CRIMINAL PROCEDURE A.

JURISDICTION OVER THE SUBJECT MATTER

I. BASIC CONCEPTS How conferred:

CONCEPT OF CRIMINAL PROCEDURE:
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).
Jurisdiction over the subject matter is conferred by law. The rule is
that in order to ascertain whether a court has jurisdiction or not, the
provisions of law shall be inquired into.
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).

LIBERAL INTERPRETATION OF THE RULES How determined:

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).
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)
(a) allegation in the complaint
(b) By law
(c) Penalty imposed
TEST: In criminal cases, the jurisdiction of the court is determined by
the averments of the complaint or Information, in relation to the law
prevailing at the time of the filing of the complaint or Information,
and the penalty provided by law for the crime charged at the time of
its commission. (Asistio vs. People)
Jurisdiction cannot be fixed by the will of the parties nor can it be
acquired or diminished by any act of the parties.

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;
(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.
PARTIES IN A CRIMINAL CASE:
(a) state, through prosecutor;
(b) accused; and
(c) private victim.
REQUISITES FOR THE EXERCISE OF CRIMINAL JURISDICTION
A reading of jurisprudence and treatises on the matter discloses the
following basic requisites before a court can acquire jurisdiction over
criminal cases (Cruz 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 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.
Statute applicable to a criminal action
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. Lagon)
Doctrine of adherence of Jurisdiction or continuing jurisdiction –
Once a court acquires jurisdiction, it may not be ousted from the case
by any subsequent events, such as a new legislation placing such
proceedings under the jurisdiction of another tribunal.
XPN:
(a) Expression provision in the statute;
(b) Statute is clearly intended to apply to actions pending
before its enactment.
Raising the issue of jurisdiction for the first time in the SC

Jurisdiction over the subject matter versus jurisdiction over the
person of the accused versus jurisdiction over the territory
SUBJECT MATTER PERSON
Jurisdiction over the subject Jurisdiction over the person of
matter refers to the authority the accused refers to the
of the court to hear and authority of the court, not over
determine a particular criminal the subject matter of the
case. criminal litigation, but over the
person charged.
Mandates that the offense is
one which the court is by law This kind of jurisdiction requires
authorized to take cognizance that "the person charged with
of. (Antiporda, Jr. v. the offense must have been
Garchitorena) brought in to its forum for trial,
forcibly by warrant of arrest or
upon his voluntary submission
to the court (Antiporda v.
Garchitorena)
VENUE
The offense should have been committed or any one of its
essential ingredients should have taken place within the territorial
jurisdiction of the court.
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 considered motu proprio by the court at any stage of the
proceedings or on appeal.
XPN:
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)
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)
 B. JURISDICTION OVER THE PERSON OF THE ACCUSED
How conferred; how determined:
It is conferred upon the court either by the voluntary appearance or
surrender of the accused, or by his arrest to answer for the crime
charged.
GR: seeking affirmative relief is deemed to be a submission to the
jurisdiction of the court.
Examples of Affirmative Reliefs:
a. filing a motion to quash
b. appearing for arraignment
c. participating in the trial or by giving 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 a bond (Cojuangco, 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)
XPN: 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)
C. JURISDICTION OVER THE TERRITORY
Territorial jurisdiction refers to the limits of the geographical
boundaries of a place within which a court has jurisdiction to act
judicially and outside of which its judicial acts are null and void.
How determined:
(a) Where the offense was committed
(b) Where any of its essential ingredients occurred.
Venue is a jurisdictional matter. The court cannot exercise jurisdiction
over a person charged with an offense committed outside its limited
territory (Riano, 2016).
XPNs:
1. An offense was committed on a railroad train, in an aircraft,
or in any other public or private vehicle in the course of trip
– The criminal action may be instituted and tried in the
court of any municipality or territory where such train,
aircraft or other vehicle passed during such trip, including
the place of departure and arrival [Sec. 15 (b), Rule 110];
2. Where the offense is committed on board a vessel on its
voyage – The criminal action may be instituted and tried in
the proper court of the first port of entry or of any
municipality or territory through which the vessel passed
during such voyage subject to the generally accepted
principles of international law [Sec. 15(c), Rule 110];
3. Felonies under Art. 2 of the RPC – Shall be cognizable by the
proper court where the criminal action was first filed [Sec.
15(d), Rule 110];
4. Continuous or transitory crimes – Such offenses may be
tried by the court of any jurisdiction wherever the offender
may be found, but the complainant should allege that the
offense was committed within the jurisdiction of the court;
5. Piracy – The venue of piracy, unlike all other crimes, has no
territorial limits. It is triable anywhere;
6. Libel – The action may be instituted at the election of the
offended or suing party in the municipality or city where:
a. the libelous article is printed and first published;
b. If one of the offended parties is a private
individual, where said private individual actually
resides at the time of the commission of the
offense; or
c. If the offended party is a public official, where the
latter holds office at the time of the commission
of the offense. (Macasaet vs. People)
7. BP 22 cases – The criminal action shall be filed at the place
where the check was drawn, issued, delivered, or
dishonored. In case of crossed check, the place of the
depositary or the collecting bank.
8. Perjury – The criminal action may be instituted at the place
where the testimony under oath is given or where the
statement is submitted, since both are material ingredients
of the crime committed (Union Bank vs. People, G.R. No.
192562, February 28, 2012);
9. Violation of Sec. 9 of Migrant Worker and Oversees Filipino
Act of 1995 – It shall be filed not only in RTC where the
offense was committed but it may also be filed where the
offended party actually resides at the time of the
commission of the offense. The first court to acquire
jurisdiction excludes others; 10. Article 315(2)(d) – It may
be instituted at the place where the deceit or damage may
arise.
10. 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).
11. Where the case is cognizable by the Sandiganbayan, 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 originating
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.
INJUNCTION TO RESTRAIN CRIMINAL PROSECUTION
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. To prevent the use of the strong arm of the law in an
oppressive and vindictive manner;
2. To afford adequate protection to constitutional rights;
3. For the orderly administration of justice;
4. To avoid multiplicity of actions;
5. In proper cases, because the statute relied upon is
unconstitutional, or was held invalid;
6. When the acts of the officer are without or in excess of
authority;
7. When the court has no jurisdiction over the offense;
8. When there is a prejudicial question which is sub judice;
9. Where the prosecution is under an invalid law, ordinance or
regulation;
10. When double jeopardy is clearly apparent;
11. Where it is a case of persecution rather than prosecution;
12. Where the charges are manifestly false and motivated by
lust for vengeance; and
13. Where there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
MANDAMUS TO COMPEL PROSECUTION
Mandamus is 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)
Prohibited pleadings, motions and petitions in summary procedure
(Bar 2004); civil and criminal cases
(a) 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;
(b) Motion for bill of particulars;
(c) Motion for new trial, or for consideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
(Bar 2004)
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l) Interventions (Sec. 19,1991 Rule on Summary
Procedure)
II. MTC, RTC, SB, CTA, CA, SC
A. Municipal Trial Court, Municipal Circuit Trial Court,
Municipal Trial Court in Cities and Metropolitan Trial Court
(MTC)
Except in cases falling within the exclusive jurisdiction of the RTC
and of the Sandiganbayan:
1. Exclusive original jurisdiction over all violations of city or
municipal ordinances committed within their respective
territorial jurisdiction [Sec. 32(1), B.P. 129 as amended by
R.A. 7691];
2. Exclusive original jurisdiction over all offenses punishable
with imprisonment not exceeding 6 years irrespective of the
amount of fine, and regardless of other imposable or
accessory penalties [Sec. 32(2), B.P. 129 as amended by R.A.
7691];
3. Exclusive original jurisdiction over offenses involving
damage to property through criminal negligence [Sec.
32(2), B.P. 129 as amended by R.A. 7691];
4. Summary procedure in certain cases; and NOTE: The MTCs
shall have jurisdiction over the following cases falling within
their jurisdiction:
a. Violations of traffic laws, rules and regulations:
b. Violations of the rental law;
c. B.P. 22 cases;
d. Violations of municipal and city ordinances;
e. All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months, or a fine not
exceeding P1, 000.00, or both; and
f. Offenses involving damage to property through
criminal negligence where the imposable penalty does
not exceed P10, 000.00 [Sec 1 (b), The 1991 Rules on
Summary Procedure].
5. Special jurisdiction to decide on applications for bail in
the absence of all RTC judges in a province or city (Sec 35,
B.P. 129 as amended by R.A. 7691).
B. Regional Trial Court
1. Exclusive original jurisdiction in all criminal cases not
within the exclusive jurisdiction of any court, tribunal or
body, except those now falling under the exclusive and
concurrent jurisdiction of the Sandiganbayan (Sec 20, B.P.
129, as amended by R.A. 7691);
2. Original jurisdiction in the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus, and
injunction, enforceable in any part of their respective
regions [Sec 21(1), B.P. 129, as amended by R.A. 7691]
3. Appellate jurisdiction over all cases decided by the MTC
within its territorial jurisdiction (Sec. 22, B.P. 129, as
amended by R.A. 7691);
Special jurisdiction of certain branches to handle exclusively
criminal cases as may be determined by the Supreme Court
(Sec. 23, B.P. 129, as amended by R.A. 7691); and
5. Jurisdiction over criminal cases under specific laws such
as:
a. Criminal and civil aspects of written defamation
(Art. 360, RPC);
b. Designated special courts over cases in
violation of the Comprehensive Dangerous Drugs
Act of 2002 (Sec 90, R.A. 9165);
c. Violation of intellectual property rights (A.M.
No. 03-03-03-SC); and d. All cases on money
laundering (Sec. 5, R.A. 9160).
C. Sandiganbayan (P.D. 1606, as amended by R.A. 7975 and
R.A. 8249)
1. Violations of R.A. 3019, R.A. 1379, and Chapter II, Sec. 2,
Title VII, Book II of the RPC, where one or more of the
accused are officials occupying the following positions in
the government at the time of the commission of the
offense:
a. Officials of the executive branch occupying the positions
of regional director and higher, otherwise classified as
Grade “27” and higher of R.A. 6758;
i. Provincial governors, vice-governors, members
of the sanggunian panlalawigan and provincial
treasurers, assessors, engineers and other
provincial departmental heads;
ii. City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurer,
assessors, engineers and the city department
heads;
iii. Officials of the diplomatic service occupying
the position of consul and higher;
iv. Philippine army and air force colonels, naval
captain, and all officers of higher rank;
v. Officers of the Philippine National Police while
occupying the position of provincial director and
those holding the rank of senior superintendent
or higher;
vi. City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special prosecutor;
vii. Presidents, directors or trustees, or managers
of government-owned orcontrolled corporations,
state universities or educational institutions or
foundations;
b. Members of Congress and officials thereof classified as
Grade “27” and up under R.A. 6758;
i. Members of the judiciary without
prejudice to the provisions of the
Constitution;
ii. Chairmen and members of
Constitutional Commissions, without
prejudice to the provisions of the
Constitution; and
iii. iii. All other national and local officials
classified as Grade “27” and higher
under R.A. 6758.
2. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and
employees abovementioned in relation to their office;
3. Civil and criminal cases filed pursuant to and in
connection with E.O. Nos. 1, 2, 14 and 14-A; and
5. Appellate jurisdiction over final judgments, resolutions or
orders of trial courts in cases where none of the accused is
occupying position corresponding to salary grade “27” or
higher (Sec. 4, P.D. 1606 as amended and as amended
further by R.A. 8249).
Officials and employees with a salary grade of 27 or higher
If the position is enumerated under Sandiganbayan’s jurisdiction
and as long as the offense was committed relation to their office,
regardless of salary grade, Sandiganbayan has jurisdiction.
Likewise, if the position is classified as grade 26 and below, it may
still fall within the jurisdiction of the Sandiganbayan provided
they hold the positions enumerated in the law. An offense is
deemed to be committed in relation to the public office upon
showing of any of the following:
1. When such office is an element of the crime charged; or
2. When the offense charged is intimately connected with
the charge of the official functions of the accused.
Offenses committed in relation to the office
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 Sandiganbayan is without
jurisdiction over the case (Esteban v. Sandiganbayan, 453 SCRA 236;
People v. Montejo 108 Phil. 613).
RULE 110 – INSTITUTION OF CRIMINAL ACTION
I. INSTITUTION OF CRIMINAL ACTIONS
A. How Criminal actions are instituted
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).
Criminal actions are instituted by:
(a) Where preliminary investigation is required – filing the
complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation; or
(b) For all other offenses - filing the complaint or information
directly with the MTC and MCTC, or the complaint with the
office of the prosecutor (Sec. 1,Rule 110).
B. 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).
There is no direct filing of an information or complaint with the RTC
because its jurisdiction covers offenses which require preliminary
investigation.
There is likewise no direct filing with the MeTC because in Manila,
including other chartered cities, the complaint shall be filed with the
office of the prosecutor, unless otherwise provided by their charters.
In case of conflict between a city charter and a provision of the Rules
of Court, the former, being substantive law, prevails.
C. Rule on prescription for violations of special laws and
municipal ordinances
(a) Violation of municipal ordinance and/or those covered by
Rules on Summary Procedure -- the filing of the case with
the fiscal’s office does not interrupt the running of the
prescriptive period (Zaldivia vs. Reyes). It should be the
filing of the case before the court which will interrupt.
Prescription begins from the commission of the crime or
 from the discovery thereof and the institution of the judicial
proceedings for its investigation and punishment. Thus, it
is only interrupted only by institution of JUDICIAL
PROCEEDINGS.
(b) Violation of Special Laws – Do note apply Zaldivia Doctrine
here. The filing of the affidavit of complaint for preliminary
investigation with the proper office interrupts the
prescriptive period.
In People vs. Pangilinan the court ruled:
“There is no more distinction between cases under the RPC
and those covered by special laws with respect to the
interruption of the period of prescription. The ruling in
Zaldivia v. Reyes, Jr.18 is not controlling in special laws. In
Llenes v. Dicdican,19 Ingco, et al. v. Sandiganbayan,20
Brillante v. CA,21 and Sanrio Company Limited v. Lim,22
cases involving special laws, this Court held that the
institution of proceedings for preliminary investigation
against the accused interrupts the period of prescription.”
In sum, the prevailing rule is irrespective of whether the offense
charged is punishable by the RPC or by a special law, it is the filing of
the complaint or information in the office of the public prosecutor for
the purposes of preliminary investigation that interrupts the period
of prescription (Disini vs. SB).
D. Period of prescription is tolled even if the court is without
jurisdiction
The running of the period of prescription is interrupted with the filing
of the action even if the court in which the action was first filed is
without jurisdiction.
II. PROSECUTION OF CRIMINAL ACTION
A. WHO MUST PROSECUTE; WHO CONTROLS PROSECUTION?
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 action commenced either by a complaint or an information
(Sec. 5, Rule 110, Rules of Court)
Even if there is a private prosecutor, the criminal action is still
prosecuted under the direction and control of the public prosecutor.
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).
Hence, the offended party may not intervene in the prosecution 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.
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).
Representation of the People of the Phils. By the OSG in appeals
before the CA or the SC
It is only the OSG that may bring an appeal on the criminal aspect
representing the People.
XPN: All cases elevated to the SB and from the SB to the SC,
the Office of the Ombudsman, through its special
prosecutor, shall represent the People of the Philippines
except in cases filed pursuant to E.O Nos. 1,2,14, and 14A,
issued in 1986 (People vs. SB)
The private complainant or the offended party may, however, file an
appeal without the intervention of the OSG but only insofar as the
civil liability of the accused is concerned. He may also file a special
civil action for certiorari even without the intervention of the OSG,
but only to the end of preserving his interest in the civil aspect of the
case.
Therefore, the litmus Test for ascertaining the propriety of the
petition for certiorari filed by the petitioner is Whether or not the
petition refers to the civil aspect of the case.
Private Prosecutor to prosecute a case; when allowed
In the absence of the public prosecutor provided the following
requirements are present:
(a) Authorized to do so in writing given by either the Chief of
the Prosecution office or the Regional State Prosecutor
approved by the court
(b) Written authorization is given because the public
prosecutor has a heavy work Schule or there is a lack of
public prosecutors
B. WHO MAY FILE THEM, CRIMES THAT CANNOT BE
PROSECUTED DE OFFICIO
GR: All criminal actions initiated by complaint or information are filed
by the prosecutor.
XPNs: Offenses or crimes that cannot be prosecuted de officio. These
are crimes or offenses which cannot be prosecuted except on
complaint filed by the offended party or, if the offended party is a
minor, by the parents, grandparents or the guardian. These crimes
are:
1. Adultery and concubinage;
2. Seduction, abduction and acts of lasciviousness;
3. Criminal actions for defamation imputing the
abovementioned offenses (Sec. 5, Rule 110).
NOTE: These crimes are known as private crimes.
Effect of pardon on the criminal liability
The crimes of seduction, abduction and acts of lasciviousness cannot
be prosecuted if the offender has been expressly pardoned by any of
the persons authorized to file a complaint under Sec. 5 of Rule 110.
NOTE: In case where the offended party is a minor, the pardon to be
effective as to prevent prosecution of the accused must be given by
both parents and the offended party (U.S. v. Luna, G.R. No. 892,
September 11, 1902).
Effect of desistance of the offended party in private crimes
It does not bar the People from prosecuting the criminal action, but it
operates as a waiver of the right to pursue civil indemnity.
Effect of death of the offended party to the criminal action
(a) Prior to the filing of the case in court but after a complaint
was filed before the prosecutor - the death of the
complainant will not be sufficient justification for the
dismissal of the information (People v. Ilarde, G.R. No. L-
57288, April 30, 1984).
(b) During the pendency of the case - the death of the
complainant will not extinguish the criminal liability of the
accused whether total or partial (Donio-Teves v. Vamenta,
G.R. No. L-38308, December 26, 1984).
 III. INTERVENTION OF THE OFFENDED PARTY IN THE
PROSECUTION OF THE CRIMINAL ACTION
A fundamental principle in criminal law is the rule that "Every person
criminally liable for a felony is also civilly liable" (Article 100, Revised
Penal Code). Thus, generally, a person convicted of a crime is both
criminally and civilly liable.
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).
V. SUFFICIENCY OF THE COMPLAINT OR INFORMATION
Section 6 - Sufficiency of complaint or information
Complaint or Information, when sufficient; test of
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) 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)
Questioning the insufficiency of the complaint or information
GR: The sufficiency of an information may be assailed

IV. COMPLAINT AND INFORMATION XPN:

A. COMPLAINT An accused is deemed to have waived his right to assail the sufficiency
A complaint is a sworn written statement charging a person with an of the information when he voluntarily entered a plea when
offense, subscribed by the offended party, any peace officer, or other arraigned and participated in the trial.
public officer, charged with the enforcement of the law violated (Sec.
3, Rule 110, Rules of Court).
A complaint is: NOTE: Any defect in the complaint or information may be cured by
evidence introduced by the prosecution, EXCEPT:
(a) a statement charging a person with an offense.
(b) it must be written. (a) when the defect is jurisdictional
(c) It must be sworn -- the complaint is subscribed only by any (b) when the complaint or information does not charge any
of the persons specified in the rule, namely, the offended offense.
party, any peace officer, or other public officer charged with
the enforcement of the law violated. Objections as to form
Objections relating to the form of the complaint or information
In whose name and against whom filed cannot be made for the first time on appeal. The accused-appellant
The complaint is not filed in the name of a private person, natural or should have moved before arraignment either for a bill of particulars
juridical. It is filed in the name of the People of the Philippines and is or for the quashal of the information. If he failed, deemed waived.
filed against all persons who appear to be responsible for the offense
involved (Sec. 2, Rule 110, Rules of Court). Supposes a complaint is filed but it was not sworn to or signed, is it
valid
Appeals; when allowed
Only a formal defect. It can be cured. Generally, the signature is not
A private offended party may not appeal the dismissal of a criminal needed.
case or the acquittal of an accused because the aggrieved party is the
People of the Philippines. However, the offended party may appeal Section 7 - Name of the accused
the civil aspect of the case and may, thus, file a special civil action for
certiorari questioning the decision/action of the court on Criminal complaint or information filed in the name of the private
jurisdictional grounds. In so doing, the private offended party cannot complainant; effect of
bring the action in the name of the People of the Philippines but The defect is not fatal. The error will not produce any adverse effect
must prosecute the same in his own personal capacity. because what is important is the identity of the person of the
accused, not his name.
B. INFORMATION
An information is an accusation in writing charging a person with an According to the SC, the complaint is defective. It can be quashed but
offense subscribed by the prosecutor and filed with the court (Sec. 4, it is only a formal defect. In case it proceeds to trial, it should be
Rule 110, Rules of Court) corrected but it is not really a fatal mistake. It can be cured at any
stage of the action by amending the information or even if it is not
While an information is an accusation in writing, it is not required to cured, there is a valid judgment, you are found guilty, it shall not be
be "sworn" unlike a complaint. Only a public officer described by the voided merely because the title is defective. It will not invalidate the
Rules of Court as a "prosecutor" is authorized to subscribe to the proceedings.
information (Sec. 4, Rule, 110, Rules of Court).
Section 8 - Designation of the offense
COMPLAINT INFORMATION Nature and character of the crime; how determined
Who files (a) offended party; prepared and
(b) any peace officer; signed by the The title of the information or designation of the offense is not
(c) prosecutor; prosecutor controlling. It is the actual facts recited in the information that
(d) or any public officer determines the nature of the crime
charged with the
enforcement of the law. NOTE: Must allege the attendant qualifying and aggravating
Purpose filed in court is either for filed in court is only
circumstances
preliminary investigation or for trial
for trial
The qualifying and aggravating circumstances must be specified in the
Where filed Complaint may be filed in Always filed in information. They must not only be proven but they must also be
court or in the office of the court. alleged, otherwise, they should not be considered.
prosecutor

Section 9 – Cause of Accusation
The acts or omissions complained of as constituting the offense and
the qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a person of
common understanding to know what the offense is being charged
as well as the qualifying and aggravating circumstances
Purposes of requiring that every element must be alleged
(a) To enable the court to pronounce the proper judgment;
(b) To furnish the accused with such a description of the charge
as to enable him to make a defense; and
(c) As a protection against further prosecution for the same
cause
Effect when one or more elements of the offense have NOT been
alleged in the Information
The accused cannot be convicted of the offense charged, even if the
missing elements have been proved during the trial. Even the
accused’s plea of guilty to such defective information will not cure the
defect, nor justify his conviction of the offense charged.
Matter/s to be alleged if the crime is “committed in relation to his
office”
Mere allegation in the information that the offense was committed
by the accused public officer in relation to his office is not sufficient.
The phrase is merely “a conclusion of law,” not a factual averment
that would show close intimacy between the offense charged and the
discharge of the accused’s official duties. What is controlling is the
specific actual allegation in the information (Lacson v. Executive
Secretary).
Therefore, there must be an allegation of certain acts with are
intimately related to the offender’s office/position which paved way
for the commission of the crime.
Section 10 - Place of commission of the offense
GR: Need not be specific so long it is within the territorial jurisdiction
XPN: when the place of the commission of the crime constitutes an
essential element of the crime charged
Example:
TRESPASS TO DWELLING. You must specify that
the crime was committed by entering into the
dwelling of somebody. You cannot just say that he
committed it in Makati City.
Section 11 - Date of the commission of the offense
GR: 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
XPN: when the date of commission is a material element of the
offense.
Limitation: The offense may thus be alleged to have been committed
on a date as near as possible to the actual date of its commission.
Example:
When you say December 2000 and then the crime pala was
committed in 1995, ay sobra na yan! That is too much. Five
(5) years is no longer covered by “on or about.” That is
already violative of Section 11. A variance of several years,
or the statement of the time of the commission of the
offense which is so general as to span a number of years
has been held to be fatally defective. (Rocaberte vs.
People, 193 SCRA 192)
What then is your remedy?
The remedy against an indictment that fails to allege the time of the
commission of the offense with sufficient definiteness is a motion for
a bill of particulars
Section 12 - Name of the offended party
Why Required
(a) There is a private victim
(b) So that the court will know to whom civil liability will be
awarded to
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
If you do not know who is the victim of theft or robbery, it is enough
that you describe the property in the information.
EXAMPLE: A thief, nahuli and he was found in possession of
stolen goods and he admitted he stole. Kanino? “Ewan ko.
Basta gi-snatch ko man lang ito.” Can the police file a case?
YES. You just describe the property in the information even
if we don’t know the owner because you commit theft when
you take personal property belonging to another with
intent to gain. What is important is that, it belongs to
another.
Section 13 - Duplicity of the offense
The complaint or information must charge only one offense. It cannot
charge 2 or more offenses. If it does, it is called duplicitous complaint
or information.
GR: A complaint or information must charge only one offense.
XPN: When the law prescribes a single punishment for various
offenses (Sec. 13, Rule 110):
(a) Complex crimes;
(b) Special complex crimes
(c) Continuous crimes or delicto continuado
(d) Crimes susceptible of being committed in various modes;
(e) Crimes of which another offense is an ingredient.
NOTE: Should there be duplicity of offense in the information, the
accused must move for the quashal of the same before arraignment
(Sec. 3, Rule 117). Otherwise, he is deemed to have waived the
objection and may be found guilty of as many offenses as those
charged and proved during the trial (Sec. 3, Rule 120).
Section 14 - Amendment or substitution.
A complaint or information may be amended, in form or in substance,
without leave of court and when it can be done without causing
prejudice to the rights of the accused.
Remember:
In criminal procedure the rule is: for as long as the accused has not
yet entered his plea – wala pang arraignment, the accused has not yet
pleaded guilty or not guilty – the information can be amended either
in substance or in form.
What happens if the accused has already entered his plea? Can the
information still be amended by the prosecution?
As to FORM – Yes, as a matter of judicial discretion. Kailangan merong
permission (w/ leave of court).
As to SUBSTANCE – Never! Bawal! 100% prohibited.
Test:
An amendment which merely states with additional precision
something which is already contained in the original information, and
which, therefore, adds nothing essential for conviction for the crime
charged is an amendment to form that can be made at any time.
 Amendment Substitution Amendment in the Information which changes the nature of the
May involve either formal or Involves substantial change crime after arraignment
substantial changes. from the original charge.
GR: The prosecutor can no longer amend the information after
arraignment as it would prejudice the substantial rights of the
Amendment before the It must be with leave of accused.
plea is entered can be court as the original
effected without leave of information has to be
XPN: When a fact supervenes which changes the nature of the crime
court. dismissed.
charged in the information or upgrades it to a higher crime, the
An amendment as to form Substitution of the prosecutor, with leave of court, may amend the information to allege
will not require another information entails such supervening fact and upgrade the crime charged to the higher
preliminary investigation another preliminary crime brought about by such supervening fact.
and retaking of plea of the investigation and plea to
accused. the new information. If it appears any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
An amended information Requires or presupposes
complaint or information upon the filing of a new one charging the
refers to the same offense that the new information
charged in the original involves a different offense proper offense, provided the accused shall not be placed in double
information or to an which does not include or jeopardy (Sec. 14, Rule 110).
offense which necessarily is not necessarily included
includes or is necessarily in the original charge; Limitations on substitution
included in the original hence the accused cannot (a) No judgment has yet been rendered;
charge, hence substantial claim double jeopardy. (b) The accused cannot be convicted of the offense charged or
amendments to the
of any other offense necessarily included therein; an
information after the plea
(c) The accused would not be placed in double jeopardy
has been taken cannot be
made over the objection of
the accused, for if the Section 15 - Place where action is to be instituted
original would be
withdrawn, the accused Why does the law prescribes that the case be filed or tried in the
could invoke double place where the crime was committed?
jeopardy. (a) The interest of the public requires that, to secure the best
results and effects in the punishment of crimes, it is
necessary to prosecute and punish the criminal in the very
KIND OF AMENDMENT HOW MADE place, as near as may be where he committed his crime
Before Plea (b) As to the interest of the accused, it would cause him great
1. Formal amendment; or Without leave of court inconvenience in looking for witnesses and other evidence
2. Substantial amendment. in another place.
Substantial amendment 1. Upon a motion by the
which: prosecutor;
The law says, the criminal case will be tried, where?
a. Downgrades the nature of 2. With notice to the accused;
(a) where the offense was committed; or
the offense charged; or and
b. Excludes any accused 3. With leave of court. (b) where any of the essential ingredients occurred.
from the complaint or
information Examples:
After Plea ESTAFA or MALVERSATION. The crime is continuing. It shall be
Formal amendment 1. With leave of court; and instituted in the place where the misappropriation was committed OR
2. Without causing in the place where the accused was to render his accounting.
prejudice to the rights
of the accused (Sec. 14, BP22 It is well-settled that violation of BP 22 cases is categorized as
Rule 110). transitory or continuing crimes, which means that the acts material
Substantial Amendment GR: Not allowed and essential thereto occur in one municipality or territory, while
XPN: If the amendment is some occur in another. A criminal case for violation of BP 22 may be
beneficial to the accused filed in any of the places where any of its elements occurred – in
(Riano, 2016 citing Ricarze v.
particular, the place where the check is drawn, issued, delivered, or
CA, 515 SCRA 302).
dishonored.
The amendment is substantial if the amendment will prejudice the
Section 16 - Intervention of the offended party in criminal action
rights of the accused. How do you determine whether the rights of
GR: The offended party has the right to intervene by counsel in the
the accused are prejudiced?
prosecution of the criminal action where the civil action for the
recovery of civil liability is instituted in the criminal action pursuant to
A: The test as to when the rights of an accused are prejudiced by the
Rule 111 (Sec. 16, Rule 110).
amendment of a complaint or information is when a defense under
XPNs:
the complaint or information, as it originally stood, would no longer
(a) no civil liability arises in favor of the offended party, e.g.
be available after the amendment is made, and when any evidence
sedition, rebellion, treason (crimes against national
the accused might have, would be inapplicable to the complaint or
security);
information as amended. (People vs. Montenegro, 159 SCRA 236)
(b) The offended party waived the right to civil indemnity;
Meaning, evidence which could help you in the first place will no
(c) The offended party had already instituted separate action;
longer help you after the amendment – that is prejudicial.
(d) The offended party reserved the right to institute it
separately.
NOTE: After arraignment, a substantial amendment is prohibited
except if the same is beneficial to the accused. Substantial
amendment after the plea has been taken cannot be made over the
objection of the accused, for if the original would be withdrawn, the
accused could invoke double jeopardy (Pacoy v. Cajical)

RULE 111 – PROSECUTION OF CIVIL ACTION
When a criminal action is instituted, the civil action for the recovery
of the civil liability arising from the offense charged shall be deemed
instituted with the criminal action (Sec. 1 [a], Rule 111, Rules of
Court). The reason for the implied institution of the criminal action is
the principle that every person criminally liable for a felony is also
civilly liable (Article 100, Revised Penal Code).
NOTE: Always keep in mind that the civil action must arise from the
offense charged.
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 enemy country, and crime against popular
representation (Cruz v. Mina, G.R. No. 154207, April 27,2007).
GR: The institution or filing of the criminal action includes the
institution therein of the civil action for recovery of civil liability arising
from the offense charged.
XPNs: When the offended party:
(a) Waives the civil action;
(b) Reserves his right to file a separate civil action; or
(c) Institutes a civil action prior to the criminal action (Sec. 1,
Rule 111).
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
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 initiatory pleading that gives rise to
the suit
Section 1 –
Period when reservation of the right to file civil action shall be made
The reservation of the right to institute separately the civil action shall
be made before the prosecution starts presenting the evidence, and
under circumstances affording the offended party a reasonable
opportunity to make the reservation [Sec.1 (2), Rule 111].
Instances when the reservation to file a separate civil action is NOT
allowed
(a) Criminal action for violation of BP 22 (Note: It
should be observed that 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.)
(b) A claim arising from an offense which is
cognizable by the Sandiganbayan; and
(c) Tax cases [RA9282, Sec.7(b)(1)]
May the offended party compromise the civil aspect of a crime
A: YES. Provided that it must be entered before or during the
litigation and not after final judgment.
WHEN A CIVIL ACTION MAY PROCEED INDEPENDENTLY
(a) Arising from breach of contract; and
(b) Independent civil actions or those based on Arts. 32, 33, 34
and Art. 2176 of the NCC or quasi-delict
NOTE: The failure to reserve the right to file the above enumerated
actions does not amount to a waiver to institute a separate civil
action: Recovery of civil liability under Articles 32, 33, 34 and 2176 of
the Civil Code may be prosecuted separately even without reservation
Consequences of the independent character of actions under
Articles 32, 33, 34 and 2176 of the Civil Code
(a) The right to bring the civil action shall proceed
independently of the criminal action (Sec. 3, Rule 111, Rules
of Court) and regardless of the results of the latter (Article
31, Civil Code of the Philippines). (Bar 2005)
(b) The quantum of evidence required is preponderance of
evidence (Sec. 3, Rule 111, Rules of Court).
(c) The right to bring the foregoing actions based on the Civil
Code need not be reserved in the criminal prosecution,
since they are not deemed included therein.
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.
Even if a civil action is filed separately, the ex delicto civil
liability in the criminal prosecution remains, and the
offended party may — subject to the control of the
prosecutor — still intervene in the criminal action, in order
to protect the remaining civil interest 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
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).
NOTE: The above rule has no application to independent civil actions
under Articles 32, 33, 34 and 2176 of the Civil Code.
Section 2 – When separate civil action is suspended
GR: If the civil action is instituted before the institution of the criminal
action, the pending civil action, in whatever stage it may be found,
shall be suspended until final judgment of the criminal action has
been rendered (Sec. 2, Rule 111).
XPNs:
(a) In cases of independent civil actions based on Arts. 32, 33,
34 and 2176 of the Civil Code; (proceeds independently)
(b) In cases where the civil action presents a prejudicial
question; and
(c) Where the civil action is not one intended to enforce the
civil liability arising from the offense.
Consolidation of civil action and criminal action
Before judgment on the merit is rendered in the civil action, the same
may, upon motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action (Sec. 2, Rule
111).
NOTE: In cases where the consolidation is given due course, the
evidence presented and admitted in the civil case shall be deemed
automatically reproduced in the criminal action without prejudice to
admission of additional evidence and right to cross examination (Sec.
2, Rule 111).
Counterclaim, cross-claim, third-party claim in a criminal action
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.
Rules on filing fees
Filing fees shall be paid when damages are being claimed by the
offended party.
(a) Actual damages
GR: No filing fee is required.
XPN: B.P. 22 cases, wherein the amount of the filing fees
shall be equivalent to the amount of the check involved.
(b) Liquidated, moral, nominal, temperate or exemplary
damages – The filing fee shall be based on the amount
alleged in the complaint or information [Sec.1(4), Rule 111].
Section 3 - When civil action may proceed independently (see
discussion on section 1)
Section 4 – Effect of Death of Accused or convict on civil action
If the accused died:
(a) After arraignment and during the pendency of the
criminal action
GR: The civil liability of the accused based on the
crime (civil liability ex delicto) is extinguished.
XPNs:
i. Independent civil action based on Arts. 32 33, 34
and 2176 of the Civil Code; and
ii. Civil liability predicated on other sources of
obligations, i.e. law, contract, and quasi-contract,
which are subsequently instituted.
(b) Before arraignment – the offended party may file the civil
action against the estate of the deceased (Sec. 4, Rule 111).
(c) Pending appeal
i. Civil liability arising from the crime is extinguished
ii. Civil liability predicated from another source
survives i.e. civil liability arising from law,
contracts, quasi-contract and quasi-delict.
iii.
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 estafa, reimbursement of or compromise as to the amount
misappropriated after the commission of the crime affects only the
civil liability of the offender, and not his criminal liability.
Effect of payment of the civil liability
Payment of civil liability does not extinguish criminal liability. While
there may be 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)
Section 5 - Judgment in civil action not a bar.
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).
Section 6 & 7 – Prejudicial Question
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 previously or ahead of the criminal action (Sec. 7, Rule 111,
Rules of Court).
Basically, the resolution of the civil action will determine the guilt or
innocence of the accused in the criminal case. The guilt or innocence
of the accused will depend on the outcome of the issue in the civil
Case.
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 case
Requisites for a prejudicial question
(a) the civil case involves facts intimately related to those upon
which the criminal prosecution would be based;
(b) in the resolution of the issue or issues raised in the civil
action, the guilt or innocence of the accused would
necessarily be determined; and
(c) jurisdiction to try said question must be lodged in another
tribunal
Strictly speaking, a prejudicial question under Sec. 7 of Rule 111 may
not be invoked in any of the following situations:
(a) both cases are criminal,
(b) both civil,
(c) both cases are administrative,
(d) one case is administrative and the other civil, or
(e) one case is administrative and the other criminal.
XPN: Case of San Miguel Properties vs. Perez (2013)
While the court conceded that the concept of prejudicial question
involves a civil and a criminal case, the action for specific performance
is an action civil in nature that could not be instituted elsewhere
except in the HLURB, which had exclusive and original jurisdiction
over the same.
Important Rules on applying Prejudicial Question:
(a) 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 prejudicial question without a
petition to suspend being filed.
(b) Since a petition 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
(c) Suspension does not include dismissal. It only authorizes its
suspension. The suspension shall be made upon the filing of
a petition for suspension.
Where to file the petition for suspension
(a) The Office of the Prosecutor; or
(b) The court where the criminal action has been filed for trial
at any time before the prosecution rests (Sec. 6, Rule 111).
NOTE: The filing for a petition for suspension does not require that
the criminal case be already filed in court.
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.

RULE 112 – PRELIMINARY INVESTIGATION
A. PRELIMINARY INVESTIGATION
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 (Sec
1. Rule 112, ROC)
I. Preliminary Investigation; Concept of
It 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
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 to be so.
Preliminary investigation does not determine the guilt or innocence
of the accused. He does not exercise adjudication nor rule-making
functions.
Not Required by Consti; Only statutory right 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
Duterte v. Sandiganbayan)
The conduct of Preliminary Investigation is a function that belongs to
the Public Prosecutor. Succinctly, the public prosecutor is given a
broad discretion to determine whether probable cause exists and to
charge those whom he believes to have committed the crime and
should be held for trial.
II. Purpose
In general
Determine whether:
(a) a crime has been committed; and
(b) there is probable cause to believe that the
accused is guilty thereof
Specific
(a) to inquire concerning the commission of a crime and the
connection of the accused with it, in order that he may be
informed of the nature and character of the crime charged
against him, and, if there is probable cause for believing him
guilty, that the State may take the necessary steps to bring
him to trial;
(b) to preserve the evidence and keep the witnesses within the
control of the State; and
(c) to determine the amount of bail, if the offense is bailable.
The officer conducting the examination investigates or
inquires into facts concerning the commission of a crime
with the end in view of determining whether an information
may be prepared against the accused.
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)
It is designed to free a respondent from the inconvenience, expense,
ignominy and stress of defending himself 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. CA)
III. Preliminary Investigation; when required
GR: Before the filing of a complaint or information for an offense
where the penalty prescribed by law is imprisonment of at least 4
years, 2 months and 1 day without regard to the imposable fine (Sec.
1, Rule 112).
XPNs:
(a) the complaint or information is filed directly in court; or
(b) For cases requiring preliminary investigation, when a
person is lawfully arrested without a warrant provided that
inquest was made in accordance with Rule 112 (Sec. 6, Rule
112).
IV. Probable cause in Preliminary Investigation; how
determined
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.
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.
Being based merely on 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.
PRELIMINARY PRELMINARY
INVESTIGATION EXAMINATION
Who conducts Executive Judiciary
Purpose Determination of P.C Determination of P.C
for filing of information for the issuance of
warrant
V. Waiver of Preliminary Investigation
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
It shall be deemed waived by:
a. Express waiver or by silence (Herrera, 2007);
b. Failure to invoke it during arraignment.
c. Consenting to be arraigned and entering a plea of
not guilty without invoking the right to
preliminary investigation; or
d. Failure to request for it within 5 days from the
time he learns of the filing of the complaint or
information, in those instances where the
accused is lawfully arrested without a warrant
(Sec. 6, Rule 112).
VI. Courts are precluded from reviewing findings of
prosecutors; exception
GR: Being an executive function, SOJ and/or public prosecutor is given
a broad discretion to determine whether probable cause exists and to
charge those whom he believes to have committed the crime and
should be held for trial.
XPN: GRADALEJ. when he acts with grave abuse of discretion
amounting to lack or excess of jurisdiction; when he grossly
misapprehends facts; when he acts in a manner so patent and gross
as to amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined by law; or when he acts outside the
contemplation of law
To justify judicial intervention, the abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform a duty enjoined by law or to act at all in
contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility.
VII. Instances when probable cause needs to be
established
(a) Preliminary investigation (4yrs, 2mos,1day)
(b) Issuance of warrant of arrest or commitment order
(c) By peace officer or private person making a warrantless
arrest
(d) Issuance of search warrant
VIII. Who conducts Preliminary Investigation?
(a) Provincial or City Prosecutors and associates
(b) National and Regional State Prosec
(c) COMELEC
(d) Ombudsman
(e) PCGG
IX. Absence of a preliminary investigation; effect of
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 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)
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.
CA)
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
If 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 case.
X. Procedure for not requiring a preliminary
investigation
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
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;
(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 or government official authorized to
administer oaths, or in their absence or unavailability,
before a notary public, each of whom must certify that he
personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
DUTY OF PROSEC:
act on the complaint based on the affidavits and other
supporting documents submitted by the complainant
within ten (10) days from its filing (Sec. 8, Rule 112, ROC)
OPTIONS OF PROSEC :
(a) If with probable cause, issue reso, file with court
(b) Otherwise dismiss
Direct filing with the Municipal Trial Court
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.
JUDGES DUTY:
(a) Act on the complaint or information within 10 days
from filing
(b) 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
JUDGE’S OPTIONS
(a) 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.
(b) If with probable cause, issue warrant or commitment
order. If there is no necessity for placing the accused
under custody, the court may issue summons. (failure
to appear when so required may be a ground for the
issuance of warrant of arrest.
RULES AND PROCEDURE FOR PRELIMINARY INVESTIGATION
PROSECUTOR LEVEL
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 file (Sec. 3[a], Rule 112, Rules of Court).
PROSECUTOR’S OPTIONS
(a) Dismiss
(b) If with probable cause, prepare both the resolution and
information, issue subpoena accompanied by a copy of the
complaint and its supporting affidavits and documents
Filing of counter-affidavit by the respondent; no motion to dismiss
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 is required 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).
Note: A copy of the counter affidavit shall be furnished to
the complainant. Failure to do so is procedural defect.
If the respondent does not submit his counter-affidavit
If despite the subpoena, the respondent does not submit his counter-
affidavit within the ten-day period granted him, the investigating
officer shall resolve the complaint based on the evidence presented
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 parte investigation because
the respondent cannot or does not participate in the proceedings.
Clarificatory hearing if necessary; no right of cross-examination
1Within 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 officer, if there are facts 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 the questions to the party or witness concerned. The
hearing shall be terminated within five (5) days
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.
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 trial (Sec. 3 [fl, Rule 112,
Rules of Court).
If Prosecutor Determines that there is Probable Cause:
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
(e) that he was given an opportunity to submit controverting
evidence
Note: 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.
What is not allowed is the filing of the information without a
preliminary investigation having been previously conducted.
Forwarding of the records of the case for action; need for
approval before filing or dismissal
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten
(10) days from their receipt thereof and shall immediately inform
the parties of such action. The Resolution may be reversed or
affirmed by the provincial or city prosecutor or chief state
prosecutor, or the Ombudsman.
If dismissal is disapproved
(a) OCP/CSP/OMBUD may by himself, file the information
against the respondent, or
(b) direct another assistant prosecutor or state
prosecutor to do so without conducting another
preliminary investigation
Motion for reconsideration (sa prosecutor)
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).
REVIEW
An aggrieved party may appeal by filing a verified petition for review
with the Secretary of Justice and by furnishing copies thereof to the
adverse party and prosecution office issuing the appealed resolution.
The appeal shall be taken within 15 days from receipt of the
resolution or of the denial of the motion for reconsideration or
reinvestigation if one has been filed within 15 days from receipt of the
assailed resolution. Only one motion for reconsideration shall be
allowed.
Unless the Secretary directs otherwise, the appeal shall not stay the
filing of the corresponding information in court on the basis of the
finding of probable cause in the assailed decision. The decision of the
prosecutor may be reviewed by the courts when he acts with grave
abuse of discretion amounting to lack of jurisdiction (Herrera, 2007)
NOTE: If the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to
file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties (Sec. 4,
Rule 112).
Doctrine in the Case of Crespo vs. Mogul
Once a complaint or information is filed in Court any disposition of
the case as its dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court. 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 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
jurisdiction and competence. A motion to dismiss the case filed by the
fiscal should be addressed to the Court who has the option to grant
or deny the same. It does not matter if this is done before or after the
arraignment of 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
Remedy of an aggrieved party against a Resolution of the SOJ
The resolution of the Secretary of Justice is appealable
administratively before the Office of the President, and the decision
of the latter may be appealed before the CA pursuant to Rule 43
Only criminal cases are under the following circumstance are
entertained by the Office of the President
(a) The offense involved is punishable by reclusion perpetua to
death;
(b) New and material issues are raised which were not
previously presented before the Department of Justice and
were not ruled upon;
(c) The prescription of the offense is not due to lapse within six
(6) months from notice of the questioned resolution; and
The appeal or petition for review is filed within thirty (30) days from
notice.
However, if there is grave abuse of discretion resulting to lack or
excess of jurisdiction, a petition for certiorari under Rule 65 may be
filed.
Effect of the filing of a Petition for Review before the DOJ
if the Information was already filed in court
Should the information be already filed in court but the
accused filed a petition for review of the findings of the
prosecutors with the DOJ, the court is bound to suspend the
arraignment of the accused for a period not exceeding 60
days (Sec. 11, Rule 116).
NOTE: The suspension shall be made upon motion of the
proper party
Remedy of an aggrieved party against the Resolution of the
Ombudsman
The resolution of the Ombudsman in administrative cases may be
subject of petition for review via Rule 43 before the CA (Sec. 7, Rule
III of the Rules of Procedure of the Office of the Ombudsman) or a
special civil action for certiorari via Rule 65 before the SC in criminal
cases (Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5, 2002).
INFORMATION ALREADY FILED IN COURT
Records supporting the information or complaint filed in court
An information or complaint filed in court shall be supported by the
affidavits and counter-affidavits of the parties and their witnesses,
together with the other supporting evidence and the resolution on
the case (Sec. 7[a], Rule 112, Rules of Court).
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.
However, 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).
JUDGE’S DUTY
Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution 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).
Note that under Sec. 5 of Rule 112 of the ROC, the court, where a
preliminary investigation has previously been conducted, does not
have the duty to personally examine the complainant and his
witnesses in writing and under oath and in the form of searching
questions and answers. This type of examination of the complainant
and his witnesses APPLIES as an OPTION of the court, ONLY in a case
where there is a direct filing of the complaint or information with
the MTC since no previous preliminary investigation has been
conducted.
JUDGE’S OPTIONS:
(a) Dismiss the case if
i. Fails to establish probable cause
ii. Engenders a doubt as to the existence of
probable cause
(b) If he finds probable cause, issue warrant of arrest or
commitment order
(c) Order prosecution to submit additional evidence
within 5 days from notice (not mandatory)
Dismissal of a case for lack of probable cause, a final order
Reason: it disposes of the case, terminates the proceedings, and
leaves the court with nothing further to do with respect to the case
When warrant of arrest is not necessary
(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, Rule 112 (Sec. 5[c], Rule 112, Rules
of Court); also when a warrant has already been 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).
Unless he fails to appear whenever required.
Withdrawal of the information already filed in court
Crespo v. Mogul
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.
The court held 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.
Lanier vs. People
The rule applies to a motion to withdraw the Information or to dismiss
the case even before or after arraignment of the accused. While the
Secretary's ruling is persuasive, it is not binding on courts.
Kua vs. Sacupayo
While the recommendation of the public prosecutor of the ruling of
the DOJ Secretary is persuasive, it is not binding on courts. xxx It is
the court’s bounden duty to assess independently the merits of the
motion, and the assessment must be embodied in a written order
disposing of the motion.
Overview of Procedure in cases where Preliminary Investigation is Required (from Book of Ferdinand Tan)

B. INQUEST
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.
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) An inquest is
not a preliminary investigation. It is a summary investigation, and
which does not follow the procedures set forth in Sec. 3 of Rule 112
of the Rules of Court.
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.
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
I. Inquest; when 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.
II. Duty and Options of the inquest prosecutor
Determine first is the person is LAWFULLY ARRESTED.
For this purpose, the Inquest Officer may summarily examine the
arresting officers on the circumstances surrounding the arrest or
apprehension of the detained person
(a) If not lawfully arrested:
a. he shall not proceed with the inquest
proceedings
b. shall recommend the release of the detainee,
note down the disposition on the referral
document
c. 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
City of the Provincial Prosecutor for appropriate
action.
d. 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 upon 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 shall be also released 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 (This rule is often referred
to as RELEASE FOR FURTHER INVESTIGATION)
(b) If lawfully arrested:
a. first ask the detained person if he desires to avail
himself of a preliminary 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.
b. 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
c. If no probable cause is found, he shall
recommend the release of the detained person.
Person arrested lawfully without a warrant may ask for a
preliminary investigation
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, such person
may nevertheless, ask for a preliminary investigation in
accordance with Rule 112, before the complaint or
information 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).
The fact that a person was lawfully arrested without a
warrant does not bar him from availing of a preliminary
investigation.
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).
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.
III. 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.
INQUEST PRELIMINARY INVESTIGATION
To determine whether the Conducted to determine
accused should remain under probable cause.
custody and be charged in
court.
 RULE 127 – PROVISIONAL REMEDIES
*Note this section is entirely lifted from GN 2018
They are those to which parties may resort for the preservation or
protection of their rights or interests and for no other purposes during
the pendency of the action.
They are applied to a pending litigation for the purpose of securing
the judgment or preserving the status quo; and in some cases, after
judgment, for the purpose of preserving or disposing of the subject
matter (Cala v. Roldan, G.R. No. L-252, March 30, 1946).
I. Kinds of Provisional Remedies available in criminal cases
(a) Attachment (Rule 57);
(b) Preliminary injunction (Sec. 58);
(c) Receivership (Rule 59);
(d) Replevin (Rule 60); and
(e) Support pendente lite (Rule 61)
Attachment
It is a remedy afforded to the offended party to have the property of
the accused attached as security for satisfaction of any judgment that
may be recovered from the accused.
Party who may apply for attachment
The aggrieved party in whose behalf the civil aspect of the
criminal action is prosecuted may apply for the issuance of
a writ of preliminary attachment, he being the person
primarily and directly interested thereby. The prosecutor in
the criminal action may make such an application in behalf
of or for the protection of the interest of the offended party.
Cases wherein attachment is made available
(a) When the accused is about to abscond from the
Philippines;
(b) When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the accused
who is a public officer, or any officer of a
corporation, or an attorney, factor, broker, agent,
or clerk, in the course of his employment as such,
or by
(c) any person in a fiduciary capacity, or for a willful
violation of a duty;
(d) When the accused has concealed, removed or
disposed of his property or is about to do so; and
(e) When the accused resides outside the Philippines.
(Sec. 2, Rule 127)
Preliminary Injunction
It is an order of the court to restrain or to cease from doing an act.
Receivership
It is a remedy available to secured creditors to recover amounts under
a secured loan in the event the company defaults payments.
Replevin
It is a procedure whereby seized goods may be provisionally restored
to their owner pending the outcome of an action.
Support Pendente Lite
It is an order against the accused to provide support pendente lite to
the child born to the offended party allegedly because of the crime.
The application therefor may be filed successively by the offended
party, her parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency. (Sec. 6, Rule 61)
RULE 113 – ARREST
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, a person is arrested for a
specific and definite purpose — to make him answer for the
commission of an offense.
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.
I. Requisite for the issuance of a warrant of arrest:
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.
Remember: The existence of probable cause is vital to the
validity of a warrant of arrest
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. Pena).
II. Probable Cause
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
III. Personal examination by judge not required
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, citing the
case of Soliven v. Makasiar, , 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.
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.
 PROBABLE CAUSE IN SEC 5 RULE 113 vs. PC IN PRELIMINARY INVESTIGATION vs. PC IN JUDICIAL PROCEEDINGS
FOR ISSUANCE OF WARRANT OF ARREST
ARREST - SECTION 5 RULE 113 PRELIMINARY JUDICIAL PROCEEDINGS
INVESTIGATION FOR WOA
DEFINITION a reasonable ground of suspicion probable cause as the the existence of such facts
supported by circumstances existence of facts and and circumstances that
sufficiently strong in themselves circumstances as would excite would lead a reasonably
to warrant a cautious man to the belief in a reasonable discreet and prudent person
believe that the person accused mind, acting on the facts to believe that an offense
is guilty of the offense with within the knowledge of the has been committed by the
which he is charged,[64] or an prosecutor, that the person person sought to be
actual belief or reasonable charged was guilty of the arrested.
ground of suspicion, based on crime for which he was
actual facts prosecuted.
PURPOSE Arrest determine whether a crime Issuance of Warrant of
has been committed and Arrest
whether there is probable
cause to believe that the
accused is guilty of the crime
and should be held for trial.
BASIS based on his personal knowledge based on the submitted must be satisfied that based
of facts or circumstances that documents of the on the evidence submitted,
the person sought to be arrested complainant, the respondent there is sufficient proof
has committed the crime. These and his witnesses that a crime has been
facts or circumstances pertain to committed and that the
actual facts or raw evidence, i.e., person to be arrested is
supported by circumstances probably guilty thereof.
sufficiently strong in themselves
to create the probable cause of At this stage of the criminal
guilt of the person to be proceeding, the judge is not
arrested. A reasonable suspicion yet tasked to review in
therefore must be founded on detail the evidence
probable cause, coupled with submitted during the
good faith on the part of the preliminary investigation. It
peace officers making the arrest is sufficient that he
personally evaluates the
evidence in determining
probable cause to issue a
warrant of arrest.
HOW *see definition the public prosecutor and the judge all determine "probable
DETERMINED In short, the arresting officer cause," within the spheres of their respective functions, its
operates on the basis of more existence is influenced heavily by the available facts and
limited facts, evidence or circumstance within their possession. In short, although
available information that he these officers use the same standard of a reasonable man,
must personally gather within a they possess dissimilar quantity of facts or circumstances, as
limited time frame. set by the rules, upon which they must determine probable
cause.
In Santos, the SC held that one should not
expect too much of an ordinary policeman. He
is not presumed to exercise the subtle
reasoning of a judicial officer. Oftentimes, he
has no opportunity to make proper
investigation but must act in haste on his own
belief to prevent the escape of the criminal.
IV. Method of arrest with warrant; warrant need not be in
possession of the officer
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).
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
c) the giving of the information will imperil the arrest (Sec.7,
Rule 113, Rules of Court).
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).
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 detention (Sec. 2, Rule 113, Rules of Court).
Authority to summon assistance
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 (Sec. 10, Rule 113, Rules of Court).
The duty of the person summoned does not arise when rendering
assistance would cause harm to himself. (Sec. 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).
V. When a warrantless arrest is lawful
Take note of the general rule that a warrant of arrest is required
before an arrest is made. A warrantless arrest is merely the exception.
Rule 113 of the Rules on Criminal Procedure provide for the
instances when a warrantless arrest may be made:
"Sec. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense (in flagrante delicto);
(b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it (hot pursuit exception); 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" (escapee exception).
Other grounds whereby a person can be lawfully arrested without
warrant:
(a) when a person previously lawfully arrested
escapes or is rescued. (Sec. 13, Rule 113, ROC).
(b) 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).
VI. In flagrante requisites, basis, exception
Requisites:
(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
Note: 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.
Flight per se is not synonymous with guilt and must not always be
attributed to one’s consciousness of guilt.It is not a reliable indicator
of guilt without other circumstances, for even in high crime areas
there are many innocent reasons for flight, including fear of
retribution for speaking to officers, unwillingness to appear as
witnesses,and fear of being wrongfully apprehended as a guilty party.
VII. Hot Pursuit
Requirements:
(a) an offense has just been committed; and
(b) the person making the arrest has personal knowledge of
facts indicating that the person to be arrested has
committed it
Note: This exception does not require the arresting officer or person
to personally witness the commission of the offense. In fact, the
offense was not committed in his presence although said offese, as
required by the Rules, “has just been committed”. The tenor of the
rules obviously emphasizes the immediacy of the arrest reckoned
from the commission of the crime.
It must be emphasized that personal knowledge referred to under the
hot pursuit exception does not refer to actual knowledge of the
crime because the officer did not witness its commission. The
knowledge referred to is knowledge that a crime was committed even
if it was not committed in his presence.
Hot pursuit In flagrante delicto
The person making the arrest The person making the arrest
knows for a fact that a crime himself WITNESS the crime.
has been committed
VIII. Method of arrest without a warrant
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).
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 his intention to arrest 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 (Sec. 9, Rule 113, Rules of Court).
The right to break into a building or an enclosure specifically refers
to an 'officer' and not to a private person (Sec. 11, Rule 113, Rules of
Court).
Note: Where a warrantless arrest is made under the in flagrante and
hot pursuit exceptions, the person arrested without a warrant shall
be forthwith delivered to the nearest police station or jail (Sec. 5, last
paragraph, Rule 113).
IX. Rights of a person arrested (R.A. 7438)
Under Republic Act No.7438. The rights of person arrested are:
(a) The right to be assisted by counsel at all times (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 rights (Sec. 2[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).
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 effect.
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 inadmissible as
evidence in any proceeding.
Custodial investigation; expanded concept
As a rule The rule on custodial investigation begins to operate as
soon as the investigation ceases to be a general inquiry into an
unsolved crime and the interrogation is then aimed on a particular
suspect who has been taken into custody and to whom the police
would then direct interrogatory questions that tend to elicit
incriminating statements.
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.
The use of the term "invited" in the affidavit of arrest is to be
construed as an authoritative command by the officer for the
accused to submit to the custody of the officer. It is, therefore, an
arrest.
X. Effect of an illegal arrest
On Jurisdiction of the Court
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.
On Jurisdiction over the Person
Any objection involving a warrant of arrest or the procedure by which
the court acquired jurisdiction of the person of the accused must be
made before he enters his pleas otherwise, the objection is deemed
waived.
However, 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 accused
voluntarily enters his plea and participates during the trial, without
previously invoking objections thereto (Borlongan vs. Pena)
On inadmissibility of the evidence
When a person fails to make a timely objection to illegal arrest only
the right to assail the arrest is waived. He does not waive the right to
question the admissibility of the evidence seized by virtue of the
illegal arrest
A waiver of an illegal warrantless arrest does not men a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest.
XI. Persons not subject to arrest
(a) 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. Also, the privilege does not
apply if Congress is not in session (Sec. 11, Art. VI, Philippine
Constitution).
(b) 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
(c) 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).