prohibits the arrest of duly accredited ambassadors, public
ministers of a foreign country, their duly registered domestics
(Sec. 4, RA. 75),
subject to the principle of reciprocity
(Sec. 7, RA. 75).

II. SEARCHES AND SEIZURES (RULE 126)

Nature of a search warrant (Bar 1994)


1. A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace officer,
commanding him to search for personal property described therein and bring
it before the court
(Sec. 1, Rule 126, Rules of Court).
2. A search warrant is not a criminal action nor does it represent a
commencement of a criminal prosecution even if it is entitled like a criminal
action. It is not a proceeding against a person but is solely for the discovery and
to get possession of personal property. It is a special and peculiar remedy,
drastic in nature, and made necessary because of public necessity. It resembles
in some respects with what is commonly known as
CHAPTER V 229
ARREST, SEARCH AND SEIZURE

John Doe proceedings


(United Laboratories, Inc. v. Isip, 461 SCRA 574 citing
Bevington v. United States, 35 F2d 5841929; State v. Keiffer, 187 NW164
1922).
A search warrant is a legal process which has been likened to a writ of
discovery employed by the state to procure relevant evidence of a crime. It is in
the nature of a criminal process restricted to cases of public prosecutions. A
search warrant is a police weapon, issued under the police (United
power
Laboratories, Inc. v. Isip, 461 SCRA 574 citing Lodyga v. State, 179
NE1641931; C.J.S. Searches and Seizures § 63).
It has no relation to a civil process. It is not a process for adjudicating civil
rights or maintaining mere private rights. It concerns the public at large as
distinguished from ordinary civil action involving the rights of private persons
and may only be applied for the furtherance of public prosecutions
(Ibid.; citing
State v. Derry, 56 NE 482 1908; Lodyga v. State, 179 NE 164 1931)
3. The power to issue search warrants is exclusively vested with the trial
judges in the exercise of their judicial functions (Skechers, USA v. Inter Pacific
Industrial Trading Corporation, 509 SCRA 395).

The Constitutional provision


1. Like an arrest, the laws and rules governing a search warrant is based

upon constitutional guarantees. The pertinent constitutional provision


provides:

"Sec. 2: The right of the people to be secure in their persons,


houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized"(Sec. 2, Article III, 1987 Constitution of the Philippines).
230 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

2. The following provision solidifies the constitutional prohibition against


unreasonable searches and seizures by providing for an exclusionary rule, thus:

"Any evidence obtained in violation of this or the preceding section shall


be inadmissible for any purpose in any proceeding
(Sec. 3, par. 2, Article III, 1987
Constitution of the Philippines).

Arrest distinguished from search and seizure


1. The rules on arrest are concerned with the seizure of a person. It
involves the taking of a person in custody. A search may follow an arrest but
the search must be incident to a lawful arrest.
The rules on searches and seizures cover a wider spectrum of matters on
the search of both persons and places and the seizure of things found therein.
2. A probable cause to arrest does not necessarily involve a probable
cause to search and vice versa. Probable cause to arrest involves a different
determination from probable cause to search. In order to determine probable
cause to arrest, the judge (not the prosecutor) must have sufficient facts in his
hands that would tend to show that a crime has been committed and that a
particular person committed it. Probable cause to search requires facts to
show that particular things connected with a crime are found in a specific loca-
tion.
3. The judge is not necessarily required to make a personal
examination before issuing a warrant of (Borlon-
arrest gan v. Pena, G.R. No.
143591, May 5, 2010,citingSoliven v. Makasiar, 167 SCRA 293).
The judge
must, before issuing the search warrant, personally examine the complainant
and the witnesses he may produce in determining probable cause
(Sec. 5, Rule
126, Rules of Court; Santos v. Pryce Gases, G.R. No. 165122, November
23,2007).
4. An arrest may be made on any day and at any time of the day or
night(Sec. 6, Rule 113, Rules of Court).search
A
CHAPTER V 231
ARREST, SEARCH AND SEIZURE

warrant is generally served in the day time, unless there be a


direction in the warrant that it may be served at any time of
the day or night
(Sec. 9, Rule 126, Rules of Court).

Definition of a search warrant under the Rules


A search warrant is an order in writing issued in the
name of the People of the Philippines, signed by a judge and
directed to a peace officer, commanding him to search for
personal property described therein and bring it before the
court(Sec. 1, Rule 126, Rules of Court).

Application for a search warrant," where to file


1. As a rule, an application for a search warrant shall
be filed before any court within whose
territorial jurisdiction
a crime was committed (Sec. 2[a], Rule 126, Rules of Court).
2. There are exceptions to the above general rule.
These are:
(a) The application may be made before any court
within thejudicial regionwhere the crime was commit-
ted if the place of the commission of the crime is known
(Sec. 2[b], Rule 126, Rules of Court).

(b) The application may also be filed before any


court within the
judicial regionwhere the warrant shall
be enforced(Sec. 2[b], Rule 126, Rules of Court).

Note: In both exceptions, filing in such courts re-


quires compelling reasons stated in the application.
(c) The application shall be madeonly in the court
where the criminal action is pending, if the criminal ac-
tion has already been filed
(Sec. 2, last paragraph, Rule
126, Rules of Court).

Search warrants involving heinous crimes and others


1. The above rules in Sec. 2 of Rule 126 of the Rules of
Court have been deemed modified by A.M. No. 99-20-09-SC
dated January 25, 2000, in cases involving heinous crimes,
232 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

illegal gambling, dangerous drugs and illegal possession of firearms.


Under the aforementioned issuance by the Supreme Court, the
following are authorized to act onapplication
all s for search warrants involving
any of the above crimes:
The Executive Judge and Vice Executive Judges of Regional Trial Courts of
Manila and Quezon City filed by the Philippine National Police (PNP), the
National Bureau of Investigation (NBI), the Presidential Anti-Organized Crime
Task Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF)
with the Regional Trial Courts of Manila and Quezon City.
The applications shall be personally endorsed by the Heads of said
agencies, for the search of places to be particularly described therein, and the
seizure of property or things as prescribed in the Rules of Court, and to issue
the warrants of arrest, if justified, which may be served in places outside the
territorial jurisdiction of said courts.
The authorized judges shall keep a special docket book listing the details
of the applications and the resultsthe
of searches and seizures made pursuant
to the warrants issued.
2. InSpouses Marimla v. People, G.R. No. 158467, October 16, 2009,
the petitioners filed a motion to quash search
the warrant and to suppress the
evidence illegally seized. It was contended among others, that the application
for search warrant was filed and the warrant was issued by the RTC of Manila
which is a court outside the territorial jurisdiction and judicial region of the
courts of Angeles City and Porac, Pampanga where the alleged crime was
committed. It was also argued that the application for search warrant was not
personally endorsed by the head of the NBI as required "AM.by No.
99-10-09-80."
The Supreme Court observed that the cases against petitioners involved
a violation of the Dangerous Drugs Law of 1972 (R.A. 6425). As such, the
application for search warrant may be filed by the NBI in the City of Manila and
the warrant
CHAPTER V 233
ARREST, SEARCH AND SEIZURE

issued may be served outside of Manila pursuant to "A.M. No. 99-10-09-SC."


The Court likewise held that as to the claim that the application for the warrant
was defective for not having been personally endorsed by the head of the NBI,
the Court held that "nothing in A.M. No. 99-10-09-SC prohibits" the head of the
NBI and of the other law enforcement agencies mentioned from delegating

their ministerial
Besides, duty of31,endorsing
under Section theBook
Chapter 6, application
IV of thetoAdministrative
their assistantCode
heads.
of
1987, an assistant head or other subordinate in every bureau may perform
such duties as may be specified by their superior or head, as long as it is not
inconsistent with law.

Ex parteapplication for a search warrant


An application for a search warrant is exheard
parte.It is neither a trial
nor a part of the trial. Action on these applications must be expedited for time
is of the essence. Great reliance has to be accorded by the judge to the
testimonies under oath of the complainant and the witnesses. (Chemise
Lacoste, S.A. v. Fernandez, 214 Phil. 332; Santos v. Pryce Gases, Inc., G.R. No.
165122, November 23,2007).

Property subject of a search warrant


1. The property subject of a search warrant is personal property, not
real property. A search warrant may be issued not onlysearch
for the
but also
for theseizureof the following:
(a) Personal property subject of the offense;
(b) Personal property stolen or embezzled and other proceeds,
or fruits of the offense; or
(c) Personal property used or intended to be used as a means
of committing an offense
(Sec. 3, Rule 126, Rules of Court).
2. The rule is, only the personal properties described in the search
warrant may be seized by the authorities. In v. Nunez, (G.R. No.
People
177148, June 30, 2009),Search Warrant No. 42 specifically authorized the
taking of methamphetamine
234 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

hydrochlorideshabu
( ) and paraphernalia(s) only. By the principle of
ejusdem
generis, the Court explained, where a statute describes things of a particular
class or kind accompanied by words of a generic character, the generic word
will usually be limited to things of a similar nature with those particularly
enumerated, unless there be something in the context of the statement which

would repel such


component, inference.
speakers, Certainly,
electric planer, the lady's
jigsaw, wallet,tester,
electric cash, grinder, camera,
saws, hammer,
drill, and bolo were not encompassed by the word paraphernalia as they bear
no relation to the use or manufacture of drugs. In seizing the said items then,
the police officers exercised their own discretion and determined for
themselves which items in appellant's residence they believed were "proceeds
of the crime" or "means of committing the offense." This, said the Court, is
absolutely impermissible.
In the same case, the Court declared:
"The purpose of the constitutional requirement that the articles to
be seized be particularly described in the warrant is to limit the things to
be taken to those, and only those particularly described in the search
warrant— to leave the officers of the law with no discretion regarding
A search warrant is not a sweeping
what articles they should seize.
authority empowering a raiding party to undertake a fishing expedition
to confiscate any and all kinds of evidence or articles relating to a crime.
Accordingly, the objects taken which were not specified in the search
warrant should be restored to appellant.

Requisites for the issuance of a search warrant


1. The following are the requisites for a search warrant under the Rules
of Court:
(a) There must be probable cause in connection with one
specific offense;
(b) The presence of probable cause is to be determined by the
judge personally;
CHAPTER V 235
ARREST, SEARCH AND SEIZURE

(c) The determination by the judge must be made after an


examination under oath or affirmation of the complainant and the
witnesses he may produce;
(d) The warrant must specifically describe the place to be
searched and the things to be seized which may be anywhere in the
Philippines(Sec. 4, Rule 126, Rules of Court; Santos v. Pryce Gases, G.R.
No. 165122, November 23,2007; People v. Tuan, G.R. No. 176066, Au-
gust 11,2010).
2. The absence of the following requisites for a search warrant's
validity, will cause its downright nullification: (1) it must be issued upon
probable cause; (2) the probable cause must be determined by the judge
himself and not by the applicant or any other person; (3) in the determination
of probable cause, the judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may produce; and (4) the warrant
issued must particularly describe the place to be searched and persons or
things to be seized
(Santos v. Pryce Gases, Inc., G.R. No. 165122, November
23,2007).
3. Inherent in the court's power to issue search warrants is the power
to quash warrants already issued. After a judge has issued a warrant, he is not
precluded to subsequently quash the same, if he finds upon re-evaluation of
the evidence that no probable cause (Manly
exists Sportwear Manufacturing,
Inc. v. Dadodette Enterprises, 470 SCRA 384; Skechers, USA, Inc. v. Inter
Pacific Industrial Trading Corporation, 509 SCRA 395).
Probable cause in search warrants
A search warrant can be issued only upon a finding of probable
cause. Probable cause for search warrant means such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in connection with
the offense are in the place to be searched
(Kho v. Lanzanas, 489 SCRA 445;
Roan v. Gonzales, 145 SCRA 687).
The facts and circumstances being referred thereto pertain to
facts, data or information personally known to the
236 CRIMINALPROCEDURE:
THE BAR LECTURESSERIES
UPDATED EDITION

applicant and the witnesses he may present. The applicant or his witnesses
must have personal knowledge of the circumstances surrounding the
commission of the offense being complained of. "Reliable information'' is
insufficient. Mere affidavits are not enough, and the judge must depose in
writing the complainant and his witnesses
(Yao, Sr. v. People, 525 SCRA
108)
because in the determination of probable cause, the court must resolve
whether or not an offense exists to justify the issuance of the search warrant
(Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA
395).
Probable cause does not mean actual and positive cause, nor does it
import absolute certainty. The determination of the existence of probable
cause is not concerned with the question of whether the offense charged has
been or is being committed in fact, or whether the accused is guilty or
innocent, but only whether the affiant has reasonable grounds for his belief.
The requirement is less than certainty of proof, but more than suspicion or
possibility(Kho v. Lanzanas, 489 SCRA 445).
3. There is no general formula or fixed rule for the determination of
probable cause since the same must be decided in light of the conditions
obtaining in given situations and its existence depends to a large degree upon
the findings or opinion of the judge conducting the examination
(Skechers,
USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA It395).
is
presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrate's determination of a probable cause for
the issuance of a search warrant is. paid with great deference by a reviewing
court, as long as there was substantial basis for that determination
(People v.
Mamaril, G.R. No. 171980, October 6,2010).
Although the term "probable cause" has been said to have a
well-defined meaning under the law, the term is exceedingly difficult to define
with any degree of precision and one which would cover every state of facts
which may arise. As to what acts constitute probable cause, there is no exact
test(Kho v. Lanzanas, 489 SCRA 445).
The question whether or not probable
cause exists is one which must be decided in the light
CHAPTER V 237
ARREST, SEARCH AND SEIZURE

of the conditions obtaining in given situations


(Central Bank v. Morfe, 20 SCRA
507).
4. One case gives a reminder by declaring that 'probable cause' is a
flexible, common sense standard. It merely requires that the facts available to
the officer would warrant a man of reasonable caution and belief that certain
items may be contraband or stolen property or useful as evidence of a crime. It
does not require proof that such belief be correct or more likely than true. A
practical, non-traditional probability that incriminating evidence is involved is all
that is required
(United Laboratories, Inc. v. Isip, 461 SCRA 574, citing Texas v.
Brown, 460 U.S. 730,103 S. Ct. 15351983).
5. Since probable cause is dependent largely on the opinion and
findings of the judge who conducted the examination and who had the
opportunity to question the applicant and his witnesses, the findings of the
judge deserves great weight. The reviewing court can overturn such findings
only upon proof that the judge disregarded the facts before him or ignored the
clear dictates of reason
(Yao, Sr. v. People, G.R. No. 168306, June 19, 2007).
However, the probable cause must also be shown to be within the personal
knowledge of the complainant or the witnesses he may produce and not based
on mere hearsay. In determining its existence, the examining magistrate must
make a probing and not merely routine proorforma examination of the
complainant and the witnesses (Nola v. Barroso, Jr., 408 SCRA 529; Betoy, Sr.
v. Coliflores, 483 SCRA 435).
In determining probable cause, the oath required must refer to the truth
of the facts within the personal knowledge of the applicant or his witnesses,
because the purpose thereof is to convince the magistrate, not the individual
making the affidavit and seeking the issuance of the warrant of the existence of
probable cause (Kho v. Lanzanas, 489 SCRA 445).
6. In a case, the trial court retracted its earlier finding of probable
cause because the seized items were accordingly incomplete or insufficient to
charge petitioner with a criminal offense, thus, negating its previous
determination of probable
238 CRIMINALPROCEDURE:THE BAR LECTURESSERIES
UPDATED EDITION

cause. The Court disagreed because in quashing the search warrant, it would
appear that the trial court had raised the standard of probable cause to
whether there was sufficient cause to hold petitioner for trial. In so doing, the
trial court committed grave abuse of discretion.
Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discrete and prudent man to
believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched. A finding
of probable cause needs only to rest on evidence showing that, more likely
than not, a crime has been committed and that it was committed by the
accused. Probable cause demands more than bare suspicion; it requires less
than evidence which would justify conviction. The existence depends to a large
degree upon the finding or opinion of the judge conducting the examination.
However, the findings of the judge should not disregard the facts before him
nor run counter to the clear dictates of reason
(Santos v. Pryce Gases, Inc.,
G.R. No. 165122, November 23,2007).

Probable cause to arrest and probable cause to search


A probable cause to arrest does not necessarily involve a probable
cause to search and vice versa. Probable cause to arrest involves a different
determination from probable cause to search. In order to determine probable
cause to arrest, the judge (not the prosecutor) must have sufficient facts in his
hands that would tend to show that a crime has been committed and that a
particular person committed it. Probable cause to search requires facts to
show that particular things connected with a crime are found in a specific
location.
expounds:
Webb v. De Leon, 247 SCRA 653
. .each requires a showing of probabilities as to somewhat different
facts and circumstances, and thus one can exist without the other. In search cases,
two conclusions must be supported by substantial evidence; that the items
sought are in fact sizeable by virtue of being
CHAPTER V 239
ARREST, SEARCH AND SEIZURE

connected to criminal activity, and that the items will be


found in the place to be searched. It is not also necessary
that a particular person be implicated. By comparison, in
arrest cases there must be probable cause that a crime
was committed and that the person to be arrested has

committed it, which of course can exist without any show-


ing that evidence of the crime will be found at the prem-
ises under a person's control. Worthy of note, our Rules
of Court do not provide for a similar procedure to be fol-
lowed in the issuance of a warrant of arrest and search
warrants..."

How the examination shall beonducted


c by the judge
1. Aside from the requirements mandated by Sec.
4 of Rule 126, the rule requires the judge to comply with a
specific procedure in the conduct of the examination of the
complainant and the witnesses he may produce. The required
proce