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CRIMINAL PROCEDURE

Criminal Jurisdiction – power of the 2. Determined by the law in force at


State to try and punish a person for a the time of the institution of the
violation of its penal laws. criminal action. ONCE VESTED, IT
CANNOT BE WITHDRAWN BY:
REQUISITES FOR A VALID EXERCISE OF a) subsequent valid amendment
CRIMINAL JURISDICTION: of the information; or
1. The offense, by virtue of the b) a subsequent statutory
imposable penalty OR its nature, amendment of the rules of
is one which the court is by law jurisdiction, UNLESS the
authorized to take cognizance of, amendatory law provides
(jurisdiction over the SUBJECT otherwise.
MATTER).
2. The offense must have been
committed within its territorial RULE 110
jurisdiction, (jurisdiction over PROSECUTION OF OFFENSES
the TERRITORY).
3. The person charged with the Section 1. Institution of criminal
offense must have been brought actions.
to its presence for trial, forcibly
by warrant of arrest or upon his For offenses where a preliminary
voluntary submission to the investigation is required - by filing the
court, (jurisdiction over the complaint with the proper officer for the
PERSON OF THE ACCUSED). purpose of conducting the requisite
preliminary investigation.
JURISDICTION JURISDICTION
OVER THE OVER THE PERSON Preliminary investigation is REQUIRED for
SUBJECT MATTER OF THE ACCUSED offenses where the penalty prescribed by
Derived from the May be acquired by law is at least 4 years, 2 months and 1day
law. It can never be consent of the without regard to fine (Rule 112, Sec. 1
acquired solely by accused or by waiver Par.2).
consent of the of objections.
accused. For all other offenses - by filing the
Objection that the If he fails to make his complaint or information directly with
court has no objection in time, he the Municipal Trial Courts and Municipal
jurisdiction of the will be deemed to Circuit Trial Courts, or the complaint with
subject matter may have waived it. the office of the prosecutor.
be made at any stage
of the proceeding, DOES NOT APPLY to offenses which are
and the right to subject to summary procedure.
make such objection
is never waived. Effect of institution of the criminal
action:
DETERMINATION OF CRIMINAL It interrupts the running of the period of
JURISDICTION: prescription of the offense charged unless
1. Determined by the allegations in otherwise provided by special laws.
the complaint or information not
by the results of proof or by the
trial court’s appreciation of the
evidence presented.
motion to quash on that ground has
Remedies of the offended party if the been denied.
prosecutor refuses to file an
information: Section 2. Form of the complaint or
1. file an action for mandamus, in information.
case of grave abuse of discretion;
2. lodge a new complaint before the FORM
court having jurisdiction over the 1. In writing;
offense; 2. In the name of the People of the
3. take up the matter with the Philippines; and
Secretary of Justice in 3. Against all persons who appear to
accordance with the Rev. be responsible for the offense
Administrative Code; involved.
4. institute an administrative Section 3. Complaint defined.
charges against the erring
prosecutor; and A Complaint is:
5. file criminal action against the 1. a sworn written statement;
prosecutor with the 2. charging a person with an
corresponding civil action for offense;
damages. 3. subscribed by the offended party,
any peace officer or other public
May Injunction Issue to Restrain officer charged with the
Criminal Prosecution? enforcement of the law violated.
GENERAL RULE: Criminal prosecutions
may NOT be restrained or stayed by The complaint mentioned in this section
injunction, preliminary or final. The refers to one filed in court for the
reason being, public interest requires commencement of a criminal prosecution
that criminal acts be immediately for violation of a crime, usually
investigated and prosecuted for the cognizable by municipal trial courts as
protection of the society (Domingo vs. well as to a complaint filed by an
Sandiganbayan, 322 SCRA 655). offended party in private crimes or those
EXCEPTIONS: which cannot be prosecuted de officio.
1. To afford adequate protection to the
constitutional rights of the accused; REQUISITES OF A COMPLAINT:
2. When necessary for the orderly 1. it must be in writing and under
administration of justice or to avoid oath;
oppression or multiplicity of actions; 2. it must be in the name of the
3. When there is a prejudicial question People of the Philippines;
which is subjudice; 3. it must charge a person with an
4. When the acts of the officer are offense; and
without or in excess of authority; 4. it must be subscribed by the
5. When the prosecution is under an offended party, by any peace
invalid law, ordinance or regulation; officer or public officer charged
6. When double jeopardy is clearly with the enforcement of the law
apparent; violated.
7. When the court had no jurisdiction
over the offense; PERSONS WHO CAN FILE A COMPLAINT
8. When it is a case of persecution 1. Offended party
rather than prosecution; 2. Any peace officer
9. When the charges are manifestly 3. Other public officer charged with
false and motivated by lust for the enforcement of the law
vengeance; and violated
10. When there is clearly no prima facie
case against the accused and a
prosecuted under the direction and
ex. Internal Revenue Officer for control of the prosecutor.
violation of the NIRC, custom
agents with respect to violations A PRIVATE PROSECUTOR may be
of the Tariff and Customs Code authorized to prosecute a criminal action
subject to the following conditions:
Section 4. Information defined. 1. the public prosecutor has a heavy
work schedule, or there is no
An Information is: public prosecutor assigned in the
1. an accusation in writing; province or city;
2. charging a person with an 2. the private prosecutor is
offense; authorized IN WRITING by the
3. subscribed by the prosecutor and Regional State Prosecutor (RSP),
filed with the court. Provincial or City Prosecutor;
3. the authority of the private
REQUISITES OF AN INFORMATION prosecutor must be approved by
1. it must be in writing; the court;
2. it must charge a person with an 4. the private prosecutor shall
offense; continue to prosecute the case
3. it must be subscribed by the until the end of the trial unless
fiscal; and the authority is withdrawn or
4. it must be filed in court. otherwise revoked by the RSP,
Provincial or City Prosecutor; and
COMPLAINT INFORMATION 5. In case of the withdrawal or
Subscribed by the Subscribed by the revocation of the authority of
offended party, any fiscal the private prosecutor, the same
peace officer or other (indispensable must be approved by court.
officer charged with requirement) (Memo Circ. No. 25, April 26,
the enforcement of 2002, Regarding Amendment to
the law violated Sec. 5, Rule 110)
it may be filed either it is filed with the
in court or in the court In appeals before the CA and the SC, it is
prosecutor’s office only the Solicitor General that is
must be made under need not be under authorized to bring and defend actions in
oath oath behalf of the People of the Philippines
(People vs. Nano, 205 SCRA 155).
 Prosecution in the RTC are
alwayscommenced by information, EXCEPT: In all cases elevated to the Sandiganbayan
1. in certain crimes against chastity and from the Sandiganbayan to the SC,
(concubinage, adultery, the Office of the Ombudsman, through its
seduction, abduction, acts of Special Prosecutor shall represent the
lasciviousness); and People of the Philippines, EXCEPT in cases
2. defamations imputing any of the filed pursuant to E.O. Nos. 1, 2, 14 and
aforesaid offenses wherein a 14-A,
sworn written complaint is issued in 1986 (Sec. 4, RA 8249).
required in accordance with
section 5 of this Rule. PROSECUTION OF CRIMES AGAINST
CHASTITY
Section 5. Who must prosecute
criminal actions. WHO MAY PROSECUTE
FULL DISCRETION AND CONTROL OF 1. Concubinage and adultery – only by
THE PROSECUTOR the offended spouse who should
All criminal actions commenced by a
complaint or information shall be
c) if the offended woman is of age
have the status, capacity, and legal and not otherwise incapacitated,
representation at the time of filing only she can extend a valid
of the complaint, regardless of age; pardon.
2. Seduction, Abduction and Acts of
Lasciviousness – prosecuted The pardon refers to pardon BEFORE filing
exclusively and successively by the of the criminal complaint in court. Pardon
following persons in this order: effected after the filing of the complaint
a) by the offended woman in court does NOT prohibit the
b) by the parents, grandparents or continuance of the prosecution of the
legal/judicial guardians in that offense EXCEPT in case of marriage
successive order between the offender and the offended
c) by the State in the exercise of the party.
right of parens patriae, when the
offended party dies or becomes PARDON vs. CONSENT
incapacitated before she could Consent refers to future acts, while
file the complaint and she has no pardon refers to past acts of adultery.
known parents, grandparents or The importance of this distinction is that
guardian. consent, in order to absolve the accused
3. A defamation imputing to a person from liability, is sufficient even if granted
any of the foregoing crimes of only to the offending spouse, whereas
concubinage, adultery, seduction, pardon must be extended to both
abduction, rape or acts of offenders
lasciviousness can be prosecuted only
by the party or parties defamed The SUBSEQUENT MARRIAGE between the
(Article 360, last par., Revised Penal offended party and the accused
Code). extinguishes the criminal liability of the
latter, together with that of the co-
If the offended party is of legal age AND principals, accomplices and accessories.
does not suffer from physical or mental EXCEPT:
disability, she alone can file the 1. where the marriage was invalid or
complaint to the exclusion of all others. contracted in bad faith in order to
escape criminal liability,
WHO CAN GIVE PARDON 2. in “private libel”
1. Concubinage and adultery - only the 3. in multiple rape, insofar as the
offended spouse, not otherwise other accused in the other acts
incapacitated, can validly extend the of rape respectively committed
pardon or consent contemplated by them are concerned.
therein.
2. Seduction, abduction, and acts of  The ACQUITTAL OR DEATH of
lasciviousness – one of the accused in the crime of
a) the offended minor, if with adultery does not bar the prosecution
sufficient discretion, can validly of the other accused (People vs.
pardon the accused by herself if Topiño, et al.,
she has no parents or where the 35 Phil. 901). HOWEVER, the death of the
accused is her own father and her offended spouse before the filing of the
mother is dead; complaint for adultery bars further
b) the parents, grandparents or prosecution, BUT if the offended spouse
guardian of the offended minor, died after the filing of the corresponding
in that order, CANNOT extend a complaint, his death will NOT prevent the
valid pardon in said crimes proceeding from continuing to its
WITHOUT the conformity of the ultimate conclusion.
offended party, even if the latter
is a minor;
Section 8. Designation of the offense.
 DESISTANCE of complainant
does not bar criminal prosecution but The information or complaint must state
it operates as waiver of the right to or designate the following whenever
pursue civil indemnity. possible:
1. The designation of the offense
Section 6. Sufficiency of complaint or given by the statute.
information. 2. The statement of the acts or
omissions constituting the
CONTENTS OF A VALID COMPLAINT OR offense, in ordinary, concise and
INFORMATION particular words.
1. Name of the accused, including 3. The specific qualifying and
any appellation or nickname aggravating circumstances must
An error in the name of the be stated in ordinary and concise
accused is not reversible as long language.
as his identity is sufficiently
established and this defect is The qualifying and aggravating
curable at any stage of the circumstances cannot be appreciated
proceedings as the insertion of even if proved UNLESS alleged in the
the real name of the accused is information.
merely a matter of form.
2. The designation of the offense In case of allegation of aggravating
3. The acts or omissions complained circumstance of HABITUAL
of as constituting the offense DELINQUENCY, it should not be generally
4. The name of the offended party averred. The information must specify
5. The approximate time of the the requisite data regarding:
commission of the offense 1. the commission of the crimes;
6. The place wherein the offense 2. the last conviction or release;
was committed 3. the other previous conviction or
release of the accused.
PURPOSE OF THE RULE
1. To inform the accused of the ALLEGATIONS PREVAIL OVER
nature and cause of accusation DESIGNATION OF THE OFFENSE IN THE
against him. INFORMATION
2. To notify the defendant of the
criminal acts imputed to him so It is not the designation of the offense in
that he can duly prepare his the complaint or information that is
defense. controlling (People vs. Samillano, 56
SCRA 573); the facts alleged therein and
Substantial defect in the information not its title determine the nature of the
cannot be cured by evidence that would crime (People vs. Magdowa, 73 Phil. 512).
jeopardize the accused’s right to be
informed of the true nature of the offense The accused may be convicted of a crime
he is being charged with more serious than that named in the title
or preliminary part if such crime is
Section 7. Name of the accused. covered by the facts alleged in the body
of the information and its commission is
PURPOSE established by evidence (Buhat vs. Court
The manifest intent of the provision is to of Appeals, 265 SCRA 701).
make a specific identification of the
person to whom the commission of an
offense is being imputed.
Section 10. Place of commission of the
Limitation on the rule that an accused offense
may be convicted of a crime which is
more serious than that named in the title PURPOSE
so long as the facts alleged the more To show territorial jurisdiction.
serious offense:
Section 11. Date of commission of the
An accused could not be convicted under offense
one act when he is charged with a
violation of another if the change from GENERAL RULE:
one statute to the other involves: It is NOT required that the complaint or
a) a change in the theory of the information state with particularity the
trial; PLACE where the crime was committed
b) requires of the defendant a and the DATE of the commission of the
different defense; or crime.
c) surprises the accused in any way EXCEPTION:
(U.S. vs. Panlilio, 28 Phil. 603) If the PLACE/DATE of the commission of
. the offense constitutes an essential
Section 9. Cause of the accusation. element of the offense.

PURPOSE Section 12. Name of the offended party


1. to enable the court to pronounce
proper judgment; GENERAL RULE: The offended party must
2. to furnish the accused with such be designated by name, nickname, any
a description of the charge as to other appellation or by fictitious name.
enable him to make a defense; EXCEPTION: In crimes against property,
3. as a protection against further the description of the property must
prosecution for the same cause. supplement the allegation that the owner
is unknown.
RULE ON NEGATIVE AVERMENTS
GENERAL RULE: Where the statute Section 13. Duplicity of offense.
penalizes generally the acts therein
defined and is intended to apply to all There is duplicity when the complaint or
persons indiscriminately, the information information charges 2 or more DISTINCT
is sufficient even if does not allege that or DIFFERENT offenses.
the accused falls within the excepted
situation, for then the complete GENERAL RULE:
definition of the offense is entirely A complaint or information must charge
separable from the exceptions and can be only one offense.
made without reference to the latter. In EXCEPTIONS:
this case, the exception is a matter of 1. Complex crimes
defense which the accused has to prove. 2. Special Complex crimes
3. Continuous crimes or delicto
EXCEPTION: Where the statute alleged to continuado
have been violated applies only to a 4. Crimes of which another offense
specific class of persons and to special is an ingredient
conditions, the information must allege
facts establishing that the accused falls Should there be duplicity of offense in the
within the specific class affected and not information, the accused must move for
those affected from the coverage of law. the quashal of the same BEFORE
Where negative averment is an essential
element of the crime, it must be proved.
arraignment, otherwise, he is deemed to AMENDMENT SUBSTITUTION OF
have waived the objection and maybe INFORMATION OR
found guilty of as many offenses as those COMPLAINT
charged and proved during the trial. May involve either Involves substantial
formal or substantial change from the
Section. 14. Amendment or changes original charge
substitution. Amendment before Substitution of
the plea has been information must be
KINDS OF AMENDMENT entered can be with leave of court
1. BEFORE THE PLEA – covers both effected without as the original
substantial and formal leave of court. information has to be
amendment, WITHOUT leave of dismissed.
court. Amendment is only Another preliminary
2. AFTER THE PLEA – covers only as to form, there is investigation is
formal amendment provided: no need for another entailed and the
a) leave of court is obtained preliminary accused has to plead
b) such amendment is not investigation and the anew to the new
prejudicial to the rights of retaking of the plea information
the accused. of the accused.
EXCEPT when a fact supervenes
which changes the nature of the An amended Requires or
crime charged in the information information refers to presupposes that the
or upgrades it to a higher crime, the same offense new information
in which case, there is a need for charged in the involves a different
another arraignment of the original information offense which does
accused under the amended or to an offense not include or is not
information. which necessarily necessarily included
includes or is in the original
An amendment is only in form where it necessarily included charge, hence the
neither affects nor alters the nature of in the original accused cannot claim
the offense charged OR where the charge charge, hence double jeopardy.
does not deprive the accused of a fair substantial
opportunity to present his defense OR amendments to the
where it does not involve a change in the information after the
basic theory of the prosecution. plea has been taken
cannot be made over
Substitution – If it appears at anytime the objection of the
before judgment that a mistake has been accused, for if the
made in charging the proper offense, the original information
court shall dismiss the original complaint would be withdrawn,
or information upon the filing of a new the accused could
one charging the proper offense, provided invoke double
the accused shall not be placed in double jeopardy.
jeopardy.
VARIANCE BETWEEN INDICTMENT AND
Limitation to the rule on substitution: PROOF (Situations Contemplated)
1. No judgment has yet been 1. When the offense proved is less
rendered. serious than, and is necessarily
2. The accused cannot be convicted included in, the offense charged,
of the offense charged or of any in which case the defendant shall
other offense necessarily be convicted of the offense
included therein. proved.
3. The accused would not be placed 2. When the offense proved is more
in double jeopardy. serious than and includes the
2. Complex Crimes
offense charged, in which case  Where the crime charged is a
the defendant shall be convicted complex crime, the RTC of
of the offense charged. any province in which any one
3. When the offense proved is of the essential elements of
neither included in, nor does it such complex crime had been
include, the offense charged and committed has jurisdiction to
is different therefrom, in which take cognizance of the
case the court should dismiss the offense.
action and order the filing of a 3. Continuing Offense - is one
new information charging the where the elements of which
proper offense. occur in several places, (unlike a
LOCAL OFFENSE - one which is
The third situation set forth above is fully consummated in one place)
substitution of information under Section  The venue is in the place
14, Rule 110. where one of its essential
elements was consummated.
Section 15. Place where action is to be 4. Piracy – The venue of piracy,
instituted. unlike all other crimes, has no
territorial limits.
PURPOSE 5. Libel – The action may be
The purpose being not to compel the instituted at the election of the
defendant to move to, and appear in a offended or suing party in the
different court from that of the territory province or city:
where the crime was committed, as it a) where the libelous article is
would cause him great inconvenience in printed and first published;
looking for his witnesses and other b) if one of the offended parties
evidence in another place (Beltran vs. is a private individual, where
Ramos, 96 Phil. 149). said private individual
actually resides at the time of
VENUE IS JURISDICTIONAL the commission of the
Venue is jurisdictional as the court has no offense;
jurisdiction to try an offense committed c) if the offended party is a
outside its territorial jurisdiction. It public official, where the
cannot be waived, or changed by latter holds office at the time
agreement of the parties, or by the of the commission of the
consent of the defendant. offense.
6. In exceptional circumstances – to
GENERAL RULE: Subject to existing laws, ensure a fair trial and impartial
in all criminal prosecutions, the action inquiry. The SC shall have the
must be instituted and tried in the courts power to order a change of venue
of the municipality or territory where the or place of trial to avoid
offense was committed or any of its miscarriage of justice (Section
essential ingredients occurred. 5[4], Article VIII, 1987
Constitution).
EXCEPTIONS TO THE RULE OF VENUE:
1. Felonies under Art. 2 of the Section 16. Intervention of the
Revised Penal Code offended party in criminal action.
 Shall be cognizable by the
proper court where the GENERAL RULE: Offended party has the
criminal action was first right to intervene by counsel in the
filed. prosecution of the criminal action, where
the civil action for recovery of
Civil Code which can be prosecuted even
civil liability is instituted in the criminal without reservation.
action pursuant to Rule 111.  In BP 22 cases, no reservation
to file the civil action separately shall
EXCEPTIONS: be allowed.
1. Where from the nature of the
crime and the law defining and RULES ON FILING FEES OF CIVIL ACTION
punishing it, NO civil liability DEEMED INSTITUTED WITH THE
arises in favor of the offended CRIMINAL ACTION
party; and 1. NO filing fees are required for
2. Where the offended party has amounts of ACTUAL DAMAGES,
waived his right to civil indemnity EXCEPT with respect to criminal
OR has expressly reserved his actions for violation of BP 22, in
right to institute a civil action OR which case, the offended party
has already instituted said action. shall pay in full the filing fees
based on the face value of the
check as the actual damages;
RULE 111 2. Damages other than actual
PROSECUTION OF CIVIL ACTIONS (moral, exemplary and other
damages) if specified in the
Section 1. Institution of criminal and complaint or information, the
civil actions. corresponding filing fees shall be
paid, otherwise the court will not
GENERAL RULE: acquire jurisdiction over such
When a criminal action is instituted, the damages;
civil action for the recovery of civil 3. Where moral, exemplary and
liability arising from the offense shall be other damages are NOT specified
deemed instituted with the criminal in the complaint or information,
action. the grant and amount thereof are
EXCEPTIONS: left to the sound discretion of the
1. when the offended party WAIVES trial court, the corresponding
the civil action filing fees need not be paid and
2. when the offended party shall simply constitute a first lien
RESERVES his right to institute a on the judgment.
separate civil action
3. when offended party INSTITUTES  Counterclaims, cross-claims,
A CIVIL ACTION PRIOR to the third party complaints are no longer
criminal action. allowed in a criminal proceeding. Any
claim which could have been the
WHEN RESERVATION SHALL BE MADE subject thereof may be litigated in a
1. before the prosecution starts to separate civil action.
present its evidence and
2. under circumstances affording Section 2. When separate civil action is
the offended party to a suspended.
reasonable opportunity to make
such reservation. PRIMACY OF CRIMINAL ACTION OVER
CIVIL ACTION
 ONLY the civil liability arising 1. After the filing of the criminal
fromthe crime charged as a felony is action, the civil action which has
now deemed instituted. Civil liability been reserved CANNOT be
arising from other sources of obligations instituted until final judgment
are no longer deemed instituted like has been rendered in the criminal
those under Article 32, 33, 34 and 2176 action.
of the
 Where the criminal case
2. If the civil action is instituted wa
sdismissed before trial because the
BEFORE the filing of the criminal offended party executed an affidavit
action and the criminal action is of desistance, the civil action thereof
subsequently commenced, the is similarly dismissed.
pending civil action shall be
suspended until final judgment in Section 3. When civil action may
the criminal action has been proceed independently.
rendered.
EXCEPTIONS:  The institution of an independent
a) In cases of independent civil civil action against the offender under
actions based upon Arts. 32, 33, Articles 32, 33, 34 and 2176 of the Civil
34 and 2176 of the Civil Code; Code may proceed independently of the
b) In cases where the civil action criminal case and at the same time
presents a prejudicial question; without suspension of either proceeding.
c) In cases where the civil action is
consolidated with the criminal  Recovery of civil liability under
action; and Articles 32, 33, 34 and 2176 of the Civil
d) Where the civil action is not one Code arising from the same act or
intended to enforce the civil omission may be prosecuted separately
liability arising from the offense. even without a reservation. The
reservation and waiver herein refers
ACQUITTAL IN A CRIMINAL CASE DOES only to the civil action for the recovery
NOT BAR THE FILING OF THE CIVIL CASE of civil liability arising from the offense
WHERE: charged (DMPI Employees Credit Coop
1. the acquittal is based on vs. Velez, G.R. No. 129282, Nov. 29,
reasonable doubt, if the civil case 2001).
has been reserved
2. the decision contains a PURPOSE
declaration that the liability of To prevent the offended party from
the accused is not criminal but recovering damages twice for the same
only civil in nature and act or omission.
3. the civil liability is not derived
from or based on the criminal act Section 4. Effect of death on civil
of which the accused is acquitted actions.
(Sapiera vs. Court of Appeals,
314 SCRA 370). AFTER arraignment and during the
pendency of the criminal action -
 Extinction of the penal action extinguishes the civil liability arising from
do
esnot carry with it the extinction of the the delict.
civil action, UNLESS the extinction
proceeds from a declaration in a final BEFORE arraignment - the case shall be
judgment that the fact from which the DSMISSED without prejudice to any civil
civil liability might arise did not exist. action the offended party may file against
the estate of the deceased.
 The extinction of the civil
liability refers exclusively to civil liability  However, the independent
arising from crime; whereas, the civil civil action instituted under Section 3 of
liability for the same act considered as this Rule or which thereafter is
a quasi- delict is not extinguished even instituted to enforce liability arising
by a declaration in the criminal case from other sources of obligation may be
that the criminal act charged has not continued against the estate or
happened or has not been committed by legal representative of the accused
the accused. after
crime has been committed and that the
proper substitution or against said estate, respondent is probably guilty thereof, and
as the case may be. should be held for trial. (Sec. 1, Rule 112)

Section 7. Elements of prejudicial Preliminary Investigation is required to be


question. conducted BEFORE the filing of a
complaint or information for an offense
Prejudicial Question - that which arises where the penalty prescribed by law is at
in a case, the resolution of which is the least 4 years, 2 months and 1 day without
logical antecedent of the issue involved regard to the fine.
therein, and the cognizance of which
pertains to another tribunal. It must be There is NO right of preliminary
determinative of the case before the investigation under Section 7, Rule 112
court but the jurisdiction to try and when a person is LAWFULLY arrested
resolve the question must be lodged in unless there is a waiver of the provisions
another court or tribunal. of Article 125 of the Revised Penal Code.

Rationale: to avoid two conflicting HOWEVER, the accused can ask for
decisions. Preliminary Investigation in the following
cases:
ELEMENTS OF A PREJUDICIAL 1. if a person is arrested, he can ask
QUESTION for preliminary investigation
1. The civil action must be BEFORE the filing of the
instituted prior to the criminal complaint/information BUT he
action. must sign a waiver in accordance
2. The civil action involves an issue with Article 125, RPC.
similar or intimately related to 2. AFTER the filing of the
the issue raised in the criminal information/complaint, the
action. accused may, within 5 days from
3. The resolution of such issue the time he learns of its filing ask
determines whether or not the for preliminary investigation.
criminal action may proceed.
PURPOSES
WHERE TO FILE PETITION FOR 1. to determine whether a crime has
SUSPENSION BY REASON OF been committed and whether
PREJUDICIAL QUESTION there is probable cause to believe
1. Office of the prosecutor; or that the accused is guilty thereof;
2. court conducting the preliminary 2. to preserve evidence and keep
investigation; or the witnesses within the control
3. court where the criminal action of the State;
has been filed for trial at any 3. to determine the amount of bail,
time before the prosecution if the offense is bailable.
rests.
PRELIMINARY INVESTIGATION:
PERSONAL STATUTORY RIGHT
RULE 112 The right to preliminary investigation is a
PRELIMINARY INVESTIGATION personal right covered by statute and may
be waived expressly or by implication.
Section 1. Preliminary Investigation
defined; when required. Absence of preliminary investigation does
not affect the jurisdiction of the
Preliminary Investigation - is an inquiry
or proceeding to determine whether
there exists sufficient ground to engender
a well-founded belief that a
Section 3. Procedure
court or invalidate the information if no
objection was raised by the accused.
Filing of the complaint
REMEDIES OF THE ACCUSED IF THERE accompanied by the affidavits
WAS NO PRELIMINARY INVESTIGATION and supporting documents.
1. Refuse to enter a plea upon
arraignment and object to
further proceedings upon such Within 10 days after the filing, the
ground investigating officer shall either
2. Insist on a preliminary dismiss or issue subpoena.
investigation
3. File a certiorari, if refused
4. Raise lack of preliminary If subpoena is issued,
investigation as error on appeal respondent shall submit a
counter-affidavit and other
5. File for prohibition
supporting documents within
10 days from receipt thereof.
As preliminary investigation is NOT a part
of the trial, the dismissal of the case by
the investigator will not constitute double
Hearing (optional). It shall be held
jeopardy and will not bar the filing of
within 10 days from submission of
another complaint for the same offense, counter-affidavits or from the
but if re-filed, the accused is entitled to expiration of the period of their
another preliminary investigation (U.S. submission.
vs. Marfori, 35 Phil. 666).

Section 2. Officers authorized to


Resolution of
conduct preliminary investigation. investigating prosecutor

PERSONS AUTHORIZED TO CONDUCT A If respondent cannot be subpoenaed, or if


PRELIMINARY INVESTIGATION subpoenaed but does not submit his
1. Provincial or city fiscal and their counter-affidavit within 10 days,
assistants investigating officer shall resolve the
2. Judges of the MTC and MCTC complaint based on the evidence
3. National and regional state presented by the complainant.
prosecutors
4. Such other officers as may be RIGHTS OF RESPONDENT IN A
authorized by law such as: the PRELIMINARY INVESTIGATION
COMELEC, Ombudsman and PCGG 1. to submit counter-affidavits
2. to examine evidence submitted
by the complainant
3. to be present in the clarificatory
hearing.
 In either situation, the MTC
The Rules do not require the presence of is authorized to issue a warrant of arrest
the respondent in the Preliminary if there is necessity of placing the
Investigation, what is required is that he respondent under immediate custody,
be given the opportunity to controvert in order not to frustrate the ends of
the evidence of the complainant by justice.
submitting counter-affidavits.
CONDITIONS BEFORE THE
Section 6. When warrant of arrest may INVESTIGATING MUNICIPAL TRIAL JUDGE
issue CAN ISSUE A WARRANT OF
Probable Cause - presupposes a ARREST (Herrera, p. 282)
reasonable ground for belief in the 1. Have examined in writing and
existence of facts warranting the under oath the complainant and
proceedings complained of; his witnesses by searching
- an apparent state questions and answers; searching
of facts found to exist upon reasonable questions and answers – such
inquiry which would induce a reasonably questions as may have the
intelligent and prudent man to believe tendency to show the commission
that the accused person had committed of the crime and the perpetrator
the crime charged. thereof;
2. Be satisfied that a probable cause
If the judge finds probable cause, he shall exists; and
issue a warrant of arrest, or a 3. That there is a need to place the
commitment order if the accused had respondent under immediate
already been arrested and hold him for custody in order not to frustrate
trial. If the judge is satisfied that there is the ends of justice.
no necessity for placing the accused
under custody, he may issue summons  If the MTC judge found
instead of warrant of arrest. probablecause but did not believe that
the aforesaid conditions were met, he
The RTC judge need NOT personally cannot be compelled by mandamus to
examine the complaint and witnesses in issue the same.
the determination of probable cause for
the issuance of the warrant of arrest. He REMEDY: The provincial fiscal, if he
is only required to: believes that the accused should be
1. Personally evaluate the report immediately placed in custody, may file
and the supporting documents the corresponding information so that the
submitted during the preliminary RTC may issue the necessary warrant of
investigation by the fiscal; and arrest (Samulde vs. Salvani, Jr., G.R. No.
2. On the basis thereof he may: 78606, Sept. 26, 1988).
a) Dismiss;
b) Issue warrant; or While the judge may rely on the fiscal’s
c) Require further affidavits. certification thereof, the same is NOT
conclusive on him as the issuance of said
INSTANCES WHEN MTC MAY CONDUCT warrant calls for the exercise of judicial
PRELIMINARY INVESTIGATION: discretion and, for that purpose, the
1. cases cognizable by the RTC may judge may require the submission of
be filed with the MTC for affidavits of witnesses to aid him in
preliminary investigation; arriving at the proper conclusion, OR he
2. cases cognizable by the MTC may require the fiscal to conduct further
because it is an offense where the preliminary investigation or
penalty prescribed by law is at reinvestigation.
least four (4) years, two (2)
months and one (1) day without
regard to the fine.
the accused until the prosecutor shall
INSTANCES WHEN WARRANT OF ARREST have conducted and made a report on the
NOT NECESSARY result of such reinvestigation.
1. if the accused is already under
detention; The right to bail pending Preliminary
2. if the complaint or information Investigation under Section 7, Rule 112, a
was filed after the accused was person lawfully arrested may post bail
lawfully arrested without before the filing of the information or
warrant; even after its filing without waiving his
3. if the offense is punishable by right to preliminary investigation,
fine only. provided that he asks for a preliminary
investigation by the proper officer within
Section 7. When accused lawfully the period fixed in the said rule (People
arrested without warrant. vs. Court of Appeals, May 29, 1995).

TWO SITUATIONS CONTEMPLATED Section 8. Records


UNDER THIS RULE:
1. When a person is lawfully Records of the preliminary investigation
arrested without a warrant for an shall NOT automatically form part of the
offense requiring a preliminary records of the case. Courts are not
investigation (sec. 1, Rule 112) compelled to take judicial notice thereof.
and no complaint or information It must be introduced as an evidence.
has yet been filed, he may ask for
a preliminary investigation by Section 9. Cases not requiring a
signing a waiver of the provisions preliminary investigation nor covered
of Art. 125 of the RPC in the by the Rule on Summary Procedure.
presence of his counsel.
2. When the complaint or PROCEDURE TO BE FOLLOWED IN CASES
information was filed without WHICH DO NOT REQUIRE PRELIMINARY
preliminary investigation, the INVESTIGATION
accused may, within 5 days from
the time he learns of the filing of 1. Evaluate the evidence presented
the information, ask for a 2. Conduct searching questions or
preliminary investigation with answers
the same right to adduce 3. Require the submission of
evidence in his favor in the additional evidence
manner prescribed in this Rule.
 For cases under the Revised
The 5-day period is MANDATORY, failure Rules on Summary Procedure, no warrant
to file the motion within the said period shall be issued except where the accused
amounts to waiver of the right to ask for fails to appear after being summoned.
preliminary investigation.
If the complaint is filed with the
Where the information was amended prosecutor involving an offense
without a new preliminary investigation punishable by imprisonment of less than
having been conducted, the 5-day period 4 years, 2 months and 1 day, the
is computed from the time the accused procedure in Rule 112, Section 3 (a) shall
learns of the filing of said amended be observed.
information.
If the complaint is filed with the MTC, the
Where the trial court has granted a same procedure under Rule 112, Section
motion for reinvestigation, it must hold in 3 (a) shall be observed.
abeyance the arraignment and trial of
prosecuted under the direction and control of the
RULE 110 prosecutor. However, in Municipal Trial Courts
or Municipal Circuit Trial Courts when the
Prosecution of Offenses prosecutor assigned thereto or to the case is not
available, the offended party, any peace officer,
or public officer charged with the enforcement of
Section 1. Institution of criminal actions. —
the law violated may prosecute the case. This
Criminal actions shall be instituted as
authority cease upon actual intervention of the
follows:
prosecutor or upon elevation of the case to the
Regional Trial Court. (This Section was repealed by A.M. No.
(a) For offenses where a preliminary 02-2-07-SC effective May 1, 2002)

investigation is required pursuant to


section 1 of Rule 112, by filing the The crimes of adultery and concubinage shall
complaint with the proper officer for not be prosecuted except upon a complaint filed
the purpose of conducting the by the offended spouse. The offended party
requisite preliminary investigation. cannot institute criminal prosecution without
including the guilty parties, if both alive, nor, in
(b) For all other offenses, by filing any case, if the offended party has consented to
the complaint or information directly the offense or pardoned the offenders.
with the Municipal Trial Courts and
Municipal Circuit Trial Courts, or the The offenses of seduction, abduction and acts
complaint with the office of the of lasciviousness shall not be prosecuted except
prosecutor. In Manila and other upon a complaint filed by the offended party or
chartered cities, the complaint shall her parents, grandparents or guardian, nor, in
be filed with the office of the any case, if the offender has been expressly
prosecutor unless otherwise pardoned by any of them. If the offended party
provided in their charters. dies or becomes incapacitated before she can
file the complaint, and she has no known
The institution of the criminal action shall parents, grandparents or guardian, the State
interrupt the running period of prescription of shall initiate the criminal action in her behalf.
the offense charged unless otherwise
provided in special laws. (1a) The offended party, even if a minor, has the right
to initiate the prosecution of the offenses of
Section 2. The Complaint or information. — seduction, abduction and acts of lasciviousness
The complaint or information shall be in independently of her parents, grandparents, or
writing, in the name of the People of the guardian, unless she is incompetent or
Philippines and against all persons who incapable of doing so. Where the offended
appear to be responsible for the offense party, who is a minor, fails to file the complaint,
involved. (2a) her parents, grandparents, or guardian may file
the same. The right to file the action granted to
Section 3. Complaint defined. — A parents, grandparents or guardian shall be
complaint is a sworn written statement exclusive of all other persons and shall be
charging a person with an offense, exercised successively in the order herein
subscribed by the offended party, any peace provided, except as stated in the preceding
officer, or other public officer charged with paragraph.
the enforcement of the law violated. (3)
No criminal action for defamation which consists
Section 4. Information defined. — An in the imputation of the offenses mentioned
information is an accusation in writing above shall be brought except at the instance of
charging a person with an offense, and upon complaint filed by the offended party.
subscribed by the prosecutor and filed with (5a)
the court. (4a)
The prosecution for violation of special laws
Section 5. Who must prosecute criminal shall be governed by the provisions thereof. (n)
actions. — All criminal actions commenced
by a complaint or information shall be
Section 6. Sufficiency of complaint or allegations that the offense was committed or
information. — A complaint or information is some of the essential ingredients occurred at
sufficient if it states the name of the some place within the jurisdiction of the court,
accused; the designation of the offense unless the particular place where it was
given by the statute; the acts or omissions committed constitutes an essential element of
complained of as constituting the offense; the offense or is necessary for its identification.
the name of the offended party; the (10a)
approximate date of the commission of the
offense; and the place where the offense Section 11. Date of commission of the offense.
was committed. — It is not necessary to state in the complaint or
information the precise date the offense was
When an offense is committed by more than committed except when it is a material
one person, all of them shall be included in ingredient of the offense. The offense may be
the complaint or information. (6a) alleged to have been committed on a date as
near as possible to the actual date of its
Section 7. Name of the accused. — The commission. (11a)
complaint or information must state the
name and surname of the accused or any Section 12. Name of the offended party. — The
appellation or nickname by which he has complaint or information must state the name
been or is known. If his name cannot be and surname of the person against whom or
ascertained, he must be described under a against whose property the offense was
fictitious name with a statement that his true committed, or any appellation or nickname by
name is unknown. which such person has been or is known. If there
is no better way of identifying him, he must be
If the true name of the accused is thereafter described under a fictitious name.
disclosed by him or appears in some other
manner to the court, such true name shall (a) In offenses against property, if the
be inserted in the complaint or information name of the offended party is unknown,
and record. (7a) the property must be described with
such particularity as to properly identify
Section 8. Designation of the offense. — the offense charged.
The complaint or information shall state the
designation of the offense given by the (b) If the true name of the of the person
statute, aver the acts or omissions against whom or against whose properly
constituting the offense, and specify its the offense was committed is thereafter
qualifying and aggravating circumstances. If disclosed or ascertained, the court must
there is no designation of the offense, cause the true name to be inserted in the
reference shall be made to the section or complaint or information and the record.
subsection of the statute punishing it. (8a)
(c) If the offended party is a juridical
Section 9. Cause of the accusation. — The person, it is sufficient to state its name,
acts or omissions complained of as or any name or designation by which it
constituting the offense and the qualifying is known or by which it may be identified,
and aggravating circumstances must be without need of averring that it is a
stated in ordinary and concise language and juridical person or that it is organized in
not necessarily in the language used in the accordance with law. (12a)
statute but in terms sufficient to enable a
person of common understanding to know Section 13. Duplicity of the offense. — A
what offense is being charged as well as its complaint or information must charge but one
qualifying and aggravating circumstances offense, except when the law prescribes a single
and for the court to pronounce judgment. punishment for various offenses. (13a)
(9a)
Section 14. Amendment or substitution. — A
Section 10. Place of commission of the complaint or information may be amended, in
offense. — The complaint or information is form or in substance, without leave of court, at
sufficient if it can be understood from its any time before the accused enters his plea.
After the plea and during the trial, a formal subject to the generally accepted
amendment may only be made with leave of principles of international law.
court and when it can be done without
causing prejudice to the rights of the (d) Crimes committed outside the
accused. Philippines but punishable under Article
2 of the Revised Penal Code shall be
However, any amendment before plea, cognizable by the court where the
which downgrades the nature of the offense criminal action is first filed. (15a)
charged in or excludes any accused from
the complaint or information, can be made Section 16. Intervention of the offended party in
only upon motion by the prosecutor, with criminal action. — Where the civil action for
notice to the offended party and with leave recovery of civil liability is instituted in the
of court. The court shall state its reasons in criminal action pursuant to Rule 111, the
resolving the motion and copies of its order offended party may intervene by counsel in the
shall be furnished all parties, especially the prosecution of the offense. (16a)
offended party. (n)

If it appears at any time before judgment that


a mistake has been made in charging the
proper offense, the court shall dismiss the RULE 111
original complaint or information upon the
filing of a new one charging the proper
Prosecution of Civil Action
offense in accordance with section 19, Rule
119, provided the accused shall not be
placed in double jeopardy. The court may Section 1. Institution of criminal and civil
require the witnesses to give bail for their actions. — (a) When a criminal action is
appearance at the trial. (14a) instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be
deemed instituted with the criminal action unless
Section 15. Place where action is to be
the offended party waives the civil action,
instituted. —
reserves the right to institute it separately or
institutes the civil action prior to the criminal
(a) Subject to existing laws, the action.
criminal action shall be instituted
and tried in the court of the
The reservation of the right to institute
municipality or territory where the
separately the civil action shall be made before
offense was committed or where
the prosecution starts presenting its evidence
any of its essential ingredients
and under circumstances affording the offended
occurred.
party a reasonable opportunity to make such
reservation.
(b) Where an offense is committed
in a train, aircraft, or other public or
When the offended party seeks to enforce civil
private vehicle while in the course of
liability against the accused by way of moral,
its trip, the criminal action shall be
nominal, temperate, or exemplary damages
instituted and tried in the court of
without specifying the amount thereof in the
any municipality or territory where
complaint or information, the filing fees thereof
such train, aircraft or other vehicle
shall constitute a first lien on the judgment
passed during such its trip, including
awarding such damages.
the place of its departure and arrival.
Where the amount of damages, other than
(c) Where an offense is committed
actual, is specified in the complaint or
on board a vessel in the course of its
information, the corresponding filing fees shall
voyage, the criminal action shall be
be paid by the offended party upon the filing
instituted and tried in the court of the
thereof in court.
first port of entry or of any
municipality or territory where the
vessel passed during such voyage,
Except as otherwise provided in these merits is rendered in the civil action, the same
Rules, no filing fees shall be required for may, upon motion of the offended party, be
actual damages. consolidated with the criminal action in the court
trying the criminal action. In case of
No counterclaim, cross-claim or third-party consolidation, the evidence already adduced in
complaint may be filed by the accused in the the civil action shall be deemed automatically
criminal case, but any cause of action which reproduced in the criminal action without
could have been the subject thereof may be prejudice to the right of the prosecution to cross-
litigated in a separate civil action. (1a) examine the witnesses presented by the
offended party in the criminal case and of the
(b) The criminal action for violation of Batas parties to present additional evidence. The
Pambansa Blg. 22 shall be deemed to consolidated criminal and civil actions shall be
include the corresponding civil action. No tried and decided jointly.
reservation to file such civil action
separately shall be allowed. During the pendency of the criminal action, the
running of the period of prescription of the civil
Upon filing of the aforesaid joint criminal and action which cannot be instituted separately or
civil actions, the offended party shall pay in whose proceeding has been suspended shall be
full the filing fees based on the amount of the tolled. (n)
check involved, which shall be considered
as the actual damages claimed. Where the The extinction of the penal action does not carry
complaint or information also seeks to with it extinction of the civil action. However, the
recover liquidated, moral, nominal, civil action based on delict shall be deemed
temperate or exemplary damages, the extinguished if there is a finding in a final
offended party shall pay additional filing fees judgment in the criminal action that the act or
based on the amounts alleged therein. If the omission from which the civil liability may arise
amounts are not so alleged but any of these did not exist. (2a)
damages are subsequently awarded by the
court, the filing fees based on the amount Section 3. When civil action may proceeded
awarded shall constitute a first lien on the independently. — In the cases provided for in
judgment. Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may
Where the civil action has been filed be brought by the offended party. It shall
separately and trial thereof has not yet proceed independently of the criminal action
commenced, it may be consolidated with the and shall require only a preponderance of
criminal action upon application with the evidence. In no case, however, may the
court trying the latter case. If the application offended party recover damages twice for the
is granted, the trial of both actions shall same act or omission charged in the criminal
proceed in accordance with section 2 of this action. (3a)
Rule governing consolidation of the civil and
criminal actions. (cir. 57-97) Section 4. Effect of death on civil actions. —
The death of the accused after arraignment and
Section 2. When separate civil action is during the pendency of the criminal action shall
suspended. — After the criminal action has extinguish the civil liability arising from the delict.
been commenced, the separate civil action However, the independent civil action instituted
arising therefrom cannot be instituted until under section 3 of this Rule or which thereafter
final judgment has been entered in the is instituted to enforce liability arising from other
criminal action. sources of obligation may be continued against
the estate or legal representative of the accused
If the criminal action is filed after the said after proper substitution or against said estate,
civil action has already been instituted, the as the case may be. The heirs of the accused
latter shall be suspended in whatever stage may be substituted for the deceased without
it may be found before judgment on the requiring the appointment of an executor or
merits. The suspension shall last until final administrator and the court may appoint a
judgment is rendered in the criminal action. guardian ad litem for the minor heirs.
Nevertheless, before judgment on the
The court shall forthwith order said legal crime has been committed and the respondent
representative or representatives to appear is probably guilty thereof, and should be held for
and be substituted within a period of thirty trial.
(30) days from notice.
Except as provided in section 7 of this Rule, a
A final judgment entered in favor of the preliminary investigation is required to be
offended party shall be enforced in the conducted before the filing of a complaint or
manner especially provided in these rules information for an offense where the penalty
for prosecuting claims against the estate of prescribed by law is at least four (4) years, two
the deceased. (2) months and one (1) day without regard to the
fine. (1a)
If the accused dies before arraignment, the
case shall be dismissed without prejudice to Section 2. Officers authorized to conduct
any civil action the offended party may file preliminary investigations. —
against the estate of the deceased. (n)
The following may conduct preliminary
Section 5. Judgment in civil action not a bar. investigations:
— A final judgment rendered in a civil action
absolving the defendant from civil liability is (a) Provincial or City Prosecutors and
not a bar to a criminal action against the their assistants;
defendant for the same act or omission
subject of the civil action. (4a) (b) Judges of the Municipal Trial Courts
and Municipal Circuit Trial Courts;
Section 6. Suspension by reason of
prejudicial question. — A petition for (c) National and Regional State
suspension of the criminal action based Prosecutors; and
upon the pendency of a prejudicial question
in a civil action may be filed in the office of
(d) Other officers as may be authorized
the prosecutor or the court conducting the
by law.
preliminary investigation. When the criminal
action has been filed in court for trial, the
petition to suspend shall be filed in the same Their authority to conduct preliminary
criminal action at any time before the investigations shall include all crimes cognizable
prosecution rests. (6a) by the proper court in their respective territorial
jurisdictions. (2a)
Section 7. Elements of prejudicial question.
— The elements of a prejudicial question Section 3. Procedure. — The preliminary
are: (a) the previously instituted civil action investigation shall be conducted in the following
involves an issue similar or intimately manner:
related to the issue raised in the subsequent
criminal action, and (b) the resolution of (a) The complaint shall state the address
such issue determines whether or not the of the respondent and shall be
criminal action may proceed. (5a) accompanied by the affidavits of the
complainant and his witnesses, as well
as other supporting documents to
establish probable cause. They shall be
in such number of copies as there are
respondents, plus two (2) copies for the
RULE 112
official file. The affidavits shall be
subscribed and sworn to before any
Preliminary Investigation prosecutor or government official
authorized to administer oath, or, in their
Section 1. Preliminary investigation absence or unavailability, before a
defined; when required. — Preliminary notary public, each of who must certify
investigation is an inquiry or proceeding to that he personally examined the affiants
determine whether there is sufficient ground and that he is satisfied that they
to engender a well-founded belief that a
voluntarily executed and understood (e) The investigating officer may set a
their affidavits. hearing if there are facts and issues to
be clarified from a party or a witness.
(b) Within ten (10) days after the The parties can be present at the
filing of the complaint, the hearing but without the right to examine
investigating officer shall either or cross-examine. They may, however,
dismiss it if he finds no ground to submit to the investigating officer
continue with the investigation, or questions which may be asked to the
issue a subpoena to the respondent party or witness concerned.
attaching to it a copy of the
complaint and its supporting The hearing shall be held within ten (10)
affidavits and documents. days from submission of the counter-
affidavits and other documents or from
The respondent shall have the right the expiration of the period for their
to examine the evidence submitted submission. It shall be terminated within
by the complainant which he may five (5) days.
not have been furnished and to copy
them at his expense. If the evidence (f) Within ten (10) days after the
is voluminous, the complainant may investigation, the investigating officer
be required to specify those which shall determine whether or not there is
he intends to present against the sufficient ground to hold the respondent
respondent, and these shall be for trial. (3a)
made available for examination or
copying by the respondent at his Section 4. Resolution of investigating
expense. prosecutor and its review. — If the investigating
prosecutor finds cause to hold the respondent
Objects as evidence need not be for trial, he shall prepare the resolution and
furnished a party but shall be made information. He shall certify under oath in the
available for examination, copying, information that he, or as shown by the record,
or photographing at the expense of an authorized officer, has personally examined
the requesting party. the complainant and his witnesses; that there is
reasonable ground to believe that a crime has
(c) Within ten (10) days from receipt been committed and that the accused is
of the subpoena with the complaint probably guilty thereof; that the accused was
and supporting affidavits and informed of the complaint and of the evidence
documents, the respondent shall submitted against him; and that he was given an
submit his counter-affidavit and that opportunity to submit controverting evidence.
of his witnesses and other Otherwise, he shall recommend the dismissal of
supporting documents relied upon the complaint.
for his defense. The counter-
affidavits shall be subscribed and Within five (5) days from his resolution, he shall
sworn to and certified as provided in forward the record of the case to the provincial
paragraph (a) of this section, with or city prosecutor or chief state prosecutor, or to
copies thereof furnished by him to the Ombudsman or his deputy in cases of
the complainant. The respondent offenses cognizable by the Sandiganbayan in
shall not be allowed to file a motion the exercise of its original jurisdiction. They shall
to dismiss in lieu of a counter- act on the resolution within ten (10) days from
affidavit. their receipt thereof and shall immediately
inform the parties of such action.
(d) If the respondent cannot be
subpoenaed, or if subpoenaed, No complaint or information may be filed or
does not submit counter-affidavits dismissed by an investigating prosecutor
within the ten (10) day period, the without the prior written authority or approval of
investigating officer shall resolve the the provincial or city prosecutor or chief state
complaint based on the evidence prosecutor or the Ombudsman or his deputy.
presented by the complainant.
Where the investigating prosecutor and clearly state the facts and the law on which
recommends the dismissal of the complaint it is based and the parties shall be furnished with
but his recommendation is disapproved by copies thereof. They shall order the release of
the provincial or city prosecutor or chief an accused who is detained if no probable cause
state prosecutor or the Ombudsman or his is found against him. (5a)
deputy on the ground that a probable cause
exists, the latter may, by himself, file the Section 6. When warrant of arrest may issue. —
information against the respondent, or direct (a) By the Regional Trial Court. — Within ten
any other assistant prosecutor or state (10) days from the filing of the complaint or
prosecutor to do so without conducting information, the judge shall personally evaluate
another preliminary investigation. the resolution of the prosecutor and its
supporting evidence. He may immediately
If upon petition by a proper party under such dismiss the case if the evidence on record
rules as the Department of Justice may clearly fails to establish probable cause. If he
prescribe or motu proprio, the Secretary of finds probable cause, he shall issue a warrant of
Justice reverses or modifies the resolution arrest, or a commitment order if the accused has
of the provincial or city prosecutor or chief already been arrested pursuant to a warrant
state prosecutor, he shall direct the issued by the judge who conducted the
prosecutor concerned either to file the preliminary investigation or when the complaint
corresponding information without or information was filed pursuant to section 7 of
conducting another preliminary this Rule. In case of doubt on the existence of
investigation, or to dismiss or move for probable cause, the judge may order the
dismissal of the complaint or information prosecutor to present additional evidence within
with notice to the parties. The same rule five (5) days from notice and the issue must be
shall apply in preliminary investigations resolved by the court within thirty (30) days from
conducted by the officers of the Office of the the filing of the complaint of information.
Ombudsman. (4a)
(b) By the Municipal Trial Court. — When
Section 5. Resolution of investigating judge required pursuant to the second paragraph of
and its review. — Within ten (10) days after section 1 of this Rule, the preliminary
the preliminary investigation, the investigation of cases falling under the original
investigating judge shall transmit the jurisdiction of the Metropolitan Trial Court,
resolution of the case to the provincial or city Municipal Trial Court in Cities, Municipal Trial
prosecutor, or to the Ombudsman or his Court, or Municipal Circuit Trial Court may be
deputy in cases of offenses cognizable by conducted by either the judge or the prosecutor.
the Sandiganbayan in the exercise of its When conducted by the prosecutor, the
original jurisdiction, for appropriate action. procedure for the issuance of a warrant or arrest
The resolution shall state the findings of by the judge shall be governed by paragraph (a)
facts and the law supporting his action, of this section. When the investigation is
together with the record of the case which conducted by the judge himself, he shall follow
shall include: (a) the warrant, if the arrest is the procedure provided in section 3 of this Rule.
by virtue of a warrant; (b) the affidavits, If the findings and recommendations are
counter-affidavits and other supporting affirmed by the provincial or city prosecutor, or
evidence of the parties; (c) the undertaking by the Ombudsman or his deputy, and the
or bail of the accused and the order for his corresponding information is filed, he shall issue
release; (d) the transcripts of the a warrant of arrest. However, without waiting for
proceedings during the preliminary the conclusion of the investigation, the judge
investigation; and (e) the order of may issue a warrant of arrest if he finds after an
cancellation of his bail bond, if the resolution examination in writing and under oath of the
is for the dismissal of the complaint. complainant and his witnesses in the form of
searching question and answers, that a
Within thirty (30) days from receipt of the probable cause exists and that there is a
records, the provincial or city prosecutor, or necessity of placing the respondent under
the Ombudsman or his deputy, as the case immediate custody in order not to frustrate the
may be, shall review the resolution of the ends of justice.
investigating judge on the existence of
probable cause. Their ruling shall expressly
(c) When warrant of arrest not necessary. — (b) Record of preliminary investigation. — The
A warrant of arrest shall not issue if the record of the preliminary investigation, whether
accused is already under detention conducted by a judge or a fiscal, shall not form
pursuant to a warrant issued by the part of the record of the case. However, the
municipal trial court in accordance with court, on its own initiative or on motion of any
paragraph (b) of this section, or if the party, may order the production of the record or
complaint or information was filed pursuant any its part when necessary in the resolution of
to section 7 of this Rule or is for an offense the case or any incident therein, or when it is to
penalized by fine only. The court shall then be introduced as an evidence in the case by the
proceed in the exercise of its original requesting party. (8a)
jurisdiction. (6a)
Section 9. Cases not requiring a preliminary
Section 7. When accused lawfully arrested investigation nor covered by the Rule on
without warrant. — When a person is Summary Procedure. —
lawfully arrested without a warrant involving
an offense which requires a preliminary (a) If filed with the prosecutor. — If the
investigation, the complaint or information complaint is filed directly with the
may be filed by a prosecutor without need of prosecutor involving an offense
such investigation provided an inquest has punishable by imprisonment of less four
been conducted in accordance with existing (4) years, two (2) months and one (1)
rules. In the absence or unavailability of an day, the procedure outlined in section
inquest prosecutor, the complaint may be 3(a) of this Rule shall be observed. The
filed by the offended party or a peace office prosecutor shall act on the complaint
directly with the proper court on the basis of based on the affidavits and other
the affidavit of the offended party or supporting documents submitted by the
arresting officer or person. complainant within ten (10) days from its
filing.
Before the complaint or information is filed,
the person arrested may ask for a (b) If filed with the Municipal Trial Court.
preliminary investigation in accordance with — If the complaint or information is filed
this Rule, but he must sign a waiver of the directly with the Municipal Trial Court or
provisions of Article 125 of the Revised Municipal Circuit Trial Court for an
Penal Code, as amended, in the presence offense covered by this section, the
of his counsel. Notwithstanding the waiver, procedure in section 3(a) of this Rule
he may apply for bail and the investigation shall be observed. If within ten (10) days
must be terminated within fifteen (15) days after the filing of the complaint or
from its inception. information, the judge finds no probable
cause after personally evaluating the
After the filing of the complaint or evidence, or after personally examining
information in court without a preliminary in writing and under oath the
investigation, the accused may, within five complainant and his witnesses in the
(5) days from the time he learns of its filing, form of searching question and
ask for a preliminary investigation with the answers, he shall dismiss the same. He
same right to adduce evidence in his may, however, require the submission of
defense as provided in this Rule. (7a; sec. additional evidence, within ten (10) days
2, R.A. No. 7438) from notice, to determine further the
existence of probable cause. If the judge
Section 8. Records. — (a) Records still finds no probable cause despite the
supporting the information or complaint. — additional evidence, he shall, within ten
An information or complaint filed in court (10) days from its submission or
shall be supported by the affidavits and expiration of said period, dismiss the
counter-affidavits of the parties and their case. When he finds probable cause, he
witnesses, together with the other shall issue a warrant of arrest, or a
supporting evidence and the resolution on commitment order if the accused had
the case. already been arrested, and hold him for
trial. However, if the judge is satisfied
that there is no necessity for placing the
accused under custody, he may (b) When an offense has just been
issue summons instead of a warrant committed, and he has probable cause
of arrest. (9a) to believe based on personal knowledge
of facts or circumstances that the person
to be arrested has committed it; and

(c) When the person to be arrested is a


RULE 113 prisoner who has escaped from a penal
establishment or place where he is
Arrest serving final judgment or is temporarily
confined while his case is pending, or
has escaped while being transferred
Section 1. Definition of arrest. — Arrest is
from one confinement to another.
the taking of a person into custody in order
that he may be bound to answer for the
commission of an offense. (1) In cases falling under paragraph (a) and (b)
above, the person arrested without a warrant
shall be forthwith delivered to the nearest police
Section 2. Arrest; how made. — An arrest
station or jail and shall be proceeded against in
is made by an actual restraint of a person to
accordance with section 7 of Rule 112. (5a)
be arrested, or by his submission to the
custody of the person making the arrest.
Section 6. Time of making arrest. — An arrest
may be made on any day and at any time of the
No violence or unnecessary force shall be
day or night. (6)
used in making an arrest. The person
arrested shall not be subject to a greater
restraint than is necessary for his detention. Section 7. Method of arrest by officer by virtue
(2a) of warrant. — When making an arrest by virtue
of a warrant, the officer shall inform the person
to be arrested of the cause of the arrest and of
Section 3. Duty of arresting officer. — It
the fact that a warrant has been issued for his
shall be the duty of the officer executing the
arrest, except when he flees or forcibly resists
warrant to arrest the accused and to deliver
before the officer has opportunity to so inform
him to the nearest police station or jail
him, or when the giving of such information will
without unnecessary delay. (3a)
imperil the arrest. The officer need not have the
warrant in his possession at the time of the
Section 4. Execution of warrant. — The arrest but after the arrest, if the person arrested
head of the office to whom the warrant of so requires, the warrant shall be shown to him
arrest was delivered for execution shall as soon as practicable. (7a)
cause the warrant to be executed within ten
(10) days from its receipt. Within ten (10)
Section 8. Method of arrest by officer without
days after the expiration of the period, the
warrant. — When making an arrest without a
officer to whom it was assigned for
warrant, the officer shall inform the person to be
execution shall make a report to the judge
arrested of his authority and the cause of the
who issued the warrant. In case of his failure
arrest, unless the latter is either engaged in the
to execute the warrant, he shall state the
commission of an offense, is pursued
reasons therefor. (4a)
immediately after its commission, has escaped,
flees or forcibly resists before the officer has
Section 5. Arrest without warrant; when opportunity so to inform him, or when the giving
lawful. — A peace officer or a private person of such information will imperil the arrest. (8a)
may, without a warrant, arrest a person:
Section 9. Method of arrest by private person.
(a) When, in his presence, the — When making an arrest, a private person
person to be arrested has shall inform the person to be arrested of the
committed, is actually committing, or intention to arrest him and cause of the arrest,
is attempting to commit an offense; unless the latter is either engaged in the
commission of an offense, is pursued
immediately after its commission, or has
escaped, flees, or forcibly resists before the
person making the arrest has opportunity to
so inform him, or when the giving of such
information will imperil the arrest. (9a)

Section 10. Officer may summon


assistance. — An officer making a lawful
arrest may orally summon as many persons
as he deems necessary to assist him in
effecting the arrest. Every person so
summoned by an officer shall assist him in
effecting the arrest when he can render such
assistance without detriment to himself.
(10a)

Section 11. Right of officer to break into


building or enclosure. — An officer, in order
to make an arrest either by virtue of a
warrant, or without a warrant as provided in
section 5, may break into any building or
enclosure where the person to be arrested
is or is reasonably believed to be, if he is
refused admittance thereto, after
announcing his authority and purpose. (11a)

Section 12. Right to break out from building


or enclosure. — Whenever an officer has
entered the building or enclosure in
accordance with the preceding section, he
may break out therefrom when necessary to
liberate himself. (12a)

Section 13. Arrest after escape or rescue.


— If a person lawfully arrested escapes or
is rescued, any person may immediately
pursue or retake him without a warrant at
any time and in any place within the
Philippines. (13)

Section 14. Right of attorney or relative to


visit person arrested. — Any member of the
Philippine Bar shall, at the request of the
person arrested or of another acting in his
behalf, have the right to visit and confer
privately with such person in the jail or any
other place of custody at any hour of the
day or night. Subject to reasonable
regulations, a relative of the person
arrested can also exercise the same right.
(14a)