REVISED MANUAL
FOR PROSECUTORS
2017 EDITION
VOLUME 1
TABLE OF CONTENTS
Volume I
FOREWORD
ACKNOWLEDGEMENT
DEPARTMENT ORDER
xi
xii
xv
Chapter I PROSECUTION OF OFFENSES
1.1. General Principles
1
1
Chapter II SUMMARY INVESTIGATION
2.1. General Rules 3
2.1.1 Summary Investigation
2.1.2 Summary Procedure
2.2. Coverage
2.3. Procedure
3
Chapter III INQUEST PROCEEDINGS
3.1. General Principles
3.1.1 Concept
3.1.2 Coverage
3.1.3 Designation of an Inquest Prosecutor
3.14 Venue Of Inquest Cases
3.15 Date and Time of the
Conduct of Inquest Proceedings
3.2. Procedure
3.2.1 Commencement
3.2.2 Incomplete Documents
3.2.3 Instances Where the Presence of the
Detained Person is Dispensed with
3.2.4 Charges and Counter-Charges
3.2.5 Determination of the Arrest
by the Inquest Prosecutor
3.2.6 Where the Arrest of the Detained Person
Was Properly Effected
3.2.7 Where the Arrest of the Detained Person
Was Not Properly Effected
7
7
7
7
7
7
3
3
3
5
8
8
8
8
8
9
9
9
10
i
3.2.8 Release of Detained Person for Further
Investigation
3.3. Inquest Proper
3.3.1 Action To Be Taken When There is a Finding of
Probable Cause
3.3.2 Action To Be Taken When There is an
Absence of Probable Cause
3.3.3 Action To Be Taken When the Arrested
Person Executes a Waiver of Article 125 of the
Revised Penal Code
3.3.4 Contents of the Information
3.3.5 Delegation of Authority to Approve Information
3.3.6 Posting of Bail by the Arrested/Detained Person
10
3.4. Termination of Inquest Proceedings
3.4.1 Factors to be Considered in Determining
Whether or Not Article 125 of the Revised
Penal Code Has Been Violated
3.4.2 Applicability of the period prescribed in
Article 125 of the Revised Penal Code
3.4.3 For Dismissed Cases Subject For Automatic
Review By the Secretary of Justice
13
11
12
12
12
13
13
13
14
14
3.5. Other Matters
3.5.1 Presence of the Inquest
Prosecutor at the Crime Scene
3.5.2 Sandiganbayan Cases
3.5.3 Recovered Articles
3.5.3.1 Responsibility of the Inquest Prosecutor
3.5.3.2 Deposit of Recovered Articles/Properties
3.5.3.3 Release of Recovered Articles
15
3.6. Relevant Jurisprudence
17
Chapter IV PRELIMINARY INVESTIGATION
4.1. General Principles
4.1.1 Concept
4.1.2 Quantum of Evidence Required is Probable Cause
ii
10
15
16
16
16
16
16
22
22
22
22
4.1.3
No Fixed Formula for
Determining Probable Cause
Sound Discretion of the Prosecutor
23
24
4.2. Purposes of a Preliminary Investigation
4.2.1 Double Jeopardy in Preliminary Investigation
24
25
4.3. Nature of a Preliminary Investigation
4.3.1 It is an Executive Function
4.3.2 It is Preliminary in Nature
4.3.3 It is a Summary and Inquisitorial Proceeding
4.3.4 It is not a Judicial Inquiry or Proceeding
25
25
25
25
26
4.4. Right to Preliminary Investigation
4.4.1 It is Not a Constitutional Right
4.4.2 It is Merely a Statutory Grant
4.4.3 It is a Personal Right
4.4.4 It is a Substantive Right
26
26
26
26
27
4.5. Coverage
27
4.6. Officers Authorized to Conduct
Preliminary Investigations
27
4.1.4
4.7. Procedure
4.7.1 Commencement of the Preliminary Investigation
4.7.2 Contents of the Complaint
4.7.3 Number of Copies of Affidavits; Other Requirements
4.7.4 Initial Action by the Investigating Prosecutor
on the Complaint Filed
4.7.5 Service of Subpoena to the Parties
4.7.5.1 To Prevent Loss of Documents
4.7.5.2 Service to a Respondent Residing in a
Distant Place
4.7.5.3 Where Respondent Cannot Be Subpoenaed
or if Subpoenaed Does Not Submit
Counter-Affidavit
4.7.5.4 Objects as Evidence
4.7.6 Submission of the Counter-Affidavit/s
by the Respondent/s
28
28
29
29
30
32
33
34
34
34
35
iii
4.7.7
4.7.8
4.7.9
4.7.10
4.7.11
4.7.12
4.7.13
4.7.14
4.7.15
4.7.16
4.7.17
4.7.18
4.7.19
4.7.20
4.7.21
4.7.22
iv
4.7.6.1 Extension of Time Within Which to
Submit Respondent’s Counter-Affidavit
4.7.6.2 Filing of a Motion To Dismiss in Lieu
of a Counter-Affidavit
Suspension of Proceedings Due to the Existence of a
Prejudicial Question
4.7.7.1 Concept
4.7.7.2 Elements of a Prejudicial Question
4.7.7.3 Issuance of an Order Suspending the
Proceeding Due to the Existence of a
Prejudicial Question; Written Approval
of the Head of Office Required
When to Set Case for Clarificatory Questioning
4.7.8.1 No Right to Examine or Cross-Examine
4.7.8.2 Record/Notes During the Clarificatory
Hearing
4.7.8.3 Right to Counsel
When to Allow the Filing of Reply-Affidavits,
Rejoinders and Memoranda
When Complaints May be Consolidated
Submission of the Case For Resolution
Preparation of the Resolution
Form of the Resolution and
Number of Copies
Period to Conduct the Preliminary Investigation
Transmittal of the Recommendatory
Resolution and Information Together with the
Complete Record of the Case
Preparation of the Information
Form of the Information
Sufficiency of the Information
Documents to be Attached to the Information
Confidentiality of Resolutions
Action of the Prosecutor General or
Provincial/City Prosecutor on the
Recommendatory Resolution
Re-Opening of the Preliminary Investigation
35
35
37
37
38
38
38
39
39
39
39
40
40
41
42
45
46
46
46
47
50
50
51
51
4.7.23
4.7.24
4.7.25
4.7.26
Promulgation of the Resolution; Modes of Service
Rules in Filing of Information in Court
On a Motion for Reconsideration
Action on a Reinvestigation
4.7.26.1 Instances When a Reinvestigation
May Be Conducted
4.8. Relevant Jurisprudence
52
52
53
53
54
55
Chapter V ARREST
5.1. Remedy of the Prosecutor When No
Warrant of Arrest Was Issued by the Judge
5.2. Request for a Copy of the Return
5.3. Relevant Jurisprudence
59
Chapter VI BAIL
6.1. Concept
6.1.1 Purpose of Bail
6.1.2 Nature of the Right to Bail
6.1.3 Basis of Bail
6.1.4 Bail, a Matter of Right
6.1.5 Bail, When Discretionary
6.1.6 When Bail is not Required
6.2. Duties of a Prosecutor
61
61
61
61
61
61
61
59
59
59
62
65
6.3. Right to Notice
65
6.4. Right to Bail in Inquest Cases
65
6.5. Posting of Bail by the Arrested/Detained Person
66
6.6. Criteria in Recommending the Amount of Bail
66
6.7. Rules in Computing the Bail To Be Recommended
67
6.8. Hearing on Petition for Bail is Required in
Non-Bailable Offenses
6.8.1 Exception
69
69
6.9. Right of the Prosecution to Present All
Evidence During the Bail Hearing
69
6.10. Effect of a Denial of the Opportunity to Present
Evidence for Purposes of the Petition for Bail
69
v
6.11. Petition for Bail in Continuous Trial
6.12. Cancellation of the Bail Bond
6.13. Other Matters 71
6.13.1 Release on Recognizance; Guidelines
6.13.2 Requirements for the Grant of Recognizance
Under Republic Act No. 6036
6.14. Relevant Jurisprudence
69
70
70
71
71
Chapter VII ARRAIGNMENT
7.1. Concept
7.2. Duties of the Trial Prosecutor
7.3. Relevant Jurisprudence
73
73
73
74
Chapter VIII
8.1. Concept
75
75
PLEA BARGAINING
8.2. Applicable Rules
8.2.1 Plea Bargaining Except in Drug Cases
8.2.2 Plea of Guilt to the Crime Charged
in the Information
8.2.3 Where No Plea Bargaining or
Plea Of Guilt Takes Place
8.2.4 When the Accused Pleads
Guilty to a Lesser Offense
8.2.5 When a Plea of Guilty is Allowed
8.2.6 When a Plea Of Guilty to a Lesser Offense is
Not Allowed
8.2.7 When Accused Pleads Guilty to a Capital Offense
8.3. Relevant Jurisprudence
75
75
75
76
76
77
77
77
77
Chapter IX PRE-TRIAL CONFERENCE
9.1. Concept
9.2. Guidelines Under the Continuous Trial of
Criminal Cases
79
79
9.3. Subject Matters of a Pre-Trial Conference
80
9.4. Non-Appearance at the Pre-Trial Conference
81
9.5. Duties of the Prosecutor
81
vi
79
Chapter X TRIAL
10.1. Concept
83
83
10.2. Trial Preparation
83
10.3. Going to Trial
10.3.1 Concept
10.3.2 Order of the Presentation of Witnesses
10.3.3 Offer of Exhibit
10.3.4 Defense Evidence
10.3.5 Admission to the Witness Protection Program
of an Accused Who Has Been Discharged
10.3.6 Other Persons Who May Avail of the
Witness Protection Program
10.3.7 Discharge of Accused to be State Witness
10.3.8 Motions for Postponement by the Accused
10.3.9 Discontinuance of Proceedings
10.3.10 Presentation of Evidence
85
85
86
86
86
87
88
89
89
89
10.4. Trial Proper
89
10.4.1 Guidelines Under the Continuous Trial
87
90
10.5. Order of Trial
93
10.6. Presentation of Witnesses
94
10.7. Conducting Direct Examination
10.7.1 How to Conduct Direct Examination
94
95
10.8. Conducting Cross-Examination
10.8.1 Purposes of Cross-Examination
10.8.2 How to Conduct the Cross-Examination
10.9. Rebuttal Evidence
10.10. Request for Subpoena
10.11. Custody of Physical and Real Evidence Pending Trial
97
97
97
100
100
100
10.12. Relevant Jurisprudence
101
Chapter XI APPEAL/PETITION FOR REVIEW
11.1. What May Be Appealed
11.2. Where to File
11.3. Period to File
104
104
104
104
vii
11.4. How to File
11.5. Form and Contents
11.6. Requirements
11.7. Effect of Failure to Comply with the
Procedures and Requirements
11.8. When an Information Has Been Filed in Court
11.9. Appellee’s Comment
11.10. Effect of Filing an Appeal
11.11. Disposition on the Appeal
11.12. Outright Dismissal
11.13. Withdrawal of the Petition for Review/Appeal
11.14. Motion for Reconsideration
11.15. Reinvestigation
11.15.1 Motion for Reinvestigation Pending Appeal
11.15.1.1.When an Information Has Been
Filed in Court
11.15.1.2 When an Information Has Not Yet
Been Filed in Court
11.16. Relevant Jurisprudence
Chapter XII PETITION FOR CERTIORARI
12.1. Grounds for Filing Petition for Certiorari
12.2. Coverage
12.3. Period to File Petition for Certiorari
12.4. Contents of the Petition for Certiorari
12.5. Action to be Taken by the Trial Prosecutor
12.6. Action of the Prosecutor General
105
105
106
107
107
108
108
108
109
109
109
109
110
110
110
110
113
113
113
113
113
114
114
APPENDICES
Appendix A Revised Rules on Summary Procedure
for Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial
Courts
viii
1
Appendix B DOJ Circular No. 39 s. 2007 entitled, “Rules
on Inquest With Respect to Children in
Conflict with the Law as defined Under
Republic Act No. 9344, otherwise known as
the “Juvenile Justice and Welfare Act of
2006”
8
Appendix C DOJ Circular No. 38, s. 2010 entitled,
“Automatic
Review
of
Anti-Smuggling
Cases”
Appendix D DOJ Circular
No.
004,
s.
2017
entitled,
“Automatic
Review
of
Dismissed Cases Involving R.A. No.
9165”
Appendix E Republic Act No. 6036 otherwise known as
“An Act Providing That Bail Shall Not, With
Certain Exceptions, Be Required in Cases of
Violations of Municipal or City Ordinances
and In Criminal Offenses When the
Prescribed Penalty For Such Offenses Is Not
Higher Than Arresto Mayor and/or a Fine
of Two Thousand Pesos or Both”
12
13
14
Appendix F A.M. No. 15-06-10-SC entitled, “Revised
Guidelines for Continuous Trial of Criminal
Cases”
Appendix G Republic Act No. 4908 otherwise known as
“An Act Requiring Judges of Courts to
Speedily Try Criminal Cases Wherein the
Offended Party is a Person about to Depart
from the Philippines with No Definite Date
of Return”
16
63
ix
Appendix H Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases issued
pursuant to Section 32 of R. A. No. 7610,
otherwise known as “The Child Abuse Act”
64
Appendix I DOJ Circular No. 70, dated July 3, 2000
entitled, “2000 NPS Rules on Appeal”
Appendix J DOJ Circular No. 70-A, dated July 10,
2000 entitled, “Delegation of Authority
to Regional State Prosecutors to Resolve
Appeals in certain cases.”
Appendix K DOJ Circular No. 003 dated January 04,
2017 entitled, “Guidelines on the disposition
of the Petitions for Review/Automatic
Review/Appealed cases filed from July 1,
2016 onwards and delegation of authority to
sign or approve decisions and resolutions
thereof”
70
73
74
Appendix L DOJ Circular No. 018 dated March 8, 2017
entitled, “Rule on Electronic Filing of Petition
for Review”
x
75
FOREWORD
The National Prosecution Service (NPS) sits at the forefront of our country's criminal
justice system. Aside from its duty to investigate and prosecute cases involving
violation of penal laws, it is also mandated to ensure that the delivery of criminal
justice is effective, efficient and equitable. Thus, given these formidable tasks, our
prosecutors deserve to be provided with prudent guidance, support and necessary
work tools in order for them to fulfill their mandates. Moreover, it is equally
important that our prosecution offices observe uniform procedures as the
administration of justice impacts on the rights of people to equal protection of our
laws. And this Manual for Prosecutors is intended to benefit both — our prosecutors,
and the Filipino people.
After the 2008 Prosecutors' Manual was printed, a lot has changed in the arena of
criminal law and procedure - various special penal laws were enacted, new and
special procedures were issued, and various important jurisprudences had emerged.
It is fervently hoped that all these developments had been addressed in this 2017
Edition of the Manual, which now consists of three (3) separate volumes that are
meant to be a handy reference tool for our prosecutors. Volume I of this Manual
contains the basic principles of criminal procedure from inquest and preliminary
investigations, to petitions for review or appeals including petitions for certiorari, up
to the trial proper. Secondly, the entire Volume II contains the Elements of Crimes
under the Revised Penal Code and some special penal laws, including the important
discussions on some highly technical and emerging areas of criminal law. Finally,
relevant issuances of the Department in the recent past, and sample resolutions,
informations, forms and templates, among others, are included in Volume III.
I commend the Technical Working Group for accomplishing the daunting task of
updating and revising the Prosecutors' Manual. Their zealous dedication and diligent
efforts in the preparation of this significant work tool for our prosecutors are truly
laudable.
May this Manual serve as a constant reminder to all the officials and personnel of
the National Prosecution Service, and perhaps to all justice workers in the country
for that matter, of our mission to harmoniously work together towards a just and
peaceful society. And should this Manual fails at times to address some issues and
situations by reason of its peculiarity, we must remain steadfast on our faithful
compliance to the fundamentals of justice and the rule of law.
All together towards a better DOJ!
1\
t
I'vvi6/
VITALIANO'N. UIRRE II
Secretary
xi
ACKNOWLEDGMENT
This 2017 Edition of the Revised Manual for Prosecutors is a product
of a series of consultations, write shops and validation workshops that
involved the assistance and participation of individuals and
institutions whose support and contributions are sincerely appreciated
and gratefully acknowledged.
First, to the following:
•
The Bureau of International Narcotics and Law Enforcement
Affairs of the Department of State (INL), U.S. Embassy, Manila,
headed by its Director, Brandon Hudspeth, and INL Program
Assistant Atty. Chudney Ngo, for providing funding support for
the production of this Manual;
•
The International Development Law Organization (IDLO),
through its Senior Program Development Specialist, Mr. Ted Hill,
and IDLO’s Field Program Coordinator, Atty. Cathleen Caga-anan,
which served as INL’s institutional partner in this project;
•
The American Bar Association-Rule of Law Initiative (ABA-ROLI),
IDLO’s implementing partner, headed by its Country Director, Mr.
Robert La Mont, and his team headed by Senior Program
Manager, Ms. Maria Jane Angela Isabel C. Odulio, and Senior
Legal Adviser, Ms. Genan Zilkha;
•
Former Prosecutor General Claro A. Arellano who originally
proposed this project;
•
Former Prosecutor General Victor C. Sepulveda and Acting
Prosecutor General Jorge G. Catalan, Jr., who both lent invaluable
assistance and support to the completion of the project.
•
The consultant-writers, Atty. Jude Romano, Criminal Law Expert;
Atty. Renato Lopez Jr. , Legal Ethics and Writing Forms Expert;
Atty. Patricia Sison Arroyo, Gender Specialist, Atty. Jose Jesus
Disini, Cybercrime Expert, Atty. Anthony A. Abad, Competition
Expert and Atty. Estela Valdez Sales, Tax Expert, who have greatly
contributed and shared their legal expertise to the successful
development of this Manual.
xii
Second, to the following, whose active participation and perceptive
observations, suggestions, comments and valuable insights based on
their extensive experiences contributed significantly to the spirited and
fruitful discussions during the consultations and validation sessions
that brought to fore various issues:
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•
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•
•
•
•
•
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SDSP Richard Anthony D. Fadullon
OIC-SDSP Emilie Fe M. Delos Santos
SASP Elizabeth I. Santos
SASP Deana P. Perez
CP Mari Elvira B. Herrera
CP Ferdinand U. Valbuena
CP Marylin Cynthia Fatima M. Luang
SACP Alex G. Bagaoisan
CT Rennet D. Evangelista
SACP Elinore Aquino-Laluces
DCP Jessica Junsay-Ong
CP Jason A. Amante
CP Aileen Marie S. Gutierrez
CP Amerhassan C. Paudac
CP Jacinto G. Ang
DCP Alfredo Agcaoili
DCP Ireneo M. Quintano
CP Lemuel B. Nobleza
PP Raymond Jonathan B. Lledo
RP Nonnatus Caesar R. Rojas
RP Rommel C. Baligod
RP Jesus C. Simbulan
SARP Josef Albert T. Comilang
RP Mary May B. De Leoz
ARP Louie L. Doligosa
RP Fernando K. Gubalane
RP Irwin A. Maraya
RP Peter L. Medalle
ARP Irene A. Meso
RP Janet Grace D. Fabrero
DRP Barbara Mae Flores
RP Al P. Calica
RP John S. Magdaraog
RP Ramy L. Guiling
- DOJ Proper
- DOJ Proper
- DOJ Proper
- DOJ Proper
- OCP- Antipolo City
- OCP- Caloocan City
- OCP- Las Piñas City
- OCP- Makati City
- OCP- Malabon City
- OCP-Mandaluyong City
- OCP- Manila
- OCP -Marikina City
- OCP- Muntinlupa City
- OCP- Parañaque City
- OCP- Pasig City
- OCP- Quezon City
- OCP- San Juan City
- OCP- Valenzuela City
- OPP- Rizal
- ORP- Region I
- ORP- Region II
- ORP- Region III
- ORP- Region IV
- ORP- Region V
- ORP- Region VI
- ORP- Region VII
- ORP- Region VIII
- ORP- Region IX
- ORP- Region X
- ORP- Region XI
- ORP- Region XI
- ORP -Region XII
- ORP- Region XIII
- ORP- ARMM
xiii
Third, to the various Provincial and City Prosecution Offices which
sent in their comments and suggestions for this Manual revision;
Director Ryan Thomas who contributed his ideas in the methodology;
Ms. Marilou Santos of the DOJ Library; Mr. Russel Trasmonte of the
DOJ-Management Information Services, for the cover design of this
Manual; and the law students-trainees who helped in the collation of
these inputs and did research work, namely: Mr. Francis Puno, Ms.
Jennifer Guinanao, Mr. Adrian M. Dela Cruz, Ms. Maria Victoria M.
Castillo, Ms. Kristina Lara and Ms. Angela Sharmaine Rosales.
Fourth, to the members of the Technical Working Group created
pursuant to Department Order No. 605 dated September 14, 2017
whose painstaking determination, dedication and enthusiasm powered
their team effort in consolidating all the materials; presenting the
matrices during the validation session; reviewing and conducting write
shop sessions and editing the final mock-ups of the three (3) volumes
until the completion of this Manual.
Finally, to Undersecretary Antonio T. Kho, Jr., for his guidance and
support to the Technical Working Group.
xiv
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xvi
CHAPTER I
PROSECUTION OF OFFENSES
Section 1.1.
General Principles. –
1.1.1.
“The prosecution of crimes appertains to the executive
department of the government whose principal power and
responsibility is to see that our laws are faithfully executed. A
necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests
the prosecutor with a wide range of discretion the discretion
of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated
by prosecutors.”1
1.1.2.
“The fact that the DOJ is the primary prosecution
arm of the Government does not make it a quasi-judicial office
or agency. Its preliminary investigation of cases is not a quasijudicial proceeding. Nor does the DOJ exercise a quasi-judicial
function when it reviews the findings of a public prosecutor on
the finding of probable cause in any case.”2
1.1.3.
The prosecution of cases shall be under the direct
control and supervision of the prosecutor.3 While he/she may
turnover the actual prosecution of the criminal case to a private
prosecutor, it is necessary that he/she be present at the trial until
the final termination of the case; otherwise, if he/she is absent, it
cannot be gainsaid that the trial is under his/her supervision and
control.
1.1.4.
“The public prosecutor may turn over the actual
prosecution of the criminal case to the private prosecutor, in the
exercise of his discretion, but he may, at any time, take over the
actual conduct of the trial.”4
1.1.5.
A public prosecutor, by the nature of his/her office,
is under no compulsion to file a criminal information where
Soberano v. People, G.R. No. 154629, October 5, 2005.
De Lima v. Reyes, G.R. No. 209330, January 11, 2016.
3
Section 5, Rule 110, Revised Rules of Criminal Procedure.
4
Mobilia Products, Inc. v. Umezawa, G.R. No. 149357, March 4, 2005.
1
2
Revised Manual for Prosecutors Volume 1 - 2017 Edition
1
no clear legal justification has been shown, and no sufficient
evidence of guilt nor prima facie case has been established by the
complaining party.5
1.1.6.
The prosecution office has no more control over cases
filed in court; thus, a motion for reinvestigation should be
addressed to the trial judge.6
5
6
San Miguel v. Perez, G.R. No. 166836, September 4, 2013.
Baltazar v. Pantig, G. R. No. 149111, August 9, 2005.
2
Revised Manual for Prosecutors Volume 1 - 2017 Edition
CHAPTER II
SUMMARY INVESTIGATION
Section 2.1.
General Rules. –
2.1.1.
Summary Investigation. – refers to the
investigation conducted by the prosecutor to determine the
existence or non–existence of probable cause in cases that do
not require preliminary investigation, those involving offenses in
which the prescribed penalty of imprisonment does not exceed
four (4) years and two (2) months and one (1) day, regardless of
the fine.7
2.1.2.
Summary Procedure. – refers to the court
procedure in criminal cases covered by the Rules on Summary
Procedure,8 as amended, involving offenses in which the penalty
prescribed by law does not exceed six (6) months of imprisonment,
or a fine not exceeding One Thousand Pesos (Php1,000.00).
Section 2.2.
Coverage. –
2.2.1.
All offenses punishable by imprisonment of less than
four (4) years, two (2) months and one (1) day, viz:
•
•
•
•
Violations of Traffic Laws, Rules and Regulations;
Violations of the Rental Law;
Violations of Municipal or City Ordinances;
All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or
a fine not exceeding One Thousand Pesos
(Php1,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or
of the civil liability arising therefrom; Provided,
however, that in offenses involving damage to
property through criminal negligence, this rule
Section 8, Rule 112, Revised Rules of Criminal Procedure.
Resolution of the Supreme Court En Banc dated October 15, 1991, “Providing for the Revised
Rule on Summary Procedure for Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts” (See Appendix A)
7
8
Revised Manual for Prosecutors Volume 1 - 2017 Edition
3
shall govern where the imposable fine does not
exceed Ten Thousand Pesos (Php10,000.00).
2.2.3.
Offenses with six (6) months imprisonment and/or fine
of One Thousand Pesos (Php1,000.00):
4
• Art. 130
• Art. 144
• Art. 151
–
–
–
• Art. 153
–
• Art. 154
–
• Art. 155
• Art. 175
• Art. 178
–
–
–
• Art. 179
• Art. 200
• Art. 202
–
–
–
•
Art. 217
–
•
•
•
•
•
•
•
Art. 265
Art. 266
Art. 239
Art. 275
Art. 276
Art. 281
Art. 282
–
–
–
–
–
–
–
•
•
•
•
•
•
Art. 283
Art. 285
Art. 286
Art. 287
Art. 288
Art. 289
–
–
–
–
–
–
Searching Domicile Without Witnesses
Disturbance of Proceedings
Resistance and Disobedience to a
Person in Authority or the Agents of
Such
Tumults and Other Disturbances of
Public Order
Unlawful Use of Means of Publication
and Unlawful Utterances
Alarms and Scandals
Using False Certificates
Using Fictitious Name and Concealing
True Name
Illegal Use of Uniforms and Insignia
Grave Scandal
Vagrants and Prostitutes (partially
repealed by R.A.No.10158)
Abandonment of Minor by Person
Entrusted With His Custody
Less Serious Physical Injuries
Slight Physical Injuries
Unlawful Arrest
Abandonment of Helpless Person
Abandoning a Minor (Paragraph 1)
Other Forms of Trespass
Grave Threats (Paragraph 2 [Without
Condition])
Light Threats
Other Light Threats
Grave Coercion
Light Coercion
Other Similar Coercion
Formation,
Maintenance
and
Prohibition of Combination or Capital
or Labor thru Violence or Threats
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•
Art. 290 –
•
•
Art. 291 –
Art. 308 –
•
Art. 312 –
•
•
•
•
•
•
Art. 315
Art. 317
Art. 318
Art. 329
Art. 338
Art. 339
–
–
–
–
–
–
•
•
•
•
Art. 358
Art. 363
Art. 364
Art. 389
–
–
–
–
Discovery of Secrets thru Seizure of
Correspondence (Paragraph 2)
Revealing Secrets with Abuse of Office
Theft if the amount involved does not
exceed Php50.00
Occupation of Real Property or Real
Rights in Property
Estafa involving Php200.00
Swindling of Minor
Other Deceits
Other Mischief (Malicious Mischief)
Simple Seduction
Acts of Lasciviousness with the Consent
of the Offended Party
Light Oral Defamation (2nd Paragraph)
Incriminating Innocent Person
Intriguing against Honor
Light Slander by Deed (2nd Paragraph)
Section 2.3. Procedure. – Within ten (10) days from assignment of
the complaint, the investigating prosecutor shall initiate the following
actions:
a.
Act on the complaint based on the affidavits and other
supporting documents submitted by the complainant;
b. Prepare a brief resolution recommending the dismissal of
the complaint for the approval of the Prosecutor General or
Provincial/City Prosecutor if he/she finds no probable cause;
c.
Prepare a resolution and the corresponding Information for
the approval of the Prosecutor General or Provincial/City
Prosecutor if he/she finds 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; and
d. File the Information in court if the resolution is approved. The
Information shall contain a certification that a preliminary
investigation has been conducted.
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5
Where the prosecutor opts to conduct preliminary
investigation, he/she shall follow the procedure under
Chapter IV of this Manual.
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CHAPTER III
INQUEST PROCEEDINGS
Section 3.1.
General Principles –
3.1.1.
Concept. – An inquest proceeding is an informal
and summary investigation conducted by a public prosecutor in
criminal cases involving persons arrested and detained without
the benefit of a warrant of arrest issued by the court for the
purpose of determining whether or not these persons should
remain under custody and correspondingly be charged in court.
3.1.2.
Coverage. – The conduct of inquest proceedings
covers the following:
a.
All offenses covered under the Revised Penal Code and
special laws, rules and regulations which requires a
preliminary investigation;
b. Where respondent is a minor (below eighteen [18] years
old), the inquest proceedings shall cover only offenses
punishable by imprisonment of not less than six (6) years
and one (1) day, provided that no inquest investigation
shall be conducted unless the child–respondent shall
have first undergone the requisite proceedings before
the Local Social Welfare Development Officer pursuant
to the Rules on Inquest with Respect to Children in
Conflict With the Law (CICL).
3.1.3.
Designation of an Inquest Prosecutor. – The
Prosecutor General or the Provincial/City Prosecutor shall
designate the prosecutors assigned to inquest duties and their
schedule of assignments.
3.1.4.
Venue of Inquest Cases. – Unless otherwise directed
by the Prosecutor General or the Provincial/City Prosecutor,
those assigned to inquest duties shall discharge their functions
during the hours of their designated assignments at the office
of the inquest prosecutor in order to expedite and facilitate the
disposition of inquest cases, unless otherwise directed by the
Head of Office.
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3.1.5.
Date and Time of the Conduct of Inquest
Proceedings. – Inquest proceedings shall be conducted during
regular office hours, or on such time as the circumstances so
require.
Section 3.2. Procedure. – All complaints for inquest shall be
received and docketed by the prosecution office concerned.
3.2.1.
Commencement. – The inquest proceedings shall be
considered commenced upon receipt by the inquest prosecutor of
the following documents:
a.
Affidavit of arrest duly subscribed and sworn to
before him/her by the arresting officer;
b. Investigation report;
c.
Sworn statements of the complainant/s and
witness/es; and
d. Other supporting pieces of evidence gathered by
the law enforcement authorities in the course of
their investigation.
3.2.2.
Incomplete Documents. – When the documents
presented are incomplete to establish probable cause, the
inquest prosecutor shall direct the law enforcement authorities
to submit, in the proper form, the required evidence within
the period prescribed under the provisions of Article 125 of the
Revised Penal Code, as amended. Failure to submit the required
evidence within the prescribed period shall constrain the inquest
prosecutor to order the release of the detained person/s.
3.2.3.
Instances Where the Presence of the Detained
Person is Dispensed With. – The presence of the detained
person shall be ensured during the proceedings except in the
following cases:
a. If he is confined in a hospital; or
b. If he is detained in a place under maximum security.
The inquest prosecutor shall reflect the absence of the detained
person for any of the foregoing reasons in the record of the case.
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3.2.4. Charges and Counter-Charges. – All charges
and counter-charges arising from the same incident shall, as
far as practicable, be jointly investigated and the conduct of the
inquest proceedings be terminated, and be referred for further
preliminary investigation.
3.2.5.
Determination of the Arrest by the Inquest
Prosecutor. – The inquest prosecutor shall first determine if
the arrest of the detained person was made in accordance with
any of the following:
a.
When, in the presence of the arresting officer, the
person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
b.
When an offense has, in fact, just been committed,
and the arresting officer has probable cause to believe,
based on personal knowledge of facts or circumstances,
that the person to be arrested has committed it;
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.
For this purpose, the inquest prosecutor may summarily examine
the arresting officers on the circumstances surrounding the arrest
or apprehension of the detained person.
3.2.6. Where the Arrest of the Detained Person was
Properly Effected. – Should the inquest prosecutor find that
the arrest was properly effected, the detained person shall be
asked if he/she desires to avail himself/herself of a preliminary
investigation and, if he/she does, the consequences thereof must
be explained to him/her adequately.
The detained person must be assisted by a lawyer of his/her own
choice. If he/she has none, the inquest prosecutor shall provide
him/her the services of a public attorney.
The detained person, assisted by his/her lawyer, shall then be
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9
made to execute a waiver of the provisions of Article 125 of the
Revised Penal Code, as amended.
The preliminary investigation may be conducted by the inquest
prosecutor himself/herself or by any other prosecutor to whom the
case may be assigned by the Prosecutor General or the Provincial/
City Prosecutor, which investigation shall be terminated within
fifteen (15) days from its commencement.
3.2.7.
Where Arrest of the Detained Person was Not
Properly Effected. – Should the inquest prosecutor find
that the arrest was not made in accordance with the aforesaid
provisions of the Revised Rules of Criminal Procedure, he shall:
a.
Recommend the release of the person arrested or
detained;
b.
Prepare a resolution indicating the reasons for the
action taken; and
c.
Forward the same, together with the record of the
case, to the Prosecutor General or Provincial/City
Prosecutor for their appropriate action.
3.2.8. Release of Detained Person for Further
Investigation. – Where the recommendation for the release
of the detained person is approved by the Prosecutor General
or by the Provincial/City Prosecutor, but the evidence on hand
warrants the conduct of a regular preliminary investigation, the
inquest prosecutor shall:
a.
Serve the order of release on the law enforcement
officer having custody of the detainee; and
b.
Direct the said officer to serve upon the detainee
the subpoena or notice of preliminary investigation,
together with the copies of the charge sheet or
complaint, affidavits or sworn statements of the
complainant and his/her witnesses and other
supporting evidence.
Section 3.3. Inquest Proper. – Where the detained person does
not opt for a preliminary investigation or otherwise refuses to execute
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the required waiver, the inquest prosecutor shall proceed with the
conduct of the inquest proceeding by examining the sworn statements/
affidavits of the complainant and the witnesses and other supporting
evidence submitted. The conduct of an inquest proceeding should never
be initiated in the absence of an affidavit of arrest.
If necessary, the inquest prosecutor shall require the presence of the
complaining witnesses and subject this witness to an informal and
summary investigation or examination for the purposes of determining
the existence of probable cause.
3.3.1.
Action to be Taken When there is a finding
of Probable Cause. – Probable cause has been defined as
the existence of such facts and circumstances as would excite
the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty
of the crime for which he/she was prosecuted. Probable cause is
a reasonable ground of presumption that a matter is, or may be,
well-founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe,
or entertain an honest or strong suspicion, that a thing is so.9
If the inquest prosecutor finds that probable cause exists, he/she
shall forthwith prepare the resolution with the corresponding
Complaint/Information with the recommendation that the same
be filed in court. The Complaint/Information shall indicate the
offense/s committed and the amount of bail recommended, if
applicable. However, in inquest cases for crimes covered by the
Rules on Summary Procedure and Republic Act No. 603610 where
no bail is required, the inquest prosecutor shall recommend the
release of the arrested person and prepare the Information for
filing with the court.
Thereafter, the record of the case, together with the resolution and
the Complaint/Information, shall be forwarded to the Prosecutor
General or the Provincial/City Prosecutor for approval and
subsequent filing before the proper Court.
R.R. Paredes v. Calilung, G.R. No. 156055, March 5, 2007.
Republic Act No. 6036, otherwise known as “An Act Providing that Bail Shall Not, with certain
exceptions, be Required in cases of Violations of Municipal or City Ordinances and in Criminal
Offenses When the Prescribed Penalty for Such Offenses is Not Higher Than Arresto Mayor and/
or a Fine of Two Thousand Pesos or Both” (See Appendix E)
9
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11
3.3.2.
Action to be Taken When There is an Absence of
Probable Cause. – If the inquest prosecutor finds no probable
cause to indict the arrested/detained person, he/she shall:
a.
Recommend the release of the arrested or detained
person;
b. Prepare a resolution of dismissal indicating therein
the reason/s for the action taken; and
c.
Forward the record of the case to the Prosecutor
General or the Provincial/City Prosecutor for their
appropriate action.
3.3.3.
Action to be Taken When the Arrested Person
Executes a Waiver of Article 125 of the Revised Penal
Code. – Should the arrested person execute a waiver, the inquest
prosecutor shall set the case for preliminary investigation which
shall be terminated within fifteen (15) days from the execution of
the waiver.
3.3.4. Contents of the Information. – The Information
shall, among others, contain:
12
a.
A certification by the inquest prosecutor that he/she
is filing the same in accordance with the provisions
of Section 6, Rule 112, Revised Rules of Criminal
Procedure in cases cognizable by the Regional Trial
Court;
b.
The full name and aliases, if any, of the accused;
c.
Unidentified accused person/s designated as “John/
Jane Does”, if he/she is in conspiracy with the
identified accused;
d.
The address of the accused;
e.
The place where the accused is actually detained;
f.
The full names and addresses of the complainant and
witnesses;
g.
Description of the items subject matter of the
complaint, if any;
h.
The full name and address of the evidence custodian;
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i.
The age of the complainant or the accused, if below
eighteen (18) years of age.
j.
The full names and addresses of the parents,
custodians or guardians of the minor complainant or
accused, as the case may be; and
k.
Attendance of aggravating
circumstances, if any.
and/or
qualifying
3.3.5.
Delegation
of
Authority
to
Approve
Information. — Pursuant to Section 4, Rule 112 of the 2000
Revised Rules of Criminal Procedure, no complaint or information
may be filed or dismissed by an investigating prosecutor without
the prior written authority or approval of the Prosecutor General
or Provincial/City Prosecutor.
However, the Prosecutor General or Provincial/City Prosecutor
may delegate in writing his/her authority to his/her subordinates
as he/she may deem necessary in the interest of the prosecution
service.
3.3.6. Posting of Bail by the Arrested/Detained
Person. – Please refer to Section 5, Chapter VI on BAIL.
Section 3.4. Termination of Inquest Proceedings. – The
inquest proceedings must be terminated within the period prescribed,
which shall be counted from the time of arrest, under the provisions of
Article 125 of the Revised Penal Code, as amended:
a.
Twelve (12) hours for light offenses;
b. Eighteen (18) hours for less grave offenses;
c.
Thirty-six (36) hours for grave offenses; and
d. Seventy–two (72) hours in cases of violation of Human
Security Act.
3.4.1.
Factors to be considered in determining
whether or not Article 125 of the Revised Penal Code
has been violated. —
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13
a.
The means of communication
b.
The hour of the arrest
c.
Other circumstances such as:
i.
Time of surrender; and
ii.
Material possibility for the prosecution to
make the investigation and file in time the
corresponding Information because of the
following reasons:
•
Availability of the clerk of court to open the
courthouse, docket the case and have the order
of commitment prepared; or
•
Availability of the judge to act on the case; or
•
The fact that government offices open for business
transactions at 8:00 o’clock in the morning and
close at 5:00 o’clock in the afternoon.
3.4.2. Applicability of the period prescribed in Article
125 of the Revised Penal Code. – The period prescribed in
Article 125 of the Revised Penal Code shall not be applicable when
the persons arrested/detained without the benefit of a warrant of
arrest issued by the court are children defined under Republic Act
No. 9344, otherwise known as the “Juvenile Justice and Welfare
Act of 2006.”11
3.4.3. For Dismissed Cases Subject for Automatic
Review by the Secretary of Justice. – The record of the
dismissed cases involving violation of Anti–Smuggling Laws
shall be forwarded to the Office of the Secretary of Justice for
automatic review. The inquest prosecutor shall prepare an Order
for the release of the arrested/detained person, for approval of
the Prosecutor General or Provincial/City Prosecutor.12
For violations of R.A. No. 9165, the entire records of the case shall
Department Circular No. 39 s. 2007 on the “Rules on Inquest with Respect to Children in Conflict
with the Law as defined Under Republic Act No. 9344, Otherwise Known as the “Juvenile Justice
and Welfare Act of 2006” (See Appendix B).
12
DOJ Circular No. 38, s. 2010 on “Automatic Review of Anti-Smuggling Cases” (See Appendix C)
11
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be elevated to the Secretary of Justice within three (3) days from
issuance of the resolution dismissing the complaint or appeal, as
applicable, and the parties involved shall be notified accordingly.
Notwithstanding the automatic review, respondent shall be
immediately released from detention unless detained for other
causes.13
Section 3.5.
Other Matters. –
3.5.1.
Presence of the Inquest Prosecutor at the
Crime Scene. – Whenever a dead body is found by the law
enforcement authorities and there is reason to believe that the
death of the person resulted in foul play, or from the unlawful
acts or omissions of other persons and such fact has been brought
to the law enforcement’s attention, the Inquest Prosecutor shall:
a.
Proceed to the crime scene or place of discovery of
the dead person;
b.
Cause the immediate autopsy of the dead person to
be conducted by the appropriate medico-legal officer
in the locality or the PNP medico legal division or
the NBI medico-legal office, as the case may be;
c.
Direct the police investigator to cause the taking of
photographs of the crime scene or place of discovery
of the dead body;
d.
Supervise the crime scene investigation to be
conducted by the police authorities as well as the
recovery of all articles and pieces of evidence found
thereat; to see to it that the same are safeguarded;
and that the chain of the custody thereof be properly
recorded; and
e.
Submit a written report of his/her finding to the
Prosecutor General or the Provincial/City Prosecutor
as the case may be for appropriate action.
DOJ Circular No. 004, s. 2017 on Automatic Review of Dismissed Cases Involving Republic Act
No. 9165 (See Appendix D)
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15
3.5.2.
Sandiganbayan Cases. – Should any complaint
cognizable by the Sandiganbayan be referred to the Office of the
Prosecutor General or City/Provincial Office for the conduct of
inquest proceedings, the latter shall refrain from accepting the
same and shall advise the law enforcer to file the complaint
before the Office of the Ombudsman or the Office of the Special
Prosecutor through any of the branch clerk of court in the locality.
3.5.3.
Recovered Articles. –
3.5.3.1. Responsibility of the Inquest Prosecutor.
– The inquest prosecutor shall:
a.
Conduct physical inventory of all the articles
recovered by the law enforcement authorities
from the arrested/detained person;
b.
Make sure that the corresponding photographs
of the recovered articles are taken and attached
to the record of the case; and
c.
Make sure that the items recovered are duly
safeguarded by the law enforcer and the chain
of custody is properly recorded.
3.5.3.2. Deposit
of
Recovered
Articles/
Properties. – The recovered articles shall be properly
deposited by the law enforcement officer with their
evidence custodian.
3.5.3.3. Release of Recovered Articles. – The inquest
prosecutor shall, with the prior approval of the Prosecutor
General or the Provincial/City Prosecutor, and subject to
applicable laws, order the release of recovered articles to
their lawful owner or possessor, subject to the conditions
that:
16
a.
There is a written request for their release;
b.
The person requesting the release of said articles
is shown to be the lawful owner or possessor
thereof;
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c.
The requesting party undertakes under oath to
produce said articles before the court when so
required;
d.
The requesting party, if he/she is a material witness
to the case, affirms or reaffirms his/her statement
concerning the case and undertakes under oath
to appear and testify before the court when so
required;
e.
The recovered articles are not the instruments, or
tools in the commission of the offense charged nor
the proceeds thereof; and
f.
Photographs of the recovered articles are first
taken and duly certified to by the police evidence
custodian as accurately representing the evidence
in his custody.
Section 3.6.
a.
Relevant Jurisprudence. –
In warrantless arrests made pursuant to Section 5(b) of
Revised Rules of Criminal Procedure, it is essential that
the element of personal knowledge must be coupled with
the element of immediacy; otherwise, the arrest may be
nullified, and resultantly, the items yielded through the
search incidental thereto will be rendered inadmissible
in consonance with the exclusionary rule of the 1987
Constitution.
In Pestilos v. Generoso, G.R. No. 182601 (November 10,
2014), the Supreme Court explained the requirement of
immediacy as follows:
Based on these discussions, it appears that the Court’s
appreciation of the elements that “the offense has just
been committed” and “personal knowledge of facts and
circumstances that the person to be arrested committed
it” depended on the particular circumstances of the case.
However, we note that the element of “personal knowledge
of facts or circumstance” under Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure requires clarification.
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17
The
phrase covers facts or, in the alternative,
circumstances. According to the Black’s Law Dictionary,
“circumstances are attendant or accompanying facts,
events or conditions.” Circumstances may pertain to
events or actions within the actual perception, personal
evaluation or observation of the police officer at the scene
of the crime. Thus, even though the police officer has not
seen someone actually fleeing, he/she could still make a
warrantless arrest if, based on his/her personal evaluation
of the circumstances at the scene of the crime, he could
determine the existence of probable cause that the person
sought to be arrested has committed the crime. However,
the determination of probable cause and the gathering of
facts or circumstances should be made immediately after
the commission of the crime in order to comply with the
element of immediacy.
In other words, the clincher in the element of “personal
knowledge of facts or circumstances” is the required
element of immediacy within which these facts or
circumstances should be gathered. This required time
element acts as a safeguard to ensure that the police officers
have gathered the facts or perceived the circumstances
within a very limited time frame. This guarantees that the
police officers would have no time to base their probable
cause finding on facts or circumstances obtained after an
exhaustive investigation.
The reason for the element of the immediacy is this - as
the time gap from the commission of the crime to the
arrest widens, the pieces of information gathered are
prone to become contaminated and subjected to external
factors, interpretations and hearsay. On the other hand,
with the element of immediacy imposed under Section 5
(b), Rule 113 of the Revised Rules of Criminal Procedure,
the police officer’s determination of probable cause would
necessarily be limited to raw or uncontaminated facts or
circumstances, gathered as they were within a very limited
period of time. The same provision adds another safeguard
with the requirement of probable cause as the standard for
evaluating these facts of circumstances before the police
officer could effect a valid warrantless arrest.14
14
People v. Manago y Acut, G.R. No. 212340, August 17, 2016.
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b.
xxx [A]ppellant was arrested during the commission of
a crime, which instance does not require a warrant in
accordance with Section 5 (a) of Rule 113 of the Revised
Rules of Criminal Procedure. Such arrest is commonly
known as in flagrante delicto. For a warrantless arrest
of an accused caught in flagrante delicto to be valid, two
requisites must concur: (1) the person to be arrested
must execute an overt act indicating that he/she has just
committed, is actually committing, or is attempting to
commit a crime; and, (2) such overt act is done in the
presence or within the view of the arresting officer.15
c.
In the case of People vs. Gumilao – the arrest of Gumilao
stemmed from the routine frisking she was subjected to at
the Eva Macapagal Terminal when she was about to board
the ferry bound for Cebu. Since the search conducted
on Gumilao was a valid search pursuant to routine port
security procedure, she was also lawfully arrested without
a warrant for being caught in possession of a contraband,
thus, in flagrante delicto.16
d.
In warrantless arrests made pursuant to Section 5(a),
Rule 113 of Revised Rules of Criminal Procedure, two
(2) elements must concur, namely: (a) the person to be
arrested must execute an overt act indicating that he/she
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.
On the other hand, Section 5(b), Rule 113 requires for its
application that at the time of the arrest, an offense had
in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the accused
had committed it.
In both instances, the officer’s personal knowledge of the
fact of the commission of an offense is essential. Under
Section 5(a), Rule 113 of the Revised Rules of Criminal
Procedure, the officer himself/herself witnesses the crime;
while in Section 5(b) of the same, he/she knows for a fact
that a crime has just been committed.
People v. Badilla, G.R. No. 218578, August 31, 2016.
People v. Gumilao, G.R. No. 208755, October 5, 2016.
15
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19
In this case, the Court finds that there could have been no
lawful warrantless arrest made on the person of Sindac.
Based on the records, the arresting officer, PO3 Peñamora,
himself admitted that he was about five (5) to ten (10)
meters away from Sindac and Cañon when the latter
allegedly handed a plastic sachet to the former. Suspecting
that the sachet contained shabu, he and PO1 Asis rushed to
Sindac to arrest him. PO3 Peñamora’s testimony on direct
examination reveals:
x x x
Considering that PO3 Peñamora was at a considerable
distance away from the alleged criminal transaction (five
[5] to ten [10] meters), not to mention the atomity of the
object thereof (0.04 gram of white crystalline substance
contained in a plastic sachet), the Court finds it highly
doubtful that said arresting officer was able to reasonably
ascertain that any criminal activity was afoot so as to
prompt him to conduct a lawful in flagrante delicto arrest
and, thereupon, a warrantless search.
It is settled that “reliable information” alone — even if it
was a product of well-executed surveillance operations
— is not sufficient to justify a warrantless arrest. It is
further required that the accused performs some overt
act that would indicate that he has committed, is actually
committing, or is attempting to commit an offense xxx17
e.
In the case of People v. Manago, a police officer (PO3 Din)
was waiting for his turn to have a haircut at around 9:30
p.m. of March 15, 2007 when the said Beauty Parlor was
robbed. After a brief shootout with PO2 Din, the armed
robbers fled using a motorcycle and a red Toyota Corolla.
Through an investigation headed by PO3 Din, they were
able to find out where the robbers were staying and trace
the getaway vehicles to Manago. The following day, the
police set up a checkpoint. At around 9:30 p.m. of March
16, 2007 the red Toyota Corolla driven by Manago passed
by. They searched the car and found plastic sachet of shabu.
Thus, they arrested Manago. The Supreme Court ruled:
Sindac v. People, G.R. No. 220732, September 6, 2016.
17
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The foregoing circumstances show that while the element
of personal knowledge under Section 5(b) above was
present — given that PO3 Din actually saw the March
15, 2007 robbery incident and even engaged the armed
robbers in a shootout — the required element of immediacy
was not met. This is because, at the time the police
officers effected the warrantless arrest upon Manago’s
person, investigation and verification proceedings were
already conducted, which consequently yielded sufficient
information on the suspects of the March 15, 2007 robbery
incident. As the Court sees it, the information the police
officers had gathered therefrom would have been enough
for them to secure the necessary warrants against the
robbery suspects.18
f.
The “personal knowledge” of the fact of rape, which was
supplied by the rape victim herself to the arresting officer,
falls within the purview of a warrantless arrest.19
g.
After the filing of the Information in court without a
preliminary investigation, the accused may, within five
(5) days from the time he/she learns of its filing, ask for
a preliminary investigation with the same right to adduce
evidence in his/her defense as provided under Section 6,
Rule 112 of the Rules of Criminal Procedure. This five-day
rule is mandatory.20
h.
Reliable information alone, absent any overt act indicative
of a felonious enterprise in the presence of and within the
view of the arresting officers, are not sufficient to constitute
probable cause that would justify an in flagrante delicto
arrest.21
People v. Manago y Acut, supra.
People v. Alvario, G.R. Nos. 120437-41, July 16, 1997.
20
People v. Figueroa, G.R. No. L-24273, April 30, 1969.
21
People v. Molina, G.R. No. 133917, February 19, 2001. See also People vs. Nuevas, G. R. No.
170233, February 22, 2007.
18
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CHAPTER IV
PRELIMINARY INVESTIGATION
Section 4.1.
General Principles –
4.1.1.
Concept. – A preliminary investigation is an inquiry
or proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held
for trial.22
4.1.2.
Quantum of Evidence Required is Probable
Cause. — Probable cause has been defined as a reasonable
ground of presumption that a matter is or may be well-founded;
such a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or entertain
an honest or strong suspicion, that a thing is so.
The term does not mean “actual and positive cause” nor does
it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence
to procure a conviction. It is enough that it is believed that an
act or omission complained of constitutes the offense charged.
Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge.23
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
respondent is probably guilty thereof, and should be held for
trial.24
Probable cause is meant such set of facts and circumstances which
would lead a reasonably discreet and prudent man to believe that
the offense charged in the Information, or any offense included
therein, has been committed by the person sought to be arrested.25
Section 1, Rule 112, Revised Rules of Criminal Procedure.
Paredes, Jr., v. Sandiganbayan, G. R. No.108251, January 31, 1996.
24
De Ocampo v. Secretary of Justice, G.R. No. 147932, January 25, 2006.
25
Ibid.
22
23
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In determining probable cause, the average person weighs facts
and circumstances without resorting to the calibrations of the
rules of evidence of which he/she has no technical knowledge.
He/She relies on common sense.
A finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been committed
and that it was committed by the accused.26
Probable cause demands more than bare suspicion, but it requires
less than evidence that would justify a conviction.27
What is determined during preliminary investigation is only
probable cause, not proof beyond reasonable doubt. As implied
by the words themselves, probable cause is concerned with
probability, not absolute or moral certainty.
A finding of probable cause does not require an inquiry into
whether there is sufficient evidence to secure a conviction. It is
enough that the act or omission complained of constitutes the
offense charged. The term does not mean “actual and positive
cause” nor does it import absolute certainty. It is merely based on
opinion and reasonable belief.28
4.1.3.
No Fixed Formula for Determining Probable
Cause. – The determination of probable cause does not call for
the application of rules and standards of proof that a judgment
of conviction requires after trial on the merits. As implied by the
words themselves, “probable cause” is concerned with probability,
not absolute or even moral certainty. The prosecution need
not present at this stage proof beyond reasonable doubt. The
standards of judgment are those of a reasonably prudent man,
not the exacting calibrations of a judge after a full-blown trial.
No law or rule states that probable cause requires a specific kind
of evidence. No formula or fixed rule for its determination exists.
Probable cause is determined in the light of conditions obtaining
in a given situation.29
Ibid.
Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, February 16, 2005.
28
Clay & Feather International Inc. et. al. v. Lichaytoo, G.R. No. 193105, May 30, 2011.
29
Microsoft Corporation v. Maxicorp, Inc., G.R. No. 140946, September 13, 2004.
26
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4.1.4.
Sound Discretion of the Prosecutor. – The
institution of a criminal action depends upon the sound
discretion of the prosecutor. He may or may not file the
complaint or information, follow or not follow that presented
by the offended party, according to whether the evidence, in his
opinion, is sufficient or not to establish the guilt of the accused
beyond reasonable doubt. The reason for placing the criminal
prosecution under the direction and control of the [prosecutor]
is to prevent malicious or unfounded prosecution by private
persons. x x x Prosecuting officers under the power vested in
them by law, not only have the authority but also the duty of
prosecuting persons who, according to the evidence received from
the complainant, are shown to be guilty of a crime committed
within the jurisdiction of their office. They have equally the legal
duty not to prosecute when after an investigation they become
convinced that the evidence adduced is not sufficient to establish
a prima facie case.30
Section 4.2. Purposes of a Preliminary Investigation. –
a.
To secure the innocent against hasty, malicious and
oppressive prosecution and to protect him/her from an
open and public accusation of a crime and from the trouble,
expense and anxiety of a public trial;31 and
b.
To protect the State from having to conduct useless and
expensive trials.32
The primary objective of a Preliminary Investigation is to free
the respondent from the inconvenience, expense, ignominy
and stress of defending himself/herself in the course of a
formal trial, until the reasonable probability of his/her guilt
in a more or less summary proceeding by a competent office
designated by law for that purpose has been determined.
Secondarily, such summary proceeding also protects the
State from the burden of the unnecessary expense and effort
in prosecuting alleged offenses, and in holding trials arising
Insurance Life Assurance Company Limited v. Serrano, G.R. No. 163255, June 22, 2007.
Callo-Claridad v. Esteban, G.R. No. 191567, March 20, 2013 citing Hashim v. Boncan, G.R. No.
L-47777, January 13, 1941.
32
Tandoc v. Resultan, G.R. No. 59241-44, July 5, 1989.
30
31
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from false, frivolous or groundless charges.33
4.2.1.
Double Jeopardy in Preliminary Investigation.
– The dismissal of a case during preliminary investigation does
not constitute double jeopardy, preliminary investigation not
being part of the trial34
Section 4.3.
Nature of a Preliminary Investigation. –
4.3.1.
It is an Executive Function. – A preliminary
investigation is not a quasi-judicial proceeding. xxx He does
not exercise adjudication nor rule–making functions.35 It is a
function of the Office of the National Prosecution Service which
is under the control and supervision of the Department of Justice
within the executive branch of the government.
4.3.2. It is Preliminary in Nature. – The investigation is
advisedly called preliminary, as it is yet to be followed by the trial
proper. The investigating officer acts upon probable cause and
reasonable belief, not proof beyond reasonable doubt.
4.3.3. It is a Summary and Inquisitorial Proceeding.
– While it is a summary proceeding, it is done in a scrupulous
manner to prevent material damage to a potential accused’s
constitutional right to liberty and the guarantees of freedom and
fair play36
Merely inquisitorial; not trial on the merits;37 It must be stressed
that the right of an accused to a preliminary investigation is a
personal right and can be waived expressly or by implication;38 if
failed to invoke before entering a plea;39 it is not part of the due
process guaranteed by the Constitution;40 and does not place the
respondent in jeopardy.41
People v. CA, G.R. No. 126005, January 21, 1999.
Flores v. Montemayor, G.R No.170146, June 8, 2011.
35
Santos v. Go, G.R. No. 156081, October 19, 2005.
36
Drilon v. C.A., G.R. No. 115825, July 5, 1996.
37
De Ocampo v. Sec. of Justice, G.R. No. 147932, January 25, 2006.
38
People v. Lazo, G.R. No. 75367, June 19, 1991.
39
Go v. CA, G.R. No. 101837, February 11, 1992.
40
Benedicto and Rivera v. CA, G.R. No. 125359, September 4, 2001.
41
People v. CA, G.R. No. 126005, January 21, 1999.
33
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4.3.4. It is not a Judicial Inquiry or Proceeding. –
Preliminary investigation is merely inquisitorial, and is often the
only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his/
her complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof. While the fiscal makes
that determination, he/she cannot be said to be acting as a quasicourt, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.42
Section 4.4.
Right to Preliminary Investigation. –
4.4.1.
It is not a Constitutional Right. – The right to a
preliminary investigation is not a constitutional right, meaning,
it is not expressly provided for in the Constitution. It is not
therefore guaranteed by the Constitution unlike for instance, the
right to counsel or to remain silent which is expressly embodied
under Section 12 of Article III of the Constitution.
4.4.2. It is Merely a Statutory Grant. – The right to a
preliminary investigation is statutory, not constitutional.” In
short, the rights of a respondent in a preliminary investigation are
merely statutory rights, not constitutional due process rights.43
4.4.3. It is a Personal Right. – The right to a preliminary
investigation is also a personal right, which can be waived
expressly or impliedly. Preliminary investigation is not part of
the due process guaranteed by the Constitution. It is an inquiry
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. Instead, the right
to a preliminary investigation is personal. It is afforded to
the accused by statute, and can be waived, either expressly or
by implication. The waiver extends to any irregularity in the
preliminary investigation, where one was conducted.44
Bautista v. CA, G.R. No. 143375, July 6, 2001.
Estrada v. Ombudsman, G.R. Nos. 212140-41, January 21, 2015 citing Salonga v. Pano, G.R.
No. L-59524 (February 18, 1985).
44
Benedicto v. Court of Appeals, G.R. No. 125359, September 4, 2001.
42
43
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In inquest cases, the accused impliedly waives his/her right to
a preliminary investigation, if he/she fails to invoke the same
within five (5) days from the time he/she learns of the filing of
the Information. This five-day period for the filing of a motion for
preliminary investigation after an Information has been filed in
court against an accused who was arrested without a warrant, has
been characterized as mandatory.45
4.4.4. It is a Substantive Right. — The right to preliminary
investigation is substantive, not merely formal or technical. To
deny it to petitioner would deprive him/her of the full measure of
his/her right to due process.46
Section 4.5.
Coverage. –
a.
All offenses where the penalty prescribed by law is at least
four (4) years, two (2) months and one (1) day, without
regard to the fine.47
b.
All offenses punishable by imprisonment of less than
four (4) years two (2) months and one (1) day where the
prosecutor believes that a preliminary investigation should
be conducted.
c.
All offenses committed by public officials or employees in
connection with the performance of their official duties
and functions.
Section 4.6. Officers Authorized to Conduct Preliminary
Investigations. – The following may conduct preliminary
investigation:
a.
Provincial or City Prosecutors and their Assistants;
b.
State Prosecutors; and
c.
Other officers as may be authorized by law:
•
The Legal Officers of the Commission on Elections
(COMELEC) are mandated under the 1987
Constitution, not only to investigate but also to
Section 6, Rule 112, Revised Rules of Criminal Procedure.
Yusop v. Sandiganbayan, G.R. No. 138859-60, February 22, 2001.
47
Section 1, paragraph 2, Rule 112, Revised Rules of Criminal Procedure.
45
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prosecute cases of violation of election offenses.48
If the prosecutor files an Information charging an
election offense or prosecutes a violation of the
election law, it is because he has been deputized by
the COMELEC. He/She does not do so under the
sole authority of his/her office.49
•
The Ombudsman is clothed with the authority to
conduct preliminary investigations and to prosecute
all criminal cases involving public officers and
employees, not only those within the jurisdiction
of the Sandiganbayan, but also those within the
jurisdiction of the regular courts.50
•
The Chairman of the Presidential Commission on
Good Government with the assistance of the Office
of the Solicitor General and other government
agencies was empowered under Executive Order
No. 14, series of 1986, to file and prosecute before
the Sandiganbayan, all cases investigated by it under
Executive Order No. 1, dated February 28, 1986 and
Executive Order No. 2 dated March 12, 1986, as may
be warranted by its findings. The cases referred to
under E.O. No. 1 and E.O. No. 2 were the ill-gotten
cases of former President Ferdinand Marcos.
Section 4.7.
Procedure. –
4.7.1.
Commencement
Investigation. –
a.
of
the
Preliminary
By the filing of a complaint by the offended party or
any competent person directly with the office of the
investigating prosecutor. The sworn complaint shall
be accompanied by an accomplished Preliminary
Investigation Data Form and other supporting
documents;
People v. Inting, G. R. No. 88919, July 25, 1990.
People v. Basilla, G. R. No. 83938-40, November 6, 1989.
50
Uy v. Sandiganbayan, G. R. No. 105965-70, March 20, 2001.
48
49
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b.
By referral from or upon request of the law
enforcement agency that investigated a criminal
incident. When the referral came from or is upon the
request of a law enforcement agency that investigated
the complaint, the latter shall submit the original or
duplicate original or certified machine copies of the
affidavit/s of the complainant/s and his/her/their
witness/es.
c.
Request of a person arrested or detained pursuant
to an arrest without warrant who executes a waiver
in accordance with the provisions of Article 125 of
the Revised Penal Code, as amended;
d.
By an Order or upon the directive of the court or
other competent authority; or
e.
Upon the initiative of the COMELEC, or upon a
written complaint by any citizen, a candidate, a
registered political party, a coalition of registered
parties or an organization under the party–
list system or any accredited citizen arm of the
COMELEC in cases of election offenses;
4.7.2.
Contents of the Complaint. – The complaint shall
state the following:
a.
The full and complete names and exact home, office
or postal addresses of the complainant/s and his/
her/their witness/es;
b.
The full and complete name and exact home, office
or postal address of the respondent/s;
c.
The offense/s charged and the place and exact date
and time of its/their commission; and
d.
Whether or not there exists a related case and, if so,
the docket number of said case and the name of the
investigating prosecutor thereof.
4.7.3.
Number of Copies of Affidavits; Other
Requirements. – The complaint and supporting affidavits
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shall be in such number of copies as there are respondents, plus
five (5) copies for the court/office file.
Where a complaint charges multiple offenses which cannot be
the subject of one incident or information, the complainant may
be required to submit such additional copies of the complaint
and supporting affidavits as there are offenses charged in the
complaint.
If the offense charged is punishable by imprisonment not
exceeding one (1) year or a fine not exceeding Five Thousand Pesos
(Php5,000.00) and the parties to the case are all residents of the
same city or municipality, the complaint shall be accompanied by
the certification required under Section 412 (a) of RA 7160, “The
Local Government Code of 1991.” Otherwise, the prosecutor shall
not take cognizance of the case.
The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each
of whom must certify that he personally examined the affiants and
that he is satisfied that they voluntarily executed and understood
their affidavits.
4.7.4.
Initial Action by the Investigating Prosecutor
on the Complaint Filed. – Within ten (10) days from receipt
of the complaint, the prosecutor shall:
a. Inhibit himself/herself from conducting a preliminary
investigation in a case wherein –
•
He/She or his/her spouse or child is interested as
heir, legatee, creditor or otherwise; or
•
He/She is related to either party within the 6th
degree of consanguinity or affinity or to counsel
within the 4th degree; or
•
He/She has been named executor, administrator,
guardian, trustee or counsel.
In this particular instance, the conduct of the
preliminary investigation shall be re-assigned to
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another investigating prosecutor.
If a motion to disqualify/inhibit the investigating
prosecutor is filed by any of the parties at any stage
of the preliminary investigation, the same shall be
forwarded to the Head of Office who may designate
another investigating prosecutor to handle the said
preliminary investigation.
The Secretary of Justice, the Prosecutor General or the
Regional Prosecutor shall designate a prosecutor from
another province or city within the region or prosecutor
in the Regional Prosecution Office, as Acting City or
Provincial Prosecutor, to investigate and prosecute a
case in instances where parties question the partiality
or bias of prosecutors of a particular provincial or city
prosecution office.
b.
c.
Dismiss the complaint if he finds the following
grounds:
•
The offense charged in the complaint was
committed outside the territorial jurisdiction of
the office of the investigating prosecutor;
•
At the time of the filing of the complaint,
the offense/s charged therein had already
prescribed;
•
Complainant is not authorized under the
provisions of pertinent laws to file the complaint;
•
Complainant failed to submit a barangay
certification for offenses covered by the
Katarungang Pambarangay Law;
•
No clearance from the Department of Labor
and Employment or from any regional office
thereof is attached to the complaint where the
complainant is an employer and the respondent
is his employee.
Where respondent is a child and he is above fifteen
(15) years of age but below eighteen (18), the
prosecutor shall determine whether or not the child
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acted with discernment.
•
If he acted with discernment, the prosecutor
shall:
Ø Refer the case to the concerned Lupon
Tagapamayapa
for
the
diversion
proceedings, if the case falls within the
jurisdiction of the Lupon; or
Ø Conduct
the
requisite
diversion
proceedings if the penalty for the offense
charged is beyond the jurisdiction of the
Lupon but does not exceed six (6) years of
imprisonment; or
Ø Proceed with the preliminary investigation
if the penalty for the offense charged is
imprisonment of more than six (6) years,
applying the rules and procedure on the
conduct of the preliminary investigation as
herein provided.
d.
4.7.5.
51
Issue subpoena to respondent, attaching thereto a
copy of the complaint, together with the affidavits of
witnesses and other supporting documents.51
Service of Subpoena to the Parties. –
a.
Service of subpoena and all papers/documents
required to be attached thereto shall be by personal
service to be performed by the regular process
servers. In their absence, the cooperation of the
Provincial/City/Municipal Station Commanders
of the Philippine National Police (PNP) maybe
requested for the purpose.
b.
Under other circumstances, where personal service
cannot be effected but the respondent cannot be
considered as incapable of being subpoenaed, as
when he/she continues to reside at his/her known
address but the return states that he/she “has left
Section 3 [b], Rule 112, Revised Rules of Criminal Procedure.
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his residence and his/her return is uncertain” or
words of similar import, service of subpoena and
its attachments shall be effected by registered mail
with return card at respondent’s known home/
office address. On the face of the envelope shall be
indicated:
•
The name and return address of the
sender, and the typewritten/printed phrase
“First Notice Made on ________”, thus
instructing the postmaster/postal employee
of the necessity of informing the sender of
the date that the first notice was made on the
addressee; and
•
The typewritten/printed request: “If not
claimed within five (5) days from the first
notice, please return to sender.”
c.
Within ten (10) days from receipt of the unclaimed/
returned envelope, the investigating prosecutor may
proceed to resolve the complaint on the basis of the
evidence presented by the complainant.52
d.
If the envelope remained unclaimed or is not returned
within 20 days from mailing, the investigating
prosecutor may proceed to resolve the complaint
on the basis of the evidence presented by the
complainant.
4.7.5.1. To Prevent Loss of Documents. – The
investigating prosecutor may require the respondent or
other parties to appear before him/her on a designated
date, time and place and then and there personally furnish
them with copies of the complaint, supporting affidavits
and other documents. At the said or any other setting,
the respondent shall have the right to examine all other
evidence submitted by the complainant and to obtain
copies thereof at his/her expense.
Section 3(d), Rule 112, Revised Rules of Criminal Procedure; DOJ Memorandum Circular No. 25
dated October 2, 1989.
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If such records are voluminous, the complainant may
be required to specify and identify those which he/she
intends to present against the respondent to support the
charge against the latter and these shall be made available
for examination, copying or photographing by respondent
at his expense.53
Failure on the part of respondent or his counsel/
representative to appear before the investigating
prosecutor to obtain copies of the complaint, supporting
affidavits and other documents, despite receipt of notice
or subpoena, shall be considered a waiver of respondent’s
right to be furnished copies of the complaint, supporting
affidavits and other documents, as well as to examine all
other pieces of evidence submitted by the complainant.
4.7.5.2. Service to a Respondent Residing in
a Distant Place. – The investigating prosecutor shall
issue and send the subpoena, together with copies of the
complaint, supporting affidavit/s and other documents,
by registered/special delivery mail with return card to a
respondent who resides in a distant place.
4.7.5.3. Where
Respondent
Cannot
be
Subpoenaed or if Subpoenaed Does Not Submit
Counter-affidavit. – If a respondent cannot be
subpoenaed, as, for instance, he/she transferred residence
without leaving any forwarding address, or if subpoenaed,
does not submit his/her counter-affidavit, the investigating
prosecutor shall resolve the complaint based on the
evidence presented by the complainant.54
4.7.5.4. Objects as Evidence. – Objects as evidence
need not be furnished either party but shall be made
accessible for examination, copying or photographing at
the expense of the requesting party.55
Section 3(b), paragraph 2., Rule 112, Revised Rules of Criminal Procedure.
Section 3, paragraph (d), Rule 112, Revised Rules of Criminal Procedure.
55
Section 3, paragraph (b), Rule 112, Revised Rules of Criminal Procedure.
53
54
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Section 4.7.6. Submission of the Counter-affidavit/s by the
Respondent/s. – Within ten (10) days from receipt of the subpoena
together with the complaint and supporting affidavit/s and document/s,
the respondent shall submit his/her counter-affidavit and that of his/her
witness/es and other supporting documents which shall be subscribed
and sworn to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before the notary
public. Copies of the counter-affidavit/s and supporting documents, if
any, shall be furnished the complainant/s by the respondents.
4.7.6.1. Extension of Time within which to Submit
Respondent’s Counter-affidavit. – No motion or request
for extension of time to submit counter– affidavits shall be
allowed or granted by the investigating prosecutor except when
the interest of justice demands that the respondent be given a
reasonable time or sufficient opportunity to:
a.
Engage the services of counsel in order to assist him/her
during the preliminary investigation proceedings;
b.
Examine or verify the existence, authenticity or accuracy
of voluminous records, files, accounts or other papers
or documents presented or submitted in support of the
complaint; or
c.
Undertake studies or research on novel, complicated or
technical questions or issues of law and of facts attendant
to the case under investigation.
Extensions of time to submit a counter-affidavit for any of the
reasons stated above shall not exceed ten (10) days.
4.7.6.2.
Filing of a Motion to Dismiss in Lieu of
a Counter-affidavit. –
a.
General Rule–
The respondent shall NOT be allowed to file a motion
to dismiss in lieu of a counter-affidavit.56 The counteraffidavit shall be subscribed and sworn to before any
Section 3 (c), Rule 122, Revised Rules of Criminal Procedure.
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prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, before a notary
public, each of who must certify that he/she personally
examined the affiants and that he/she is satisfied that they
voluntarily executed and understood their affidavits.57
b.
Exceptions–
However, if such motion to dismiss is verified by
respondent himself/herself, the same may be considered
as his/her counter-affidavit. The investigating prosecutor
may, however, grant a motion to dismiss filed by a
respondent who is yet to file or has not filed his/her
counter-affidavit if the motion is verified and satisfactorily
establishes, among others:
57
•
The absence of probable cause;
•
The fact that the complaint, or one similar thereto
or identical therewith, has previously been filed
with the Office and has been fully adjudicated upon
on the merits after due preliminary investigation
proceedings; or
•
The extinction of respondent’s criminal liability by
reason of death, pardon, amnesty, repeal of the law
under which prosecution is sought, or any other legal
causes.
c.
Effect of the Filing of a Motion to Dismiss or a Motion for
a Bill of Particulars and Other Similar Pleadings. – The
filing of a motion for the dismissal of the complaint or for
the submission of a bill ofparticulars shall not suspend or
interrupt the running of the period for the submission of
the counter-affidavit/s and other supporting documents.
d.
Action on Motion to Dismiss on the Basis of an Affidavit
of Desistance. – An affidavit of desistance is viewed with
suspicion and reservation and regarded as exceedingly
unreliable. It is merely an additional ground to buttress
the defense of the respondent. The investigating
Ibid.
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prosecutor must be able to discern other circumstances
which, when coupled with the desistance, creates doubt
as to respondent’s criminal liability. If there is none, then
the complaint may be dismissed for lack of insufficient
evidence and not on the basis of an affidavit of desistance.
4.7.7.
Suspension of Proceedings Due to the Existence
of a Prejudicial Question. – Upon motion of a party or when
raised in a counter-affidavit, the investigating prosecutor shall
suspend preliminary investigation proceedings if the existence of
a prejudicial question is satisfactorily established.
4.7.7.1.
Concept. – A prejudicial question generally
comes into play in a situation where a civil action and a
criminal action are both pending and there exists in the
former an issue which must be preemptively resolved
before the latter may proceed, because howsoever the issue
raised in the civil action is resolved would be determinative
juris et de jure of the guilt or innocence of the accused in
the criminal case. The rationale behind the principle of
prejudicial question is to avoid two conflicting decisions.58
If both civil and criminal cases have similar issues, or
the issue in one is intimately related to the issues raised
in the other, then a prejudicial question would likely
exist, provided that the other element or characteristic is
satisfied. It must appear not only that the civil case involves
the same facts upon which the criminal prosecution would
be based, but also that the resolution of the issues raised
in the civil action would be necessarily determinative of
the guilt or innocence of the accused. If the resolution of
the issue in the civil action will not determine the criminal
responsibility of the accused in the criminal action based on
the same facts, or if there is no necessity that the civil case
be determined first before taking up the criminal case, the
civil case does not involve a prejudicial question. Neither
is there a prejudicial question if the civil and the criminal
action can, according to law, proceed independently of
each other.59
Jose v. Suarez, G.R. No. 176795, June 30, 2008.
Reyes v. Rossi, G.R. No. 159823, February 18, 2013.
58
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4.7.7.2.
Elements of a Prejudicial Question. –
a. The civil action involves an issue similar or intimately
related to the issue raised in the criminal action;
b. The resolution of such issue determines whether or
not the criminal action may proceed; and
c. The cognizance of the said issue pertains to another
tribunal.60
4.7.7.3. Issuance of an Order Suspending the
Proceedings Due to the Existence of a Prejudicial
Question; Written Approval of the Head of Office
Required. – If a motion to suspend proceedings is filed
before the filing of a counter-affidavit, the investigating
prosecutor shall first resolve the said motion.
If a motion to suspend proceedings is filed together
with or is incorporated in the counter-affidavit, the
investigating prosecutor shall first rule on the said motion.
In case the investigating prosecutor denies the motion, he/
she must proceed to resolve the merits. Otherwise, he/she
shall issue an order suspending the proceedings without
resolving on the merits of the case.
All orders suspending the preliminary investigation based
on the existence of a prejudicial question issued by the
investigating prosecutor shall have the written approval
of the Prosecutor General or Provincial/City Prosecutor
concerned or his/her duly designated assistant.
Upon approval and issuance of the order, the complaint
shall be considered archived.
4.7.8. When to Set Case for Clarificatory Questioning.
– The investigating prosecutor may set a hearing for clarificatory
questioning within ten (10) days from the submission of the
counter-affidavit/s and other documents or from the expiration
of the period of their submission, in order to personally clarify
matters from the parties and/or their witnesses.
60
Section 5, Rule 111, Revised Rules of Criminal Procedure.
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4.7.8.1. No Right to Examine or Cross–Examine.
– The parties shall be afforded the opportunity to be
present but without the right to examine or cross–examine.
If they so desire, they may submit written questions to
the Investigating Prosecutor who may propound such
questions to the parties or witnesses concerned.61
4.7.8.2. Record/Notes During the Clarificatory
Hearing. – The investigating prosecutor may record the
facts and issues clarified and/or the questions asked and
the answer/s given during the clarificatory questioning.
Said notes shall be signed by the parties concerned and/or
their respective counsels and shall form part of the official
record of the case.
Parties who desire to file an appeal or petition for review
of the investigating prosecutor’s resolution may, at their
option, cite specific portions of the oral testimony of any of
the parties/witnesses by referring to the notes taken by the
investigating prosecutor.
4.7.8.3. Right to Counsel. – It has been held that
there is nothing in the Rules which renders invalid a
preliminary investigation held without defendant’s
counsel. Not being a part of the due process clause but a
right merely created by law, preliminary investigation if
held within the statutory limitations cannot be voided.62
4.7.9.
When to Allow the Filing of Reply-Affidavits,
Rejoinders and Memoranda. –
a.
Where new issues of fact or questions of law which
are material and substantial in nature are raised
or invoked in the counter-affidavit or subsequent
pleadings; and
b.
When there exists a need for said issues or questions
to be controverted or rebutted, clarified or explained
to enable the investigating prosecutor to arrive at a
fair and judicious resolution of the case.
Section 3(e), Rule 112, Revised Rules of Criminal Procedure.
People v. Narca, G.R. No. 108488, July 21, 1997.
61
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The period for the submission of reply affidavits or rejoinders
shall not exceed five (5) days.
The investigating prosecutor shall not require or allow the filing
or submission by the parties of memoranda, unless the case
involves difficult or complicated questions of law or of fact. In
any event, the filing of memoranda by the parties shall be done
simultaneously and the period therefor shall not exceed ten (10)
days.
4.7.10. When Complaints May Be Consolidated. –
a.
When there are charges and counter-charges;
b.
When the complaints arose from one and the same
incident or transaction or series of incidents or
transactions;
c.
Cases involving common parties and founded on
factual and/or legal issues of the same or similar
character; and
d.
Multiple complaints filed before the different field
offices but arising from the same incident and the
same parties for the same cause/s of action
The complaints shall be consolidated and assigned to the
prosecutor handling the complaint with the lowest docket
number or to another prosecutor at the discretion of the head
of office.
4.7.11. Submission of the Case for Resolution. – The
investigating prosecutor shall consider the case submitted for
resolution:
a.
When the respondent cannot be subpoenaed or, if
subpoenaed, does not submit his counter-affidavit
within the reglementary period. In such a case, the
investigating prosecutor shall base his/her resolution
on the evidence presented by the complainant;63 or
Section 3 (d), Rule 112, Revised Rules of Criminal Procedure.
63
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b.
4.7.12.
a.
Upon submission by the parties of their respective
affidavits and supporting proof or documents, in
which event, he/she shall, upon the evidence thus
adduced, determine whether or not there is sufficient
ground to hold the respondent for trial.64
Preparation of the Resolution. –
When there is a finding of probable cause, the
investigating prosecutor shall prepare the resolution
and file the corresponding Information in the
appropriate court.
Any officer authorized to conduct a preliminary
investigation who is investigating an offense or
felony committed by a public officer or employee
(including a member of the PNP) where the
penalty prescribed by law is higher than prision
correccional or imprisonment for six years, or a fine
of Php6,000.00, must determine if the crime was
committed by the respondent in relation to his office.
If it was, the investigating officer shall forthwith
inform the Office of the Ombudsman which may
either: (a) take over the investigation of the case
pursuant to Section 15(1) of R.A. No. 6770,65 or (b)
deputize a prosecutor to act as special investigator
or prosecutor to assist in the investigation and
prosecution of the case pursuant to Section 31
thereof. If the investigating officer determines that
the crime was not committed by the respondent
in relation to his office, he/she shall then file the
information with the proper court.66
b.
When there is lack of probable cause, the
investigating prosecutor shall prepare the resolution
recommending the dismissal of the complaint.
Section 3 (f), Rule 112, Revised Rules of Criminal Procedure.
Republic Act No. 6770, otherwise known as “An Act Establishing the Philippine National Police
Under a Reorganized Department of the Interior and Local Government, and for Other Purposes,”
otherwise known as the “Department of the Interior and Local Government Act of 1990”.
66
Republic v. Maximiano Asuncion, G. R. No. L-108208, March 1994.
64
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4.7.13. Form of the Resolution and Number of Copies.
– The resolution shall be written in the official language,
personally and directly prepared and signed by the investigating
prosecutor. It shall be prepared in as many copies as there are
parties, plus five (5) additional copies.
a.
Caption of
following:
1.
resolution
shall
indicate
the
Complete names of all the complainants and all of
the respondents. It is not proper to use the phrase “et
al.” to refer to other complainants and respondents.
In cases referred to the prosecution by the law
enforcement agency where there is no identified
victim, as in prohibited drugs cases, the complainant
shall be the police station involved, followed by
the name and designation of the police officer
representing the police station.
In the case of a corporation or judicial entity, its
corporate name or identity shall be indicated and
written as follows, “‘X’ Corporation, represented by
its (position title), (name of corporate officer)”;
2. Case Number/s, otherwise known as the National
Prosecution Service Docket Number/s (NPS Docket
No.). – The number of a case shall be based on the
following system of sequential codes:
Sequential Codes:
• Roman numeral – NPS region and OPG number
• Two (2)–digit number – city/provincial office
• Small letter – provincial substation
• PI – for regular preliminary investigation or
summary investigation case
• INQ – for inquest case
• Two (2)–digit number – last two (2) digits of the
year
• Capital letter – month (“A” to “L” for January to
December, respectively)
• Five (5) digit number – series number for an
entire calendar year
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Illustrative examples:
I–01–INV–17A–00001
• I
–
Region I
• 01
–
ORP
• INV
–
regular
PI
or
summary
investigation case
• 17
–
year 2017
• A
–
month of January
• 00001 –
first regular PI /summary
investigation case for year 2017
I–05a–INQ–17A–00010
• I
–
Region I
• 05
–
OPP La Union
• A
–
Agoo Sub–Station
• INQ
–
inquest case
• 17
–
year 2017
• A
– month of January
• 00010 –
10th inquest case for year 2017
3.
The offense/s charged;
For offenses that are punishable under the Revised
Penal Code, the caption shall set forth the denomination
of the offense and the specific article and paragraph of
the statute violated.
Where there is another charge or counter-charge
in the same case having one case number or in case
of a consolidated resolution involving two or more
criminal cases with two or more docket numbers, the
caption shall also contain said information.
b.
4.
The date of the filing of the complaint with the office;
5.
The date of the assignment of the case to or receipt of
the case record by the investigating prosecutor; and
6.
The date that the case was submitted for resolution.
The Contents of the Body of the Resolution:
1.
Brief summary of the facts of the case;
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2.
Concise statement of the issues involved;
3.
Applicable laws and jurisprudence; and
4.
Findings, including an enumeration of all the
documentary evidence submitted by the parties and
recommendations of the investigating prosecutor.
All material details that should be found in the information
prepared by the investigating prosecutor shall be stated in
the resolution.
c.
Parts of a Resolution:
Part 1 – Shall state the nature of the case as disclosed in the
evidence presented by the complainant such as his
affidavit–complaint, the affidavit of witnesses and
documentary and physical evidence. The affidavits
shall be numbered in the order of the presentation
of the prosecution witnesses as disclosed in the list
of witnesses appearing in the information. As for the
documentary evidence, they shall be alphabetically
marked as they would be marked during the pre-trial
and trial stages of the case.
Part 2 – Shall contain the version of complainant of the
incident. The presentation of the complainant’s case
should be concise and shall not be cluttered with
details that are not necessary to show the elements
of the offense.
Part 3 – Shall allege the respondent’s version of the incident.
This must also be concise.
Part 4 – Shall contain the discussion, analysis and evaluation
by the prosecutor of the evidence presented by the
complainant and the respondent, without relying
on the weakness of the defense of the respondent. It
shall also contain the conclusion of the prosecutor.
The complainant’s and respondent’s versions of the
incident need not be repeated in this part except
to point out excerpts relating to the existence or
absence of the elements of the crime. Citations of
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pertinent laws and jurisprudence should support the
conclusions reached. Where numerical values are
important, the number shall be written in words and
figures.
d.
Parties Who Need to be Furnished with a Copy of
the Resolution. – Complainant/s, respondent/s, and
their counsels, if any.
However, if the parties are represented by counsel and
the latter’s appearance is entered formally in the record,
the counsel, not the party, shall be given a copy of the
resolution.67
e.
Signatures and Initials of Investigating
Prosecutor. — The investigating prosecutor shall sign
the resolution and if the resolution consists of two or
more pages, the prosecutor shall initial all of said pages,
excluding the signature page.
f.
Written Approval Required in the Dismissal of a
Complaint or the Filing of Information in Court.
– No Complaint/ Information may be filed or dismissed
by an investigating prosecutor without the prior written
authority or approval of the Provincial/City Prosecutor or
Prosecutor General or the Ombudsman or his Deputy.68
4.7.14. Period
to
Conduct
the
Preliminary
Investigation. – The preliminary investigation of complaints
shall be terminated and resolved within a period of sixty (60)
days from the date of assignment to the investigating prosecutor,
with a maximum of two (2) 15-day extensions in the following
cases:
a.
Capital offenses
b.
Complex issues
c.
With counter-charges
d.
Consolidation of related complaints
e.
Reassignment
Section 4, paragraph 1, Rule 112, Revised Rules of Criminal Procedure.
Section 4, paragraph 3, Rule 112, Revised Rules of Criminal Procedure.
67
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f.
Other urgent/valid reasons
Pursuant to Section 90 of Republic Act No. 9165, otherwise
known as the “Comprehensive Dangerous Drugs Act of 2004,”
the preliminary investigation of illegal drugs cases shall be
terminated within thirty (30) days from the date of filing.
4.7.15. Transmittal
of
the
Recommendatory
Resolution and Information Together with the
Complete Record of the Case. – The investigating prosecutor
shall forward his/her recommendatory and Information, together
with the complete records of the case, to the Prosecutor General/
Regional/Provincial/City Prosecutor concerned within five (5)
days from the date of his/her resolution.69
4.7.16. Preparation of the Information. – The Information
shall be personally and directly prepared by the investigating
prosecutor or such other prosecutor designated for the purpose
and signed by him/her.
o
Designation of Offense Not Binding Upon the Court.
– The designation of the offense is not binding upon
the Court.70
o
Lack of a Certification. – If the preliminary
investigation was actually conducted by the
prosecutor, the absence of a certification does not
vitiate the information, as a preliminary investigation
is not an essential part of the Information.
4.7.17. Form of the Information. – In addition to the
requirements of the Rules of Court on the sufficiency of the
Information, the following shall be observed:
a.
In writing;
b.
In the name of the “People of the Philippines”; and
c.
Against all persons who appear to be responsible for
the offense. 71
Section 4, paragraph 2, Rule 112, Revised Rules of Criminal Procedure.
Cinco v. Sandiganbayan, G.R. Nos. 92362-67, October 15, 1991.
71
Section 2, Rule 110, Revised Rules of Criminal Procedure.
69
70
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4.7.18. Sufficiency of the Information. –
a. Name of the accused – Must state the name and
surname of the accused or any appellation or nickname
he/she is known. If name cannot be ascertained, the
accused must be described under fictitious name with
a statement that his/her true name is unknown (e.g.,
John or Jane Doe).
b. Designation of the Offense Committed – To
properly inform the accused of the nature and cause of
the accusation, the Information shall state whenever
possible (1) the designation given to the offense by the
statute (if there is no such designation, reference shall
be made to the section of the law punishing it).72
i.
72
What is controlling is not the title of the complaint,
nor the designation of the offense charged or
the particular law violated, these being merely
conclusions of law made by the prosecutor, but the
description of the crime charged and the particular
facts therein recited. No Information for a crime
will be sufficient if it does not accurately and
clearly allege the elements of the crime charged.
Every element of the offense must be stated in the
Information.
Section 8, Rule 110, Revised Rules of Criminal Procedure.
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Example of Conclusion of
Law
“Sexual Abuse”, “Rape” or “Acts
of Lasciviousness”
The allegation that the accused
committed “sexual abuse” on
the victim, either by “raping”
her or committing “acts of
lasciviousness on her” is not
sufficient to convict the accused
as it does not state the acts
or omissions constituting the
offense of child abuse.73
c.
Example of Averments of
Ultimate Facts
. . . the accused “embraced”
the complainant, “held her
breast and kissed her lips”. . .
Such allegations constitute
specific averment of ultimate
facts constituting the offense
of child abuse under Section 5
of R.A. 7610. This, despite the
fact that the caption and the
preamble of the Information
designated
the
offense
charged as “Violation of R.A.
No. 7610”. The omission
to cite the specific section
of R.A. 7610 violated is not
sufficient to invalidate the
Information since there is no
doubt that “embracing” the
victim, “holding her breast”
and “kissing her lips” clearly
refer to the “ultimate facts”
of the generic term of “acts
of lasciviousness” which
is penalized under Section
5 of R.A. 7610. Hence, the
Information was valid.74
The cause of the accusation.73 – The acts or omissions
complained of as constituting the offense and the qualifying
and aggravating74 circumstances must be stated in ordinary and
concise language (not necessarily in the language used in the
statute) to enable a person of common understanding to know
what offense is being charged.75
73
People v. De La Cruz, G.R. Nos. 135554-56, June 21, 2002.
74
Olivarez v. CA, G.R. No. 163866, July 29, 2005.
Section 9, Rule 110, Revised Rules of Criminal Procedure.
75
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d.
Place where the offense was committed. – The
Information is sufficient if it can be understood from the
Information’s allegations that the offense was committed,
or some of its essential ingredients occurred at some place
within the jurisdiction of the court, unless the particular place
where it was committed constitutes an essential element of
the offense charged or is necessary for its identification.76 A
general allegation that the crime was committed within the
jurisdiction of the court is sufficient.
e. Date of the commission of the offense. – The Information
must allege the specific time and place when and where the
offense was committed, but when time is not of the essence
of the offense, time need not be alleged and proved. The
Information will still be sufficient if the evidence shows that
the offense was committed at any time within the period of
the statute of limitation and before the commencement of the
action.
f. Name of the Offended Party. – The age and date of birth
of the complainant or the accused, if eighteen (18) years of age
or below.
g. Qualifying and Generic Aggravating Circumstances
must be alleged (and proved). – Any qualifying or generic
aggravating circumstances not alleged may not be considered
by the Court even if proved during the trial.
h.
List of prosecution witnesses;
i. The full names and addresses of the parents,
custodian or guardian of the minor complainant or
accused, as the case may be;
j. The place where the accused is actually detained;
k. The full names and addresses of the complainant and
witnesses;
l. Detailed description of the recovered items, if any;
76
Section 10, Rule 110, Revised Rules of Criminal Procedure.
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m.
The full name and address of the evidence
custodian;
n.
The bail recommended, if the charge is bailable.
– The bail recommended in the resolution shall be stated
in the Information, written in words and figures, and
initialed by the investigating prosecutor.
The investigating prosecutor shall certify under oath that he/she,
as shown by the record, as an authorized officer, had personally
examined the complainant and his/her witnesses; that there is
reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted
against him and that he was given an opportunity to submit
controverting evidence; and that he is filing the Information
with the prior authority and approval of the Prosecutor General/
Provincial/City Prosecutor concerned.77
A Complaint or Information must charge ONLY ONE offense,
except when the law prescribes a single punishment for various
offenses.78 Examples of this exception are complex crime under
Art. 48 of the Revised Penal Code, or special complex crime
such as robbery with homicide, robbery with rape, or rape with
homicide.79
4.7.19. Documents to be Attached to the Information.
– An Information that is filed in court shall, as far as practicable,
be accompanied by a copy of the resolution of the investigating
prosecutor, the complainant’s affidavit, the sworn statements of
the prosecution’s witnesses, the respondent’s counter-affidavit
and the sworn statements of his/her witnesses and such other
evidence as may have been taken into account in arriving at a
determination of the existence of probable cause.80
4.7.20. Confidentiality of Reasons. – All resolutions
prepared by an investigating prosecutor after preliminary
77
Section 4, paragraph 1, Rule 112, Revised Rules of Criminal Procedure.
Section 13, Rule 110, Revised Rules of Criminal Procedure.
Ivler v. Ponce, G.R. No. 172716, November 17, 2010.
80
Section 8, Rule 112, Revised Rules of Criminal Procedure.
78
79
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investigation, whether his/her recommendation be for the filing
or dismissal of the case, shall be held in strict confidence and
shall not be made known to the parties, their counsel and/or to
any unauthorized person until the same shall have been finally
acted upon by the Prosecutor General/ Regional Prosecutor/
Provincial/ City Prosecutor or his/her duly authorized assistant
and approved for promulgation and release to the parties.
Any violation of the foregoing shall subject the investigating
prosecutor or the employee of the office concerned to severe
disciplinary action.
4.7.21. Action of the Prosecutor General or Provincial/
City Prosecutor on the Recommendatory Resolution. –
The Prosecutor General or Provincial/City Prosecutor concerned
shall act on all resolutions within a period of thirty (30) days from
receipt thereof, extendible for another thirty (30) days in cases
involving complex issues and/or heavy workload of the head of
office, by either:
a.
Approving the resolution and directing the transmittal
of a copy thereof to the parties; or,
b.
Disapproving the resolution and returning the same
to the investigating prosecutor for further appropriate
action; or
c.
Reversing the recommendation of the investigating
prosecutor, in which case, the Prosecutor General or
Provincial/City Prosecutor may file the corresponding
Information in court; or
d.
Direct any other state prosecutor or assistant
prosecutor, as the case may be, to do so.
In both instances, there is no more need for the Head of Office
concerned to conduct another preliminary investigation.81
4.7.22. Re-opening of the Preliminary Investigation. –
After a case under preliminary investigation has been submitted
for resolution under the provisions of the preceding section
81
Section 4, paragraph 3, Rule 112, Revised Rules of Criminal Procedure.
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but before the approval and promulgation of said resolution,
the preliminary investigation may, upon motion of a party, be
reopened for the purpose of receiving newly discovered evidence
and/or in cases where respondent has not been notified of the
complaint. The re-opening should be with the prior authorization
of the Prosecutor General or Provincial/City Prosecutor
concerned. The preliminary investigation shall be reopened
subject to the following conditions:
a.
The motion is verified and a copy thereof furnished the
opposing party;
b.
The motion is accompanied with the newly discovered
evidence and/or respondent’s counter-affidavit; and,
c.
The motion sufficiently and satisfactorily shows valid
and justifiable reason for the failure of the movant to
submit the newly discovered evidence or the counteraffidavit during the preliminary investigation.
No second motion to reopen shall be entertained.
4.7.23.
Promulgation of the Resolution; Modes of
Service. – The resolution shall be promulgated by furnishing
the parties or their counsel a copy thereof by:
a.
Personal service by process servers, law enforcement
or barangay personnel; or
b.
Registered mail with return card to the parties.
4.7.24. Rules in Filing of Information in Court. –
a.
An Information filed in court shall be supported by the
affidavits and counter-affidavits of the parties and their
witnesses, together with other supporting evidence
and the resolution on the case.82
b.
The record of the preliminary investigation conducted
by a prosecutor shall not form part of the record of the
case. 83
Section 7(a), Rule 112, Revised Rules of Criminal Procedure.
Section 7(b), Rule 112, Revised Rules of Criminal Procedure.
82
83
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4.7.25. On a Motion for Reconsideration. – A motion
for reconsideration filed within fifteen (15) days from receipt of
the resolution shall be acted upon within thirty (30) days from
receipt of the motion by the assigned prosecutor. The motion
must be verified and accompanied by proof of service to the
opposing party. It must state clearly and distinctly the grounds
relied upon in support of the motion.
Where the Information has already been filed in court, the
Prosecutor General or Provincial/City Prosecutor may not give
due course to the motion for reconsideration until there is a
showing that the movant has filed a motion for the suspension
of the proceedings with the court and the same has been granted
by the court.
The Office of the Prosecutor General or Provincial/City Prosecutor
shall resolve the motion for reconsideration within the period
fixed by the Court.
Once the motion for reconsideration has been resolved, the
Prosecutor General or Provincial/City Prosecutor shall file the
appropriate Manifestation informing the Court of the action
taken thereon and asking the Court either to proceed with the
case, or withdraw the Information, or cause such other measures
to be done as may be warranted. A copy of the resolution on the
motion for reconsideration shall be attached thereto.
4.7.26. Action on a Reinvestigation. – Before the filing
of an Information in court, a motion for reinvestigation of the
case may be filed with the Prosecutor General or Provincial/City
Prosecutor.
The rule therefore in this jurisdiction is that 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 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
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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.84
A reinvestigation is proper only if the accused’s substantial rights
would be impaired.85
4.7.26.1. Instances When a Reinvestigation may
be Conducted. – Based on newly discovered evidence,
reinvestigation may be conducted in the following instances:
a.
Pursuant to a Court Order for Cases Already
Filed in Court. – Where the Court orders the
reinvestigation of a case, it cannot at the same
time choose the prosecutor who will conduct
the reinvestigation. The head of office shall have
discretion to assign the reinvestigation of the case to
a specific prosecutor, and not the judge issuing the
Court order.
The reinvestigating prosecutor shall conduct the
proceedings within the period prescribed in the Court
order. The review and approval of the resolution after
reinvestigation shall also be done within the period
prescribed in the order. After promulgation of the
resolution, the office concerned shall immediately
take appropriate action to either amend or withdraw
the Information or proceed with the trial, as the case
may be.
b.
Pursuant to an Order or Directive from the
Secretary of Justice or Regional Prosecutor.
– The Secretary of Justice or Regional Prosecutor may
order the reinvestigation of a case upon motion filed
by the interested party or upon appeal or petition for
review of the resolution of the Prosecutor General or
Provincial/City Prosecutor.
The Prosecutor General or Provincial/ City
Prosecutor shall assign the reinvestigation of the case
84
85
Crespo v. Mogul, G. R. No. L-53373, June 30, 1987.
Antiporda, Jr. v. Garchitorena, G.R. No. 133289, December 23, 1999.
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to a prosecutor who shall immediately conduct and
resolve the case within the period prescribed in the
order.
Section 4.8.
Relevant Jurisprudence. –
a.
The established rule is that the date of delivery of
pleadings to a private letter–forwarding agency is not to
be considered as the date of filing thereof in court, and that
in such cases, the date of actual receipt by the court, and
not the date of delivery to the private carrier, is deemed
the date of filing of that pleading.86
b.
The prosecutor is not bound by the qualification of the
crime but by the evidence presented during the preliminary
investigation.87
c.
If, after preliminary investigation, a case is filed in Court,
the prosecutor cannot file another Information charging
a different offense based on the same preliminary
investigation. He must conduct another preliminary
investigation.88
d.
A new preliminary investigation is not called for when
the Court orders the filing of the correct Information
involving a cognate offense, such as unfair competition to
infringement of trademarks.89
e.
A new preliminary investigation is not necessary after the
amendment of the information for the reason that there
has been no change in the nature of the crime charged,
which is rebellion, and moreover, the accused petitioner
who was already custody when the amended was filed,
should have asked, but did not, for a re-investigation of
said case, within the period five (5) days from the time he
learned of the amended information.90
f.
Where only a formal amendment was involved – such as
frustrated murder to consummated murder where the
Charter Chemical and Coating Corporation v. Tan, G.R. No. 163891, May 21, 2009.
Orquinaza v. People, G. R. No. 165596, November 17, 2005.
86
87
Luciano v. Mariano, et. al., G.R. No. L-32950, July 30, 1971.
Sy Lim v. CA, G.R. No. L-37494, March 30, 1982.
90
Lava v. Gonzales, G.R. No. L-23048, July 31, 1964.
88
89
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death of the victim supervened, a preliminary investigation
is unnecessary and cannot be demanded by the accused.91
g.
It is a fundamental principle that when on its face, the
Information is null and void for lack of authority to file the
same, it cannot be cured nor resurrected by an amendment.
Another preliminary investigation must be undertaken
and thereafter, based on the evidence adduced, a new
Information should be filed.92
h.
There can be no question that respondent was prejudiced
by the delay, having to be confined for more than four
oppressive years for failure of the investigating prosecutors
to comply with the law on preliminary investigation. As
aptly held by the Court of Appeals, respondent’s right to
due process had been violated.93
i.
The Secretary of Justice, as far as practicable, should
refrain from entertaining a petition for review or appeal
from the action of the prosecutor when the Complaint or
Information has been filed in Court. The matter should be
left entirely for the determination of the Court.94
j.
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 respondent is probably guilty thereof,
and should be held for trial. Probable cause is meant
such set of facts and circumstances, which would lead a
reasonably discreet and prudent man to believe that the
offense charged in the Information, or any offense included
therein, has been committed by the person sought to be
arrested. In determining probable cause, the average
person weighs facts and circumstances without resorting
to the calibrations of the rules of evidence of which he
has no technical knowledge. He/she relies on common
sense. A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has
91 Teehankee, Jr. v. Madayag, G.R. No. 103102, March 6, 1992.
92
Cruz v. Sandiganbayan, G.R. No. 94595, February 26, 1991.
93
People v. SP04 Emiliano Anonas, G.R. No. 156847, January 31, 2007.
94
Dee v. Court of Appeals, G.R. No. 111153, November 21, 1994 citing Crespo v. Mogul, supra.
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been committed and that it was committed by the accused.
Probable cause demands more than bare suspicion, but it
requires less than evidence that would justify a conviction.95
k.
The authority of the Ombudsman to prosecute cases
involving public officers and employees before the regular
courts does not conflict with the power of the regular
prosecutors under the Department of Justice to control and
direct the prosecution of all criminal actions under Rule
110 of the Revised Rules of Criminal Procedure. The Rules
of Court must be read in conjunction with RA 6770 which
charged the Ombudsman with the duty to investigate and
prosecute all illegal acts and omissions of public officers
and employees. The power of the Ombudsman under
Section 15 (1) of RA 6770 is not an exclusive authority but
rather a shared or concurrent authority in respect of the
offense charged.96
l.
Under DOJ Circular No. 26 dated July 3, 2008, a
prosecutor has legal authority to take cognizance of, and
conduct preliminary investigation/inquest proceedings
on complaints filed before him/her involving violations of
penal laws, regardless of whether or not the respondents
therein are public officials and/or employees; Provided,
however, the Ombudsman, in the exercise of its primary
jurisdiction over cases cognizable by the Sandiganbayan,
may take over, at any stage, from any investigating agency
of the government, the investigation of such cases.97
m.
Substantial adherence to the requirements of the law
governing the conduct of Preliminary Investigations,
including substantial compliance with the time limitation
prescribed by the law for the resolution of the case by
the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law.
A delay of close to three (3) years cannot be deemed
reasonable or justifiable in the light of the circumstance
surrounding in the case.98
Clay & Feather International, Inc. v. Lichaytoo, supra.
Uy v. Sandiganbayan, supra.
97
Honasan II v. The Panel of Investigating Prosecutors of the DOJ, G.R. No. 159747, April 13,
2004.
98
Tatad v. Sandiganbayan, G.R. Nos. L-72335-39 , March 21, 1999.
95
96
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n.
The principle is not, however, applicable where the delay
in the termination of the preliminary investigation cannot
be imputed solely to the prosecution but because of
incidents which are attributable to the accused and his/
her counsel. 99
Gonzales v. Sandiganbayan, G.R. No. 94750, July 16, 1991; Defensor-Santiago v. Garchitorena,
G.R. No. 109266, December 2, 1993.
99
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CHAPTER V
ARREST
Section 5.1. Remedy of the Prosecutor When No Warrant
of Arrest Was Issued by the Judge. – If the investigating judge
is satisfied that there is probable cause but did not issue the warrant of
arrest contrary to the prosecutor/s belief that there is a need to place
the accused under custody, the speedy and adequate remedy of the
prosecutor is to immediately file the Information so that the Regional
Trial Court judge may issue the warrant for the arrest of the accused.100
Section 5.2. Request for a Copy of the Return. – If a warrant
of arrest has been issued, the prosecutor may request the warrant officer
that he/she be furnished with the officer’s return relative thereto. The
prosecutor shall, as far as practicable, coordinate with the witnesses
from time to time to ascertain the whereabouts of the accused pending
the latter’s arrest.
Section 5.3.
Relevant Jurisprudence. –
a.
Warrantless arrests made three (3) days after the
commission of the crime101 or nineteen (19) hours thereafter
were held to be unlawful.102
b.
The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably
guilty of committing the offense, is based on actual facts,
i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled “with good
faith on the part of the peace officers making the arrest.”103
Samulde v. Salvani, Jr., G.R. No. 78606, September 26, 1988.
People v. Monda, G.R. Nos. 105000-01, November 22, 1993.
102
People v. Manlulu, G.R. No. 102140, April 22, 1994.
103
People v. Doria, G.R. No. 125299, January 22, 1999.
100
101
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c.
An arrest signifies restraint on person, depriving one of his
own will and liberty, binding him to become obedient to
the will of the law.104
d.
A policeman is never justified in using unnecessary force
or in treating the offender with wanton violence, or in
resorting to dangerous means when the arrest could be
effected otherwise.105
e.
An alias warrant of arrest is not stale or functus officio.
Unlike a warrant, which is valid only for ten (10) days, a
warrant of arrest remains valid until arrest is effected or
the warrant lifted.106
f.
Any objection, defect or irregularity attending an arrest
must be made before the accused enters his plea on
arraignment. Having failed to move for the quashing of
the Information against them before their arraignment,
appellants are now estopped from questioning the legality
of their arrest.107
g.
A letter invitation is equivalent to an arrest. Where
the invitation comes from a powerful group composed
predominantly of ranking military officers and the
designated interrogation site as a military camp, this is
obviously a command or an order of arrest.108
Larranaga v. Court of Appeals, G.R. No. 130644, March 13, 1998.
SP02 Cabanlig v. Sandiganbayan, G.R. No. 148431, July 28, 2005.
106
Managan v. Court of First Instance, G.R. No. 82760, August 30, 1990.
107
People v. Vasquez, G.R. No. 200304, January 15, 2014.
108
Sanchez v. Demetriou, G.R. Nos. 111771-77, November 9, 1993.
104
105
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CHAPTER VI
BAIL
Section 6.1.
Concept. –
6.1.1.
Purpose of Bail. – The purpose of bail is to
guarantee the appearance of the accused at the trial, or whenever
so required by the trial court. xxx. Thus, bail acts as a reconciling
mechanism to accommodate both the accused’s interest in his/
her provisional liberty before or during the trial, and the society’s
interest in assuring the accused’s presence at trial.109
6.1.2.
Nature of the Right to Bail. – The right to bail is
guaranteed by the Constitution. It is the duty of the prosecutor to
recommend such amount of bail to the courts of justice as, in his/
her opinion, would ensure the appearance of an accused person
when so required by the court.
6.1.3.
Basis of Bail. – The basis for determining bail is the
penalty prescribed by law for the offense charged and not the
penalty actually imposed for the accused in view of the attendant
circumstances.
6.1.4. Bail, a Matter of Right. – Bail is the matter of right
in the following instances:
a.
Before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court
in Cities or Municipal Circuit Trial Court; and
b. Before conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua,
or life imprisonment.110
6.1.5.
Bail, When Discretionary. – Bail is discretionary
in the following instances:
a.
109
110
Before conviction, when the offense charged is
Enrile v. Sandiganbayan, G.R. No. 213847, August 18, 2015.
Section 4, Rule 114, Revised Rules of Criminal Procedure.
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punishable by death, reclusion perpetua, or life
imprisonment.
b.
Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua, or
life imprisonment, admission to bail is discretionary.
The Regional Trial Court may grant or deny bail
depending on the existence or non–existence of any of
the following circumstances:
c.
That the accused is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteracion;
d.
That the accused has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his/her bail without valid justification;
e.
That the accused committed the offense while under
probation, parole, or conditional pardon;
f.
That the circumstances of the case of the accused
indicate the probability of flight if released on bail; or
g
That there is undue risk that the accused may commit
another crime during the pendency of the appeal.
If upon conviction, the Regional Trial Court imposes the penalty
of imprisonment in excess of six (6) years, but not exceeding
twenty (20) years, the accused shall be denied bail or his/her
bail shall be cancelled, upon showing by the prosecution, with
notice to the accused, of any of the foregoing circumstances.
If none of the circumstances enumerated above exists, the grant
of bail becomes a matter of right.111
6.1.6. When Bail is not Required. – Bail shall not be
required in the following cases:
a.
Of a person charged with violation of a municipal or city
ordinance; a light felony; and/or a criminal offense, the
Section 5, Rule 114, Revised Rules of Criminal Procedure.
111
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prescribed penalty for which is not higher than six (6)
months imprisonment and/or a fine of Two Thousand
Pesos (Php2,000.00), or both, where the person has
established to the satisfaction of the Court or any other
appropriate authority hearing the case that he/she is
unable to post the required cash or bail bond.
o
Exceptions:
Ø
A person is caught committing the offense in
flagrante delicto;
Ø
A person confesses to the commission of the
offense unless the confession is later repudiated
by him/her in a sworn statement or in an open
court as having been extracted through force or
intimidation; A person is found to have previously
escaped from legal confinement, evaded sentence,
or jumped bail;
Ø
A person found to have previously escaped from
legal confinement, evaded sentence, or jumped
bail;
Ø
A person is found to have previously violated the
provisions of Section 2 of RA 6036; 112
Ø
A person has previously been pardoned by the
Section 2 of Republic Act No. 6036, otherwise known as “An Act Providing That Bail Shall Not,
With Certain Exceptions, Be Required In Cases of Violations of Municipal or City Ordinances
and In Criminal Offenses When The Prescribed Penalty For Such Offenses Is Not Higher Than
Arresto Mayor and/or a Fine of Two Thousand Pesos or Both.”) provides, “Instead of bail, the
person charged with any offense contemplated by Section 1 hereof shall be required to sign in
the presence of two witnesses of good standing in the community a sworn statement binding
himself, pending final decision of his case, to report to the Clerk of the Court hearing his case
periodically every two weeks. The Court may, in its discretion and with the consent of the person
charged, require further that he be placed under the custody and subject to the authority of a
responsible citizen in the community who may be willing to accept the responsibility. In such a
case the affidavit herein mentioned shall include a statement of the person charged that he binds
himself to accept the authority of the citizen so appointed by the Court. The Clerk of Court shall
immediately report the presence of the accused person to the Court. Except when his failure to
report is for justifiable reasons including circumstances beyond his control to be determined by
the Court, any violation of this sworn statement shall justify the Court to order his immediate
arrest unless he files bail in the amount forthwith fixed by the Court.” (See Appendix E)
112
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municipal or city mayor for violations of municipal
or city ordinance for at least two (2) times.113
b.
Ø
A person is found to be a recidivist or a habitual
delinquent or has been previously convicted for
an offense to which the law or ordinance attaches
an equal or greater penalty or for two or more
offenses to which it attaches a lighter penalty; A
person commits the offense while on parole or
under conditional pardon; and
Ø
A person commits the offense while on parole or
under conditional pardon.
No bail shall also be required when the law or the
Rules issued by the Supreme Court so provide.
When a person has been in custody for a period equal
to or more than the possible maximum imprisonment
of the offense charged to which he/she may be
sentenced, he/she shall be released immediately
without prejudice to the continuation of the trial
thereof or the proceedings on appeal. In case the
maximum penalty to which the accused may be
sentenced is destierro, he/she shall be released after
thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more
than the minimum of the principal penalty prescribed
for the offense charged without application of the
Indeterminate Sentence Law or any modifying
circumstance, shall be released on a reduced bail or
on his/her own recognizance, at the discretion of the
Court.114
113
114
Ibid.
Section 16, Rule 114, Revised Rules of Criminal Procedure.
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Section 6.2.
Duties of a Prosecutor. –
It is the Duty of the Prosecutor. –
a.
To recommend such amount of bail to the courts of justice as,
in his/her opinion, would ensure the appearance of an accused
person when so required by the court.
b.
To use the DOJ Bail Bond Guide as primary guide in
recommending bail.
c.
To apply the criteria in Section 5 hereof, where justice
demands reduction or increase of the amount of bail as
indicated in the Bail Bond Guide; Provided, However, that any
recommendation by the trial prosecutor for the reduction or
increase of the amount of bail shall be with the prior approval
of the Prosecutor General or Provincial/City Prosecutor
concerned.
d.
To be able to refute, among others, the following factors during
the hearing on the application for bail:
•
Nature and circumstances of the crime;
•
Character and reputation of the accused;
•
Weight of the evidence against him/her;
•
Probability of the accused appearing at the trial, whether
or not the accused is a fugitive from justice, and whether
or not the accused is under bond in other cases. 115
Section 6.3. Right to Notice. – The Court must give reasonable
notice of the hearing to the prosecutor or require him/her to submit
his/her recommendation.116
Section 6.4. Right to Bail in Inquest Cases. – Any person
lawfully arrested and detained but who has not yet been formally
charged in court can seek provisional release through the filing of an
application for bail or release on recognizance.
115
116
Section 6, Rule 144, Revised Rules of Criminal Procedure.
Section 18, Rule 114, Revised Rules of Criminal Procedure.
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Section 6.5. Posting of Bail by the Arrested/Detained Person.
– Any person in custody who is not yet charged in court may apply for
bail with any court in the province, city, or municipality where he/she
is held.117
a.
If offense is bailable. – The arrested/detained person
may post bail before the filing of the Information without
being deemed to have waived his/her right to a preliminary
investigation. For this purpose, the inquest prosecutor shall
simply prepare a certification that the person arrested is
being charged for an offense in an inquest proceeding and
specifying the recommended bail therefor.
b.
If offense is non–bailable. – The inquest prosecutor
must move for the suspension of the bail hearing until the
fifteen (15)-day preliminary investigation of the inquest
proceeding is terminated and the resolution is promulgated.
Section 6.6. Criteria in Recommending the Amount of Bail.
– In recommending the amount of bail to be granted by the court, the
prosecutor shall take into consideration the following standards and
criteria:
a. Financial ability of the respondent/accused to post bail;
b. Nature and circumstances of the offense;
c. Penalty for the offense charged;
d. Age, state of health, character, and reputation of the
respondent/accused under detention;
e. Weight of the evidence against the respondent/accused under
detention;
f.
Forfeiture of other bonds and pendency of other cases wherein
the respondent/accused under detention is under bond;
g. The fact that respondent/accused under detention was a
fugitive from justice when apprehended;
117
Section 17, Rule 114, Revised Rules of Criminal Procedure.
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h. Other factors affecting the probability of the accused appearing
at the trial.118
Section 6.7. Rules in Computing the Bail to be
Recommended. – To achieve uniformity in the amount of bail to be
recommended, the following rules shall be observed:
a.
Where the penalty is reclusion perpetua, life imprisonment,
reclusion perpetua to death, or death, bail is not a matter of
right; hence, it shall not be recommended.
However, when the accused is a minor, the prosecutor shall
take into consideration the privilege mitigating circumstance
of minority in recommending bail.119
b.
Where bail is a matter of right and the imposable penalty is
imprisonment and/or fine, the bail shall be computed on the
basis of the penalty of imprisonment applying the following
rules:
•
Where the penalty is reclusion temporal (regardless of
period) to reclusion perpetua, bail shall be computed
based on the maximum of reclusion temporal.
•
Where the imposable penalty is correccional or afflictive,
bail shall be based on the maximum of the penalty,
multiplied by Php2,000.00. A fraction of a year shall be
rounded–off to one year.
•
For crimes covered by the Rules on Summary Procedure
and Republic Act No. 6036, bail is not required except
when respondent/ accused is under arrest, in which case,
bail shall be computed in accordance with this guideline.
•
For crimes of reckless imprudence resulting in homicide
arising from violation of the Land Transportation and
Traffic Code, bail shall be Php30,000.00 per deceased
person.
§
118
119
Section 6, Rule 114, Revised Rules of Criminal Procedure.
Section 34, “Juvenile Justice and Welfare Act of 2006”.
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For violation of Republic Act No. 9262, we should also
take into consideration the degrees of the penalties
imposed
§
c.
d.
68
Where the imposable penalty is only a fine, bail shall be
computed as follows:
•
Fine not exceeding Php2,000.00, bail is not required.
•
Fine of more than Php2,000.00, bail shall be 50% of the
fine but should not exceed Php30,000.00.
•
In case of reckless imprudence resulting to damage to
property, bail shall be three-eights (3/8) of the value
of the damage but not exceeding Php30,000.00, except
when covered by the Rules on Summary Procedure.
Bail based on the maximum penalty, multiplied by
Php10,000.00 shall be applied to the following offenses
under the following laws:
•
R.A. No. 9165 (Comprehensive Dangerous Drugs Act
of 2002);
•
R.A. No. 10883 (New Anti–Carnapping Act of 2016),
except paragraph 3 of Section 3 thereof;
•
R.A. No. 7659 (Death Penalty or Certain Heinous
Crime);
•
Presidential Decree No. 1866 (Illegal Possession of
Firearms, Ammunition or Explosives), as amended by
R.A. No. 8294 and further amended by R.A. No. 10591;
•
R.A. No. 1937 (Tariff and Customs Code), as amended;
•
Rebellion, insurrection or coup d’etat as amended by
R.A. No. 6968;
•
R.A. No. 7610, as amended (Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act);
•
R.A. No. 9208 (Anti–Trafficking in Persons Act of
2003), as amended by RA 10364.
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Section 6.8. Hearing on Petition for Bail is Required
in Non-Bailable Offenses. – The prosecutor shall ensure that
a hearing on the petition for bail is conducted by the judge as it is
absolutely indispensable for the latter to properly determine whether
the prosecution’s evidence is weak or strong on the issue of whether or
not to grant bail to an accused charged with a heinous crime where the
imposable penalty is death, reclusion perpetua, or life imprisonment.120
6.8.1.
Exception. – An exception to the rule in non–bailable
offenses punishable by reclusion perpetua, life imprisonment, or
death is when the accused is a minor since minority is a special
mitigating circumstance that allows the imposition of the penalty
one degree lower than that prescribed by law,121 aside from the
fact that R.A. No. 9344, otherwise known as the “Juvenile Justice
and Welfare Act of 2006”, provides that every child in conflict
with the law (CICL) shall be entitled to bail and that the mitigating
circumstance of minority should be taken into consideration in
the hearing for the petition for bail.
Section 6.9. Right of the Prosecution to Present All
Evidence during the Bail Hearing. – Whether the motion for bail
of a defendant who is in custody for an offense punishable by reclusion
perpetua, life imprisonment, or death be resolved in a summary
proceeding or in the course of a regular trial, the prosecution must
be given an opportunity to present, within a reasonable time, all the
evidence that it may desire to introduce before the Court should resolve
the motion for bail.122
Section 6.10. Effect of a Denial of the Opportunity to Present
Evidence for Purposes of the Petition for Bail. – Should the
prosecution be denied of the opportunity to present all the evidence it
may desire to introduce, there would be a violation of procedural due
process and the order of the Court granting bail should be considered
void.
Section 6.11. Petition for Bail in Continuous Trial. – Petition
for bail filed after the filing of the information shall be set for summary
hearing after arraignment and pre-trial. Testimony of a witness in
120
Tabao v. Espina, A.M. No. RTJ-96-1347, June 14, 1996.
Bravo v. Borja, G.R. No. L-65228, February 18, 1985.
People v. Antona, G.R. No. 137681, January 31, 2002 citing People v. San Diego, G.R. No. L29676, December 24, 1968.
121
122
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petition for bail maybe in the form allowed under the Form of Testimony
of the Revised Guidelines, provided that the demeanor of the witness is
not essential in determining his/her credibility.
A petition for bail shall be heard and resolved within a non–extendible
period of thirty (30) calendar days from date of the first hearing,
except in drug cases which shall be heard and resolved within twenty
(20) calendar days, without need of oral argument and submission of
memoranda, consistent with the summary nature of the proceedings.
Motion for reconsideration on the resolution of petition for bail shall be
resolved within a non–extendible period of ten (10) calendar days from
date of submission of the motion.123
Where there are several accused and one or two filed a petition to
bail, the trial prosecutor shall, before presentation of his first witness,
manifest in open court that the evidence to be presented in the hearing
of the petition for bail shall be adopted as its evidence–in–chief, with
the reservation to present additional evidence during the trial proper.
Section 6.12. Cancellation of the Bail Bond. – Upon application
by the bondsmen with due notice to the prosecutor, the bail bond may
be cancelled upon surrender of the accused or presentation of proof of
his/her death.
The bail bond shall be deemed automatically cancelled upon acquittal of
the accused or dismissal of the case or execution of the final judgment
of conviction.
In all instances, the cancellation shall be without prejudice to any
liability on the bond.
Section 6.13.
Other Matters. –
6.13.1. Release on Recognizance; Guidelines. –
a.
Whenever allowed pursuant to law or the Rules of
Court, the Court may release a person in custody on his
own recognizance or that of a responsible person.
b. A hearing on the petition for the custody of the accused
for the purposes of his/her release on recognizance is
mandatory.124
123
124
Revised Guidelines for Continuous Trial of Criminal Cases. (See Appendix F)
Loyola v. Gabo, Jr., A.M. No. RTJ-00-15-24, January 26, 2000.
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c.
The prosecutor should see to it that hearing is conducted
to ensure that the requirements of Sections 1 and 2 of
R.A. No. 6036 are complied with.125
6.13.2. Requirements for the Grant or Recognizance
Under Republic Act No. 6036. – The trial prosecutor should,
during the hearing on recognizance, see to it that:
a.
The accused comes within the coverage of Section 1 of
R.A. No. 6036 and R.A. No. 9344 (Juvenile Justice and
Welfare Act).
b.
The accused shall sign in the presence of two (2)
witnesses of good standing in the community, a sworn
statement binding himself, pending final decision of
his case, to report to the Clerk of Court hearing his case
periodically every two (2) weeks.
c.
In case the Court opts to place the accused under the
custody of the responsible person in the community,
the prosecutor should see to it that:
Ø
Such person under whose custody the accused is
placed, shall execute his own affidavit stating his
willingness to accept custody of the accused; and
Ø
The accused shall also include in his/her own
affidavit mentioned above, a statement that he/she
binds himself/herself to accept the responsibility
of the citizen so appointed by the Court as his/her
custodian.
Section 6.14. Relevant Jurisprudence. –
a.
125
It is axiomatic that a Court cannot entertain an accused’s
motion or petition for bail unless he/she is in the custody
of the law. xxx A person is considered to be in the custody
of the law(a) when he/she is arrested either by virtue of a
warrant of arrest issued pursuant to Section 6, Rule 112, or
even without a warrant under Section 5, Rule 113 in relation
to Section 7, Rule 112 of the Revised Rules of Court, or (b)
Ibid.
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when he/she has voluntarily submitted to the jurisdiction
of the Court by surrendering to the proper authorities.126
b.
c.
An accused who was charged in Court with murder
without the benefit of a preliminary investigation was
entitled to be released on bail as a matter of right pending
the preliminary investigation, reserving to the prosecutor,
after the preliminary investigation, the right to ask the
trial court for the cancellation of the bail should he/she
believe the evidence of guilt of the accused to be strong.127
Although the right to bail is principally for the benefit
of the accused, in the judicial determination of the
availability of the right, the prosecution should be afforded
procedural due process. Thus, in the summary proceeding
on a motion praying for admission to bail, the prosecution
should be given the opportunity to present evidence and,
thereafter, the Court should spell out at least a resume of
the evidence on which its order granting or denying bail is
based. Otherwise, the order is defective and voidable.128
Dinapol v. Baldado, A.M. No. RTJ-92-898, August 5, 1993.
Tolentino v. Camano, Jr., A.M. No. RTJ-00-1522, January 20, 2000.
128
Carpio, et al. v. Maglalang, G.R. No. 78162, April 19, 1991.
126
127
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CHAPTER VII
ARRAIGNMENT
Section 7.1. Concept. – Arraignment, being a mandatory
requirement, necessitates the presence of the accused in Court who
should personally enter a plea after the reading of the Information in a
language or dialect understandable to him/her.129
It is the formal mode and manner of implementing the constitutional
right of the accused to be informed of the nature and cause of the
accusation against him/her.130 An arraignment is necessary in order to
fix the identity of the accused, to inform him/her of the charge, and to
give him/her an opportunity to plead.131
The filing of a petition for review affects the arraignment of the accused
in court.132
Section 7.2.
Duties of The Trial Prosecutor. –
Before
Arraignment
During
Arraignment
After
Arraignment
1. Examine resolution
and
information
to make necessary
r e v i s i o n s /
corrections
and
to ensure that the
information
is
sufficient in form
and substance;
1. To be present during
the arraignment;
1. Must
prepare
witnesses
for
trial;
2. Secure attendance
of
the
private
offended
party
during arraignment
for purposes of
plea
bargaining,
determination of
civil liability and
other
matters
requiring his/ her
presence.132
2. Must be attentive
at all times during
the
arraignment
to ensure, among
others, that the
requirements of a
valid
arraignment
are duly observed;
ascertain the identity
of the accused; and
the
Information
being read to the
accused is the same
Information as filed.
2. G o v e r n m e n t
w i t n e s s e s
should, as much
as
practicable,
be presented in
accordance with
the logical and
chronological
sequence of the
technical aspects
to be proved.
Section 1(b), Rule 116, Revised Rules of Criminal Procedure.
Section 13[2], 1987 Constitution of the Philippines.
131
14 Am. Jur., p. 939; G.V. Jacinto, Criminal Procedure.
132
Section 1(f), Rule 116 of the Revised Rules of Criminal Procedure.
129
130
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Section 7.3.
Relevant Jurisprudence–
a.
While the pendency of a petition for review is a ground for
suspension of the arraignment, the afore-cited provision
(Section 11, Rule 116 of the Revised Rules of Criminal
Procedure) limits the deferment of the arraignment to a
period of sixty (60) days reckoned from the filing of the
petition with the reviewing office. It follows, therefore,
that after the expiration of this period, the trial court is
bound to arraign the accused or to deny the motion to defer
arraignment.133
b.
Procedurally speaking, after the filing of the Information,
the Court is in complete control of the case and any
disposition therein is subject to its sound discretion. The
decision to suspend arraignment to await the resolution
of an appeal with the Secretary of Justice is an exercise of
such discretion.134
Trinidad and Trinidad v. Ang, G.R. No. 192898, January 31, 2011 citing Samson v. Daway, G.R.
Nos. 160054-55, July 21, 2004.
134
Solar Team Entertainment, Inc. v. How, G.R. No. 140863, August 22, 2000.
133
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CHAPTER VIII
PLEA BARGAINING
Section 8.1. Concept. – Plea Bargaining is a process where the
accused usually pleads guilty to a lesser offense or to only one or some of
the counts of a multi–count indictment in return for a lighter sentence
than that for the graver charge.135
In criminal prosecution, the accused has to plead to the indictment,
which he/she may do:
a.
By pleading to the jurisdiction, that is, alleging that
the court has no jurisdiction to try him;
b.
By a demurrer; or
c.
By some plea in bar, either a general plea or a specific
plea.136
Section 8.2.
Applicable Rules. –
8.2.1.
Plea Bargaining Except in Drug Cases. – If
the accused desires to enter a plea of guilty to a
lesser offense, plea bargaining should immediately
proceed, provided that the private offended party in
private crimes, or the arresting officer in victimless
crimes, is present to give conformity to the plea
bargaining. Thereafter, judgment shall immediately
be rendered in the same proceedings.137
8.2.2.
Plea of Guilt to the Crime Charged in the
Information. – If the accused pleads guilty to the
crime charged in the Information, judgment shall
immediately be rendered, except in those cases
involving capital offenses.138
Black’s Law Dictionary 1037 (5th ed. 1979).
Osborn’s Concise Law Dictionary 254 (15th ed.)
137
Revised Guidelines for Continuous Trial for Criminal Cases, A.M. No. 15-06-10-SC. (See
135
136
Appendix F)
138
Ibid.
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8.2.3.
Where No Plea Bargaining or Plea of Guilt
Takes Place. – If the accused does not enter
a plea of guilt, whether to a lesser offense or the
offense charged in the Information, the Court shall
immediately proceed with the arraignment of the
accused and, thereafter, indicate the pre-trial and
trial dates in the Order.139
8.2.4. When the Accused Pleads Guilty to a Lesser
Offense. –
The Trial Prosecutor. –
139
a.
Shall immediately move for the suspension of the
proceedings to enable him/her to confer with the
private complainant and evaluate the implications
of the offer of the plea bargaining.
b.
May dispense with the presentation of evidence, the
lesser offense which is not a capital, offense unless
the Court directs him/her to do so for purposes of
determining the penalty to be imposed.
c.
May motu proprio, with the consent of the offended
party, agree to the offer of the accused to plead
guilty to a lesser offense if the penalty imposable
therefor is prision correccional (maximum
of six [6] years) or less or a fine not exceeding
Php12,000.00.
d.
Shall
first
submit
his/her
comment/
recommendation to the Provincial or City Prosecutor
or to the Prosecutor General, as the case may be,
for approval, when the penalty imposable for the
offense charged is prision mayor (at least six [6]
years and one [1] day or higher) or a fine exceeding
Php12,000.00. If the recommendation is approved
in writing, he/she may, with the consent of the
offended party, agree to a plea of guilty to a lesser
offense. For this purpose, the Prosecutor General
or the Provincial or City Prosecutor concerned shall
Ibid.
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act on his/her comment/recommendation within
forty–eight (48) hours from receipt thereof. In no
case shall the subject plea to a lesser offense be
allowed without the written approval of the above
respective heads of office.
8.2.5.
When a Plea of Guilty is allowed - In all cases,
the penalty for the lesser offense to which the accused
may be allowed to plead guilty shall not be more than
two (2) degrees lower than the imposable penalty for
the crime charged, notwithstanding the presence of
mitigating circumstances. The lesser offense shall also
be one that is necessarily related to the offense charged
or the offense must belong to the same classification
or title under the Revised Penal Code or the relevant
special laws.
8.2.6.
When a Plea of Guilty to a Lesser Offense is
Not Allowed. – A plea of guilty to a lesser offense
shall not be allowed when it contravenes logic and
common sense as to be unconscionable, thereby
resulting in injustice. Thus, where the offense charged
is homicide, a plea of guilty to a lesser offense of
frustrated or attempted homicide may not be allowed,
since the fact of death cannot be reconciled with the
plea of guilty to frustrated or attempted homicide.
Homicide necessarily produces death, while frustrated
or attempted homicide does not.140
8.2.7.
When Accused Pleads Guilty to a Capital
Offense. – It is mandatory that the trial prosecutor
must present evidence to prove the guilt of the
accused and the precise degree of his/her culpability,
notwithstanding the waiver made by the accused
during the pre-trial conference.
Section 8.3.
a.
Relevant Jurisprudence. –
Plea bargaining is a process in criminal cases whereby
the accused and the prosecution work out a mutually
satisfactory disposition of the case subject to court
approval. The essence of a plea–bargaining agreement
is the allowance of an accused to plead guilty to a lesser
offense than that charged against him/her.141
Amatan v. Aujero, A.M. No. RTJ-93-956, September 27, 1995.
Gonzales III v. Office of the President, G.R. No. 196231 (September 4, 2012).
140
141
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b.
142
Ordinarily, plea bargaining is made during the pre-trial
stage of the proceedings. xxx But it may also be made
during the trial proper and even after the prosecution
has finished presenting its evidence and rested its case.
Thus, the Court has held that it is immaterial that plea
bargaining was not made during the pre-trial stage or
that it was made only after the prosecution already
presented several witnesses.142
Daan v. Sandiganbayan, G.R. Nos. 163972-77 (March 28, 2008).
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CHAPTER IX
PRE-TRIAL CONFERENCE
Section 9.1. Concept. – Pre-trial is a process whereby the
accused and the prosecutors in a criminal case work out, usually at the
arraignment stage, a naturally satisfactory disposition of a case subject
to Court approval in order to expedite the trial of the case.143
Pre-trial is mandatory in all criminal cases.144
The Court shall, after arraignment and within thirty (30) days from
the date the Court acquires jurisdiction over the person of the accused,
order a pre-trial conference, unless a shorter period is provided for in
special laws or circulars of the Supreme Court.145
The trial prosecutor shall make sure that he appears at the pre-trial
conference to avoid being sanctioned by the Court.146
The pre-trial order binds the parties, limits the trial to matters not
disposed of, and controls the course of the action taken during the trial,
unless modified by the Court to prevent manifest injustice.147
Section 9.2. Guidelines Under the Continuous Trial of
Criminal Cases (A.M. No. 15-06-10-SC). –
a.
The conduct by the branch clerk of court of a preliminary
conference as part of pre-trial should only be done when
the issues are complex. The judges themselves should
conduct the pre-trial.
b.
Proposals for stipulations shall be done by the judge
himself/herself and shall not be left to the counsel.
c.
The documentary evidence of the prosecution and the
defense shall be marked.
Black’s Law Dictionary, supra, at 1037.
Section 1, Rule 118, Revised Rules of Criminal Procedure.
145
Ibid.
146
Section 3, Rule 118, Revised Rules of Criminal Procedure.
147
Section 4, Rule 118, Revised Rules of Criminal Procedure.
143
144
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d.
The Pre-Trial Order shall immediately be served to the
parties and counsel after termination of the pre-trial.
Section 9.3. Subject Matters of a Pre-Trial Conference. – The
Pre-trial conference shall consider the following:
a.
Plea Bargaining. – A process where the accused usually
pleads guilty to a lesser offense or to only one or some of
the counts of a multi–count indictment in return for a
lighter sentence than that for the graver charge.148 It is
not allowed under the Dangerous Drugs Act where the
imposable penalty for the offense charged is reclusion
perpetua to death.
b.
Stipulation of facts. – This refers to the agreement of
the parties on some facts admitted, some facts covered by
judicial notice,149 judicial admissions,150 or on matters not
otherwise disputed by them.
In cases requiring the presentation of government
witnesses or evidence, the trial prosecutor should
exert every effort to secure the admissibility of certain
documentary evidence, e.g., medical or death certificate,
autopsy report, forensic chemistry report, ballistic report,
Philippine Overseas and Employment Administration
(POEA) certification, a certification from the Firearm and
Explosive Unit (FEU) of the PNP that accused was not a
licensee of a firearm of any kind or caliber, and the like, for
expediency of the court proceedings.
The list of witnesses should be qualified by the following
statement: “that other witnesses may be presented in the
course of the trial.”
Whenever necessary, the counter-affidavit of the accused
which was submitted during the preliminary investigation
may be resorted to or availed of to demonstrate or establish
the defense’s theory.
Black’s Law Dictionary, supra, at 1037.
Section 1, Rule 129, Section 1, Revised Rules of Criminal Procedure.
150
Section 2, Rule 129, Section 1, Revised Rules of Criminal Procedure.
148
149
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c.
Marking for Identification of Evidence of the
Parties.
d.
Waiver of Objections to the Admissibility of
Evidence.
e.
Modification of the Order of Trial. – If the accused
admits the charge but interposes a lawful defense.
f.
Such Other Matters. – as will promote a fair and
expeditious trial of the criminal and civil aspects of the
case.
Section 9.4. Non-Appearance at the Pre-Trial Conference. –
The counsel or prosecutor who does not appear at the pre-trial without
acceptable excuse may be sanctioned by the court151
Section 9.5.
Duties of The Prosecutor. –
Before the
Pre-Trial
Conference
1. Should know every
fact and detail of
the case
151
During the PreTrial Conference
1.
Should bear in
mind that in the
course of the trial,
any stipulation /
admission entered
into during the
pre-trial will help
him/her prove his/
her case beyond
reasonable doubt
and that every
act or incident
should be proved
by the testimony
of
qualified
and
competent
witnesses.
After the
Pre-Trial
Conference
1. Should ensure
that
all
agreements
or admissions
made
or
entered during
the
pre-trial
conference
are
reduced
in writing and
signed by the
accused
and
counsel
and
approved by
the court.
Section 3, Rule 118, Revised Rules of Criminal Procedure.
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2.Interview
complainant
other witnesses
the
and
2. The omission of
the signature
of the accused
and
his/her
counsel,
as
mandatorily
required by the
Rules, renders
the Stipulation
of Facts inadmissible in
evidence
3 . E x a m i n e
t h o r o u g h l y
the
available
documentary
and
other
physical
evidence.
Place
importance
on the testimony of
the expert witness
who will help him/
her
determine
the
procedures
undertaken in the
examination of a
subject or thing; the
scientific or technical
terms applied; and
the
reason/s
in
arriving at a certain
conclusion.
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CHAPTER X
TRIAL
Section 10.1. Concept. – A trial is a judicial examination of the
claims at issue in a case which is presented by the prosecution and
defense to enable the Court to arrive at a judgment pronouncing either
the guilt or innocence of the accused.152
The object of a trial is to mete out justice, to convict the guilty and
protect the innocent. Thus, the trial should be a search for the truth
and not a contest over technicalities and must be conducted under such
rules as will protect the innocent.153
The trial prosecutor shall always be prepared to conduct the prosecution
with his/her witnesses who shall be subpoenaed well in advance
of the scheduled trial dates. No postponement of the trial or other
proceedings of a criminal case shall be initiated or caused by the trial
prosecutor except in instances where the postponement is occasioned
by the absence of material witnesses, or for other causes beyond his/her
control, or not attributable to him/her.
Section 10.2. Trial Preparation. –
a. Study the Records of the Case. – Familiarization with
the evidence and applicable laws and jurisprudence.
• Review the records of the case and ensure that all the
documentary evidence is attached.
• Summarize the documentary evidence. The summary must
include the date, signatory of the document, its content
and purpose for presenting the document.
• Research and identify Supreme Court jurisprudence
applicable to the case.
b.
Case Conference. – One of the cardinal rules that a
prosecutor should remember is that he/she should confer
US v. Raymundo, G.R. No. L-4947, November 11, 1909.
23 C.J.S. 274.
152
153
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with his/her witness before presenting the latter in court.
The purposes of conferring with the witness:
• To determine whether the witness has personal knowledge
about case;
• To ascertain if his/her knowledge is relevant and material
to the case;
• To find out the strength and weakness of the witness’s
testimony and the witness himself/herself;
• To refresh the witness’s memory;
• To be briefed on the manner, demeanor and attitude in
the courtroom;
• To familiarize the witness with the rudiments of court
procedure. This includes briefing the witness about physical
set–up of the courtroom, the personalities present, their
roles, their respective positions inside the courtroom, and
how to address them.
During the conference, a witness may give other information
that was not stated in his/her affidavit. Taking down notes
about this might further help in preparation for trial.
c.
Preparation of Trial Guide; Outline. – The prosecutor
shall prepare the trial guide which shall be made a permanent
part of the prosecution’s records of the case.
A. The Case
1. A brief statement of the facts of the case.
2. The prosecution’s theory of the case.
3. Applicable laws and jurisprudence.
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B. Evidence for the Prosecution
1.
The names of prosecution witnesses and the
synopsis of the facts to be testified by each.
2.
A list of exhibits to be presented and marked in
court.
3.
A list of aggravating, mitigating, qualifying, or
other circumstances which are present in the
case.
4.
The facts or points to be proved during the trial.
C. Evidence for the Defense
o
1.
The defense theory.
2.
The names of probable defense. Witnesses and
synopsis of the facts to be testified by each.
3.
A list of probable exhibits for the defense.
4.
The facts expected to be proved by the defense.
Mastery of the Rules of Evidence
•
o
Review the Rules of Evidence. Bring a copy of the Rules
of Court to trial if necessary. There is nothing wrong or
embarrassing about that.
Mastery of the Grounds for Objection
•
Prepare not only how and when to object to the questions
and evidence of the defense but also anticipate and
prepare how to argue and to get your evidence admitted
when the presentation of the same is objected to by the
opposing counsel.
Section 10.3. Going to Trial. –
10.3.1.
Concept. – Every criminal conviction requires the
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prosecution to prove two (2) things:
a.
The fact of the crime, i.e., the presence of all the
elements of the crime for which the accused stands
indicted; and
b.
The fact that the accused is the perpetrator of the
crime.154
No information for a crime will be sufficient if it does not
accurately and clearly allege the elements of the crime charged.
Every element of the offense must be stated in the Information.155
10.3.2. Order of the Presentation of Witnesses. – The
order in the presentation of witnesses will be left to the discretion
of the trial prosecutor. However, the prosecutor should take into
consideration the order of events as established by the evidence
of the prosecution.
Witnesses who will testify for the first time shall be afforded the
opportunity to observe criminal proceedings in court to help
them overcome their anxiety, excitement, and tension.
As far as practicable, crucial witnesses shall be summoned by the
trial prosecutor before the actual trial dates for briefing on their
testimony and demeanor during the trial for orderly and efficient
presentation in court.
10.3.3. Offer of Exhibit. – The trial prosecutor shall safely keep
his/her documentary and other physical evidence and prepare
a list thereof in the order they have been marked as exhibits,
identifying each by letter or number, describing it briefly, and
stating its specific purpose or purposes.
10.3.4. Defense Evidence. – Before reception of evidence for
the defense starts, the trial prosecutor shall ask from the adverse
counsel the number of witnesses he/she intends to present and
the nature of their testimony/ies.
If the names of the defense witnesses are disclosed, the trial
prosecutor shall elicit from reliable sources the whereabouts of
these witnesses, their moral character, background, reasons for
154
155
Jeffrey Reso Dayap v. Pretzy-Lou Sendiong et al., G.R. No. 177960, January 29, 2009.
People v. PO2 Valdez et. al., G.R. No. 175602, January 18, 2012.
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testifying and relationship with the accused, among other things,
to enable him/her to have a clear view of the defense of the
accused.
10.3.5. Admission to the Witness Protection Program
of an Accused Who Has Been Discharged. – An accused
who is discharged from an Information or criminal complaint
in order to serve as a state witness as provided in the preceding
section may, upon his petition, be admitted to the Witness
Protection Program under RA 6981, otherwise known as “The
Witness Protection, Security and Benefit Act” if he/she complies
with the other requirements of said Act.
10.3.6. Other Persons Who May Avail of the Witness
Protection Program. – The trial prosecutor shall recommend
the admission to the Witness Protection Program of the following
persons:
a.
Any person who has witnessed or has knowledge of
or information on the commission of a crime and has
testified or is testifying or is about to testify before any
judicial or quasi-judicial body, or before any investigating
authority, Provided, that:
o
The offense in which his/her testimony will be used
is a grave felony as defined under the Revised Penal
Code or its equivalent under special laws;
o
His/her testimony can be substantially corroborated
on its material points;
o
He or any member of his/her family within the
second civil degree of con–sanguinity or affinity is
subjected to threats to his/her life or bodily injury, or
there is a likelihood that he/she will be killed, forced,
intimidated, harassed, or corrupted to prevent him/
her from testifying, or to testify falsely or evasively,
because or on account of his/her testimony; and
o
He/She is not a law enforcement officer, even if he/
she would be testifying against other law enforcement
officers. In such a case, only the immediate members
of his/her family may avail themselves of the
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protection provided for under the Act.
b.
In case a person, who has participated in the commission
of a crime, desires to be a witness for the State, the
following circumstances must be present:
o
The offense in which his/her testimony will be used
is a grave felony as defined under the Revised Penal
Code or its equivalent under special laws;
o
There is absolute necessity for his/her testimony;
o
There is no other direct evidence available for the
proper prosecution of the offense committed;
o
His/Her testimony can be substantially corroborated
on its material points;
o
He/She does not appear to be the most guilty; and
o
He/She has not at any time been convicted of any
crime involving moral turpitude.
10.3.7. Discharge of Accused to be State Witness.
– When two or more persons are jointly charged with the
commission of any offense, the trial prosecutor, before resting
his/her case, shall move for the discharge of one or more of the
accused with their consent so that they may be witnesses for the
State.
The motion shall indicate that:
a.
There is absolute necessity for the testimony of the
accused whose discharge is requested.156
b.
There is no other direct evidence available for the
proper prosecution of the offense committed, except
the testimony of said accused,157 when he/she alone has
knowledge of the crime, and not when his/her testimony
would simply corroborate or otherwise strengthen the
evidence in the hands of the prosecution.158
Section 17(a), Rule 119, Revised Rules of Criminal Procedure.
Section 17 (b), Rule 119, Revised Rules of Criminal Procedure.
158
Borja v. Borja, et. al, G.R. No. 37792, December 7, 1933.
156
157
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c.
The testimony of said accused can be substantially
corroborated in material points.
d.
Said accused does not appear to be the most guilty.159
Meaning of “not the most guilty” is “not the least
guilty”.160 The rule does not require that he/she be the
“least guilty” but only that he/she not be “the most
guilty”.161
e.
Said accused has not, at any time been convicted of any
offense involving moral turpitude.162
10.3.8. Motions for Postponement by the Accused.
– The trial prosecutor shall vigorously oppose any motion for
postponement initiated by the accused, unless for valid and
compelling reasons. He/She should make of record his objections
thereto, leaving to the Court’s discretion the disposition of the
subject motions.162
10.3.9. Discontinuance of Proceedings. – During the
presentation of the prosecution’s evidence, the trial prosecutor
shall not cause or allow the discontinuance of the proceedings
except for other similarly compelling reasons not attributable to
him/her.
10.3.10. Presentation of Evidence. – The trial prosecutor is
bound to complete the presentation of his/her evidence within the
trial dates assigned to him/her. After the lapse of said dates, he/
she is deemed to have completed his/her evidence presentation.
However, based on serious reasons, he/she may file a verified
motion to allow him/her additional trial dates at the discretion
of the Court.
Section 10.4. Trial Proper. – Upon receipt of the notice of trial, the
prosecutor shall review the record of the case for trial and complete his/
her preparation therefor bearing in mind that trial, once commenced,
may continue from day to day until terminated. He/She may, however,
move for postponement for a reasonable period of time for good cause.163
Lugtu v. Court of Appeals, G.R. No. 103397, August 28, 1996.
People v. Court of Appeals, G.R. No. L-55533, July 31, 1984.
161
People v. Faltado, G.R. Nos. L-1604, L-1712 and L-1713, June 27, 1949.
162
People v. Borja, supra.
163
Section 2, paragraph 1, Rule 119, Revised Rules of Criminal Procedure.
159
160
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10.4.1.
Guidelines Under Continuous Trial. –
The time limitation is not applicable to:
a.
Criminal cases covered by the Rule on Summary
Procedure or where the penalty prescribed by law does
not exceed six (6) months imprisonment, or a fine of One
Thousand Pesos (Php1,000.00) or both, irrespective of
other imposable penalties, is governed by Rule 123.
b.
R.A. No. 4908164 requires such cases to take precedence
over all other cases before our courts except election
and habeas corpus cases. The trial in these cases shall
commence within three days from the date the accused
is arraigned and no postponement of the initial hearing
shall be granted except on the ground of illness on the
part of the accused or other grounds beyond the control
of the accused.
c.
Speedy Trial of Child Abuse cases – The trial of child
abuse cases shall take precedence over all other cases
before the courts, except election and habeas corpus
cases. The trial in these cases shall commence within
three (3) days from the date the accused is arraigned and
no postponement of the initial hearing shall be granted
except on account of the illness of the accused or other
grounds beyond his control.165
d.
Violation of the Republic Act No. 9165166 – Trial of these
cases shall be finished by the Court not later than ninety
(90) days from the date of the filing of the Information.
e.
Under Administrative Code No. 104–96 of the Supreme
Court, the cases of kidnapping and/or kidnapping for
ransom, robbery in band, robbery committed against a
Republic Act No. 4908, otherwise known as “An Act Requiring Judges of Courts to Speedily Try
Criminal Cases Wherein the Offended Party is a Person about to Depart from the Philippines with
No Definite Date of Return” (See Appendix G).
165
Section 21, Rules and Regulations on the Reporting and Investigation of Child Abuse Cases”
issued pursuant to Section 32 of R. A. No. 7610, otherwise known as “the Child Abuse Act” (See
Appendix H)
166
“Comprehensive Dangerous Drugs Act of 2002”.
164
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banking or financial institution, violation of the Republic
Act No. 10883167 committed within the respective
territorial jurisdiction of the Courts shall undergo
mandatory continuous trial and shall be terminated
within sixty (60) days from commencement of the trial.
f.
The Revised Guidelines for Continuous Trial of Criminal
Cases of Criminal Case (AM No. 15-06010-SC) shall
apply to all newly-filed criminal cases, including those
governed by Special Laws and Rules*, in the First and
Second Level Courts, the Sandiganbayan, and the Court
of Tax Appeals as of effectivity date (Sept 1, 2017). The
Revised Guidelines shall also apply to pending criminal
cases with respect to the remainder of the proceedings.
*Comprehensive Dangerous Drugs Act of 2002,
Cybercrime Prevention Act of 2012, Rules of Procedure
for Environmental Cases, Rules of Procedure for
Intellectual Property Rights Cases, and Criminal Cases
cognizable by Family Courts and Commercial Courts.
Motions –
a. Motion for Inhibition. – Motions for inhibition based
on grounds provided for under Rule 137 shall be
resolved immediately or within two (2) calendar days
from date of their filing.
b. Prohibited Motions. – Prohibited motions shall be
denied outright before the scheduled arraignment
without need of comment and/or opposition.
The following motions are prohibited:
167
i.
Motion for judicial determination of probable
cause.
ii.
Motion for preliminary investigation filed
beyond the five (5)-day reglementary period in
inquest proceedings under Section 6, Rule 112,
or when preliminary investigation is required
Republic Act No. 9165, otherwise known as the “New Anti-Carnapping Act of 2016”.
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under Section 8, Rule 112, or allowed in inquest
proceedings and the accused failed to participate
in the preliminary investigation despite due
notice.
iii.
iv.
v.
Motion for reinvestigation of the prosecutor
recommending the filing of information once
the information has been filed before the Court
(1) if the motion is filed without prior leave of
Court; (2) when preliminary investigation is not
required under Section 8, Rule 112; and (3) when
the regular preliminary investigation is required
and has been actually conducted, and the grounds
relied upon in the motion are not meritorious,
such as issues of credibility, admissibility of
evidence, innocence of the accused, or lack of due
process when the accused was actually notified,
among others.
Motion to quash information when the ground is
not one of those stated in Section 3, Rule 117.
Motion for bill of particulars that does not
conform to Section 9, Rule 116.
vi.
Motion to suspend the arraignment based on
grounds not stated under Section 11, Rule 116.
vii.
Petition to suspend the criminal action on the
ground of prejudicial question, when no civil case
has been filed, pursuant to Section 7, Rule 111.
c. Meritorious Motions. – Motions that allege plausible
grounds supported by relevant documents and/or
competent evidence, except those that are already covered
by the Revised Guidelines, are meritorious motions, such
as:
i.
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Motion to withdraw information, or to downgrade
the charge in the original information, or to exclude
an accused originally charged therein, filed by
the prosecution as a result of a reinvestigation,
reconsideration, and review;
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ii.
Motion to quash warrant of arrest;
iii.
Motion to suspend arraignment on the ground of
an unsound mental condition under Section 11 (a),
Rule 116;
iv.
Motion to suspend proceedings on the ground of a
prejudicial question where a civil case was filed prior
to the criminal case under Section 11(b), Rule 116;
v.
Motion to quash information on the grounds that
the facts charged do not constitute an offense, lack of
jurisdiction, extinction of criminal action or liability,
or double jeopardy under Section 3, paragraph (a),
(b), (g), and (i), Rule 117;
vi.
Motion to discharge accused as a state witness under
Section 17, Rule 119;
vii.
Motion to quash search warrant under Section 14,
Rule 126 or motion to suppress evidence; and
viii. Motion to dismiss on the ground that the
criminal case is a Strategic Lawsuit Against Public
Participation (SLAPP) under Rule 6 of the Rules of
Procedure for Environmental Cases.
d.
Motion for postponement. – A motion for postponement
is prohibited, except if it is based on acts of God, force
majeure, or physical inability of the witness to appear and
testify. If the motion is granted based on such exceptions,
the moving party shall be warned that the presentation of
its evidence must still be finished on the dates previously
agreed upon.
Section 10.5. Order of Trial. – Trial shall proceed in the following
order pursuant to Section 11, Rule119 of the Revised Rules of Criminal
Procedure:
a.
The prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.
b.
The accused may present evidence to prove his/her
defense, and damages, if any, arising from the issuance of
any provisional remedy in the case.
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c.
The parties may then respectively present rebutting
evidence only, unless the court, in furtherance of justice,
permits them to present additional evidence bearing upon
the main issue.
d.
Upon admission of the evidence, the case shall be deemed
submitted for decision unless the Court directs the parties
to argue orally or to submit memoranda.
e.
However, when the accused admits the act or omission
charged in the Complaint or Information but interposes
a lawful defense, the order of trial may be modified
accordingly.
Section 10.6. Presentation of Witnesses. –The order in the
presentation of witnesses shall, as far as practicable, conform to
the logical sequence of events obtaining in the case on trial in order
to present a clear, organized and coherent picture to the court of the
prosecution’s evidence.
For example, in the case of prosecution under the Comprehensive
Dangerous Drugs Act of 2002, the trial prosecutor should present the
forensic chemist who examined the dangerous drug ahead of the other
witnesses in order that the court may at once have a view of the real
evidence (either the prohibited or regulated drug subject of the case)
and so that such evidence may be immediately identified by the other
witnesses, thus avoiding the recall of witnesses later on.
The rule of logical sequencing notwithstanding, a witness whose
testimony is vital to the case and whose life is in danger or who may be
sick/injured and may possibly die should be made to testify as early as
practicable.
However, with the implementation of AM No. 15–06–10–SC, particularly
in drugs cases, it is more prudent to subpoena all prosecution witnesses
to make use of court settings intended for said witnesses, and to enter
into as much stipulations as possible in order to expedite the court
proceedings.
Section 10.7.
Conducting Direct Examination. —Direct
Examination is the only opportunity to elicit from the witness all facts
which are important. The examination must be clear, comprehensive,
and must efficiently present the facts of the case. It must be simple
and must be organized logically. It requires not only presenting enough
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evidence but to make sure that the evidence is persuasive.
The primary purpose of direct examination is to build up the prosecutor’s
case by proving the allegations in the Information – all the elements of
the offense and that the accused is the perpetrator of the crime and to
rebut the accused’s defense and evidence.
10.7.1.
How to Conduct Direct Examination. –
•
Questions should be simple, clear, and brief.
•
Avoid asking leading questions – questions that suggest the
answer or are answerable by a “yes” or a “no”. Any question
beginning with words like “did,” “didn’t,” “does,” “doesn’t,”
“is,” “isn’t,” “aren’t,” “will,” “won’t,” “can,” “can’t,” “could,”
“couldn’t,” “would, “ “wouldn’t,” will always call for a “yes”
or “no” answer.
Example
Leading Question
Non–Leading Question
Q. Did you see the shooting?
A. Yes.
Q. What, if anything, did you
observe?
A. I saw the shooting.
Q. Does your neck hurt?
A. Yes.
Q. What part of your body bothers
you?
A. My neck
Q. Isn’t it true that you went
to the police station
immediately after
the
accident?
A. Yes
Q. Where did you go
immediately after the
accident?
A. To the police station
•
Leading Questions are not allowed during direct–
examination
Exceptions:
o
When the witness is unwilling or hostile or
ignorant, a child, feeble–minded, or deaf
mute (leading questions may be allowed at the
discretion of the judge)
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o
On preliminary matters (e.g. “You are a
policeman, are you not?”)
o
When there is no real danger of improper
suggestion
(e.g.
“Is
your
name
Washington Dee Sy?”)
ü
TIP: Sometimes circumstances may force
you to resort to asking leading questions.
This is when the witness forgets an important
detail of his/her testimony and your attempts
to refresh his/her memory in order to elicit
the answer fails. As a strategy, you may ask
leading question (but this must be resorted to
sparingly).
Q.
A.
What did the accused have in his hand
when he approached you?
He had a cellphone in his hand.
Q.
A.
Did he have anything else?
I do not recall?
Q.
Did he have a gun in his hand?
Defense: Objection, leading your Honor.
Court: Sustained. Prosecutor, rephrase your
question.
Q.
A.
ü
Suggesting the answer can also be done in a
subtler way.
Q.
A.
Q.
A.
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What, if anything, did the accused have
in his hand aside from his cellphone?
He had a gun.
How close did you get to the accused
before he shot the deceased?
I was facing him about less than a meter.
What did you notice about him?
He was very angry, with his eyes wide
open and red.
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Q.
A.
Did you notice anything else?
No.
Q.
What if anything did you notice about his
breath?
He smelled alcohol.
A.
•
Questions should be open–ended: 5 “W”s and 1 “H”
– What, When, Where, Who, Why, and How.
Section 10.8. Conducting Cross-Examination. –
10.8.1.
Purposes of Cross-Examination. –
a. To test the credibility of the witness.
b. To elicit admissions from the witness that will either
bolster your case or be adverse to the accused’s case.
c. Reveal bias on the part of the witness.
d. Highlight inconsistencies with other witness’ testimony.
10.8.2. How to Conduct the Cross-Examination. –
1.
Control the witness on Cross-Examination:
Remember “The Ten Commandments”.
c.
d.
e.
f.
e.
f.
g.
h.
Be brief.
Short questions, plain words.
Always ask leading questions.
Do not ask a question, the answer to which you do
not know in advance.
Listen to the witness
Do not quarrel with the witness.
Do not allow the witness to repeat his/her direct
testimony.
Do not permit the witness to explain his/her
answers.
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i. Do not ask one question too many.
j. Save the ultimate point for summation.
2.
Short questions, plain words.
3.
Always ask leading questions.
4.
No question should contain more than one (1)
new fact.
For example, we want to pin the witness down to the fact
that when she saw that the light was red, she was sitting
in her car listening to the radio while parked next to the
curb. A “long” question might be: “Isn’t it a fact that you
were sitting in your car parked by the curb with the radio
on when you noticed that the light was red?” We may
ask that question and the witness may answer “yes” as we
desire. However, it is equally possible that the witness
may seize the opportunity to disagree with the order of the
facts in the question and deny the statement, even though
it is otherwise true. However, notice what happens when
we limit ourselves to “short” or “one new fact” questions:
a. Q. You were in your car, were you not?
A. Yes.
b. Q. You were, at that time, seated, were you not?
A. Yes.
c. Q. And your car was then parked, was it not?
A. Yes.
d. Q. Parked next to the curb, isn’t that a fact?
A. Yes.
e. Q. The radio was on, was it not?
A. Yes.
f.
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Q. And while sitting in your car that was parked next
to the curb with the radio on, you noticed the light,
did you not?
A. Yes.
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g. Q. And the light was red, was it not?
A. Yes.
Wait a minute, you say. Question letter f contained
more than one fact. Indeed, it did, but all the
others contained only one fact and question letter f
contained only one “new” fact, i.e., “you noticed the
light,” all of the other facts contained in Question
number f had already been individually conceded by
the witness.
5.
No more than five (5) words per question,
excluding the leading phrase and connecting
words.
Review the seven questions above. Question 1 contains
five (5) words and a leading phrase. Question 2 contains
three, “you were seated”, plus a connecting phrase,
“at that time”, plus a leading phrase, “were you not?”
Question 3 contains four words: “Your car was parked,”
the connectors, “and” and “then” and a leading phrase,
“was it not?” The analysis of the remaining questions is
one that you should readily be able to do.
By using short questions, we exercise control over the
witness. By obtaining his/her concession to each new
fact necessary to our ultimate goal, we close off avenues
of retreat which would otherwise be available to the
witness as a means for defeating our chosen line of cross–
examination.
6. Do not ask a question, the answer to which you do
not know in advance.
7. Do not quarrel with the witness.
8. Do not allow the witness to repeat his/her direct
testimony.
9. Do not permit the witness to explain his/her
answers.
But, suppose our questions are short, plain, and leading; do
any opportunities still remain? Yes, unless you:
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99
•
Avoid the use of modifiers and generalizations; and
•
Avoid the phrase “you testified on direct examination that
...” or any reasonable facsimile of that phrase.
10. Do not ask one question too many.
11. Save the ultimate point for summation.
12. Listen to the witness.
Section 10.9. Rebuttal Evidence. – The presentation and nature of
rebuttal evidence will depend on the effect which the defense evidence
may have caused on the prosecution’s evidence–in–chief. The recall of a
witness who already testified during the evidence–in–chief presentation
merely to refute what a defense witness may have stated during his/her
defense testimony is generally not rebuttal evidence. Where there is
nothing to refute, rebuttal evidence is unnecessary.
Section 10.10. Request for Subpoena. – In all cases requiring
the appearance in Court of a witness for the purpose of testifying upon
a report (e.g., medico-legal, autopsy, chemistry, ballistics, statement
of accounts, etc.) prepared by him/her or by his/her office, the trial
prosecutor shall indicate the reference number of the report in the
request for subpoena.
The prosecutor shall request the Court to copy furnished the PNP
Chief Directorate, PDEA Director General and other law enforcement
agencies.
Section 10.11. Custody of Physical and Real Evidence
Pending Trial. – In keeping with the professional responsibility of
the trial prosecutor, all the physical and real evidence shall remain in
custody of the police authorities or other law enforcement officers. In
those instances when the evidence is of a perishable nature, the trial
prosecutor shall ensure that measures are taken to provide for secondary
evidence consisting of photographs, or pictures of the physical and real
evidence, which evidence shall be attached to the records of the case.
After the physical/object evidence has been identified by the law
enforcement officer, the trial prosecutor shall turn over the custody of
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the object to the Court or safe keep it under his/her custody considering
that the same has not been formally offered in Court.
Section 10.12. Relevant Jurisprudence. –
a. The general rule is that motions for postponement are granted
only upon meritorious ground and no party has the right to
assume that his/her motion will be granted.168
b.
Under Section 9, Rule 119 of the Revised Rules of Criminal
Procedure, the petitioners have the burden of proving
the factual basis of their motions for the dismissal of the
information on the ground of a denial of their right to a speedy
trial and to a speedy disposition of the cases against them.
They were burdened to prove that such delay caused by the
prosecutor was vexatious, capricious or whimsical. On the
other hand, the prosecutor was burdened to present evidence
to establish that the delay in the submission of his report on
reinvestigation of the cases was reasonably attributed to the
ordinary process of justice, and that the accused suffered no
serious prejudice beyond that which ensued after an inevitable
and ordinary delay.169
c. The trial of an accessory can proceed without awaiting the
result of the separate charge against the principal. The
corresponding responsibilities of the principal, accomplice,
and accessory are distinct from each other. As long as the
commission of the offense can be duly established in evidence,
the determination of the liability of the accomplice or accessory
can proceed independently of that of the principal.170
d. A separate trial is in consonance with the right of an accused
to a speedy trial as guaranteed by the 1987 Constitution,
more specifically under Section 14(2) of Article III thereof.
As defined in the case of Flores v. People, a speedy trial is
one “conducted according to the law of criminal procedure
and the rules and regulations, free from vexatious, capricious
De Guia v. Guerrero, Jr., A.M. No. RTJ-93-1099, August 1, 1994.
Corpuz v. The Sandiganbayan, G.R. No. 162214, November 11, 2004; Lumanlaw v. Judge
Edgardo Peralta, Jr.,
G. R. No. 164953, February 13, 2006.
170 Vino v. People, G.R. No. 84163, October 19, 1989.
168
169
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101
and oppressive delays.” The primordial purpose of this
constitutional right is to prevent the oppression of an
accused by delaying criminal prosecution for an indefinite
period of time. Likewise, it is intended to prevent delays in
the administration of justice by requiring judicial tribunals
to proceed with reasonable dispatch in the trial of criminal
prosecutions.171
g. The rule, therefore, relative to the right of the government
prosecutor to utilize a person who has participated in the
commission of a crime as a witness for the prosecution is, as
follows:
•
When an offense is committed by more than one person,
it is the duty of the prosecutor to include all of them in the
Complaint or Information.172
•
If the prosecutor desires to utilize one of those charged
with the offense as a government witness, the prosecutor
may ask the Court to discharge him/her after complying
with the conditions prescribed by law.173
•
There is nothing in the rule from which it can be inferred
that before a person can be presented as a government
witness, that he/she be first included as a co–accused in
the Information, for the prosecutor is free to produce as
a witness anyone whom he/she believes can testify to the
truth of the crime charged.174
h.
The discharge contemplated by the rule is one effected or
which can be effected at any stage of the proceedings, from the
filing of the Information to the time the defense starts to offer
any evidence.175
i.
The mere fact that the witness sought to be discharged had
pleaded guilty to the crime charged does not violate the rule
that the discharged defendant must not “appear to be the
most guilty”. And even if the witness should lack some of
the qualifications enumerated by Section 17, Rule 119, his/
Dacanay v. People, G.R. No. 101302, January 25, 1995.
Section Rule 110, Revised Rules of Court.
173
Section. 9, Rule 119, Revised Rules of Court.
174
U.S. v. Enriquez, G.R. No. L-15081, December 19, 1919.
175
People v. Aninon, G.R. No l-39083, March 16, 1988.
171
172
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her testimony will not, for that reason alone, be discarded or
disregarded.176
j.
The ground underlying the rule is not to let a crime that has
been committed go unpunished; so an accused who is not the
most guilty is allowed to testify against the most guilty in order
to achieve the greater purpose of securing the conviction of
the more or most guilty and the greatest number among the
accused permitted to be convicted for the offense committed.177
k.
This is an indispensable requirement because it is a notorious
fact in human nature that a culprit who confesses to a crime,
is likely to put the blame on others rather than himself/
herself. Thus, even though a Court may get the statement of
a discharged accused that other persons were engaged in the
crime, it is unsafe to accept, without corroborating evidence,
his/her statements concerning the relative blame to be
attached to different members of his/her gang.178
l.
And by “most guilty,” we mean the highest degree of culpability
in terms of participation in the commission of the offense and
not necessarily the severity of the penalty imposed.179 The rule
does not require that he/she be the “least guilty” but only that
he/she not be “the most guilty.”180
People v. De Leon, et. al., G.R. No. L-13384, June 30, 1960.
People v. Court of Appeals, supra.
178
People v. Mandagan, G.R. No. 28629, September 12, 1928.
179
People v. Sandiganbayan, G.R. Nos. 115439-41, July 16, 1997.
180
People v. Faltado, G.R. Nos. L-1604, L-1712 and L-1713, June 27, 1949.
176
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103
CHAPTER XI
APPEAL/PETITION FOR REVIEW
Section 11.1. What May Be Appealed. – The resolutions of the
Prosecutor General or Provincial/City Prosecutor in criminal cases may
be the subject of a petition for review or appeal.
Section 11.2. Where to File. – A Petition for Review or appeal
may be filed within the period and in the manner herein provided:
11.2.1.
Petitions for Review or appeals from the resolutions of
the Prosecutor General or Provincial/City Prosecutors
in cases which fall under the jurisdiction of the Regional
Trial Court shall be filed with the Office of the Secretary
of Justice.
11.2.2.
All Petitions for Review or appeals from resolutions of
Provincial/City Prosecutors in cases cognizable by the
Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, except in the National
Capital Region, shall be filed with the Regional
Prosecutor concerned who shall resolve such petitions
with finality in accordance with the pertinent rules
prescribed in the said Department Circular.181
11.2.3.
In the National Capital Region, the appeals/Petitions
for Review of the City Prosecutors in cases falling
under the jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts shall be filed with the Office of the Secretary.182
Section 11.3. Period to File. – The Petition for Review or appeal
shall be taken within fifteen (15) days from receipt of the resolution,
or of the denial of the motion for reconsideration/reinvestigation if
one has been filed, within fifteen (15) days from receipt of the assailed
resolution. Only one motion for reconsideration shall be allowed.183
“2000 NPS Rules on Appeal”, D.C. No. 70-A, dated July 10, 2000 (See Appendix I).
Department Circular No. 003 dated January 04, 2017 on the “Guidelines on the disposition of
the Petitions for Review/Automatic Review/Appealed cases filed from July 1, 2016 onwards and
delegation of authority to sign or approve decisions and resolutions thereof”. (See Appendix J).
183
Section 3, Rule 13 of the Revised Rules of Court provides that, “Pleadings may be filed in
court either personally or by registered mail”. In the first case, the date of filing is the date of
181
182
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Section 11.4.
How to File. – An aggrieved party may appeal by
filing a verified Petition for Review or appeal with the Office of the
Secretary of Justice, or the concerned Office of the Regional Prosecutor
and by furnishing copies thereof to the adverse party and the Prosecution
Office issuing the appealed resolution.
The petitioner shall file only the original of the Petition for Review with
its required attachments, and the respondent shall file only the original
of his/her comment thereon. No copy of any document, pleading, or
motion other than the original shall be received. The Petition for Review
and other documents filed in relation thereto shall be deemed to have
been filed on the time and date of filing the paper–based documents.184
All Petitions for Review filed shall have, in addition to its attachments,
a compact disc (CD) containing a PDF file of the Petition for Review
and all its attachments. No petition shall be docketed and deemed filed
without the accompanying CD.185
Section 11.5. Form and Contents. – The Petition for Review or
appeal shall contain or state the following:
a.
The names and addresses of the parties;
b. The NPS Docket Number and criminal case number, if any,
and title of the case, including the offense charged in the
Complaint;
c.
The venue of the preliminary investigation;
d. The specific material dates showing that it was filed on
time;
e.
A clear and concise statement of the facts, the assignment
of errors, and the reasons or arguments relied upon for the
allowance of the appeal; and
receipt. In the second case, the date of mailing is the date of receipt. xxx It is an established
jurisprudence that “the date of delivery of pleadings to a private letter-forwarding agency is not
to be considered as the date of filing thereof in court;” instead, “the date of actual receipt by the
court x x x is deemed the date of filing of that pleading.” Heirs of Numeriano Miranda, Sr. v. Pablo
R. Miranda, G.R. No. 179638, July 8, 2013.
184
Section 3 of Department Circular No. 018 dated March 8, 2017 on “Rule on Electronic Filing of
Petition for Review”, (See Appendix K).
185
Section 2, Ibid.
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105
f.
Proof of service of a copy of the Petition for Review
or appeal to the adverse party and the prosecution
office concerned.
The investigating/reviewing/approving prosecutor shall not be
impleaded as appellee. The party filing the Petition for Review or appeal
shall be referred to as either “complainant–petitioner/ appellant”
or “respondent–petitioner/appellant.”
Section 11.6. Requirements. – The Petition for Review or appeal
must be accompanied by the following:
11.6.1. A compact disc (CD) containing a PDF file of the Petition
for Review and all its attachments. No petition shall be
docketed and deemed filed without the accompanying
CD;
11.6.1.1. Electronic copies. —
The Petition for Review and each of its attachments
shall be individually saved in PDF format, text–
based whenever possible. The filename of each shall
be the same as the document title, viz:
The Petition for Review should bear the filename
“Petition for Review.pdf”;
Annex A — Resolution dated January 10, 2017
should bear the filename, ex. “Annex A — Resolution
dated January 10, 2017.pdf”;
The CD shall contain only the electronic documents
pertaining to the Petition for Review concerned.
In the same manner, all electronic copies of the
petition and its attachments shall be saved in one CD
only. In case the total size of the PDF files exceeds
the capacity of the CD, the excess may be saved in
another CD, provided, that the CD be appropriately
marked and follows the aforementioned format;
Any discrepancy in the paper–based document and
the electronic copy in the CD shall be a ground for
dismissal of the Petition for Review. In the case of
comments, other responsive pleadings and motions,
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the foregoing shall likewise be required, otherwise,
the same shall be deemed not filed.186
11.6.2. Legible duplicate original or certified true copy of the
resolution appealed;
11.6.3. Legible true copies of the complaint, affidavits/sworn
statements (including their translations, if any, duly
certified by the provincial/city prosecutor) and other
evidence submitted by the parties during the preliminary
investigation/reinvestigation;
11.6.4. Proof of service of a copy of the petition to the adverse
party and the Prosecution Office concerned;
11.6.5. A copy of the motion to defer/suspend proceedings duly
filed in court in cases where in an information has been
filed in court pursuant to the appealed resolution;
11.6.6. A verified declaration that the pleadings or motions and
its annexes submitted electronically are complete and
faithful electronic reproductions of the paper–based
documents and annexes;187 and
11.6.7. All paper–based documents shall be submitted in a long
folder, secured with fasteners, and chronologically
paginated from bottom page upwards.188
Evidence submitted for the first time on appeal shall not be admitted. If
submitted, the reviewing prosecutor shall disregard it.
Section 11.7.
Effect of Failure to Comply with The
Procedures and Requirements. – Compliance with the procedures
and all requirements is mandatory and the non–compliance hereof
shall constitute a ground for the dismissal of the petition for review or
appeal.
Section 11.8. When an Information Has Been Filed in Court.
– When an information has already been filed in court, it is the duty of
the appellant to immediately inform the concerned appellate authority
of the action of the court on the motion to defer/suspend proceedings.
Section 2, “Rule on Electronic Filing of Petition for Review”, supra.
Section 4, Section 2, “Rule on Electronic Filing of Petition for Review”, supra.
188
Section 3, “Rule on Electronic Filing of Petition for Review”, supra.
186
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Failure of the petitioner/appellant to take such action shall be a ground
for the dismissal of the petition for review or appeal.
Pending resolution of the appeal, the appellant and the trial prosecutor
shall see to it that the proceedings in court are held in abeyance for sixty
(60) days.
When the accused is arraigned during the pendency of the appeal, the
prosecutor concerned shall likewise immediately inform the Secretary
of Justice or Regional Prosecutor of such an arraignment.
Section 11.9. Appellee’s Comment. – Within a non-extendible
period of fifteen (15) days from receipt of a copy of the petition for review
or appeal, the adverse party may file a verified comment indicating
therein the date of such receipt and submitting proof of service of his/
her comment to the petitioner/appellant and the prosecution office
concerned. If no comment is filed within the prescribed period, the
petition for review or appeal shall be resolved on the basis thereof.
The Appellee shall likewise be required, to submit a CD containing
his comment, attachments and declaration of completeness. If the
comment is submitted without its corresponding CD, the same shall be
deemed not filed.189
Section 11.10. Effect of Filing an Appeal. – Unless the Secretary
of Justice directs otherwise, the Petition for Review or appeal shall not
prevent the filing of the Information in Court on the basis of the finding
of probable cause in the appealed resolution.
Pending the resolution of the Petition for Review or appeal, the accused
may move before the Court for the suspension of the proceedings, to
hold in abeyance the issuance of a warrant of arrest and the deferment
of his/her arraignment.
Section 11.11. Disposition on the Appeal. – The Secretary of
Justice may, in his/her discretion, dismiss the petition: (1) if he/she
finds the same to be patently without merit or manifestly intended for
delay; or (2) when the issues raised therein are too unsubstantial to
require consideration.
If an Information has been filed in Court pursuant to the appealed
Sections 3 and 4, “Rule on Electronic Filing of Petition for Review”, supra.
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resolution, the petition/appeal shall not be given due course if the
accused had already been arraigned.
Section 11.12. Outright Dismissal. – The Secretary may reverse,
affirm or modify the appealed resolution. He/She may, motu propio or
upon motion, dismiss the Petition for Review or appeal on any of the
following grounds:
11.12.1
The petition was filed beyond the period;
11.12.2 The procedure or any of the requirements herein
provided has not been complied with;
11.12.3
There is no showing of any reversible error;
11.12.4
The appealed resolution is interlocutory in nature,
except when it suspends the proceedings based on the
alleged existence of a prejudicial question;
11.12.5
The accused had already been arraigned when the
appeal was taken;
11.12.6
The offense has already prescribed; and
11.12.7
Other legal or factual grounds exist to warrant a
dismissal.
Section 11.13. Withdrawal of the Petition for Review/Appeal.
– Notwithstanding the perfection of the Petition for Review or appeal,
the petitioner/appellant may withdraw the same at any time before it is
finally resolved and, in which case, the appealed resolution shall stand
as though no appeal has been taken.
Section 11.14. Motion for Reconsideration. – The aggrieved
party may file a motion for reconsideration within a non–extendible
period of ten (10) days from receipt of the resolution on Petition for
Review or appeal, furnishing the adverse party and the prosecution
office concerned with copies thereof and submitting proof of such
service. Only one motion for reconsideration shall be entertained.
Section 11.15. Reinvestigation. – If the Secretary of Justice
finds it necessary to reinvestigate the case, the reinvestigation shall
be conducted by the investigating prosecutor, unless, for compelling
reasons, another prosecutor is designated to conduct the same.
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11.15.1. Motion for Reinvestigation Pending Appeal. –
11.15.1.1.
When an Information Has Been Filed
in Court. – If the case is pending appeal and
an Information has been filed in court, the
petitioner/appellant shall inform the court
of the filing of a motion for reinvestigation
with the Office of the Secretary/Regional
Prosecutor and shall ask the court to defer
proceedings. The reinvestigation of the case
shall be conducted by the prosecution office
from which the appeal was taken.190
11.15.1.2.
When an Information Has Not Yet
Been Filed in Court. – At any time
after the filing of the Petition for Review
or appeal and before its resolution, the
petitioner/appellant may file a motion
for reinvestigation before the Office of the
Secretary of Justice/Office of the Regional
Prosecutor on the ground that new and
material evidence has been newly discovered
which petitioner/appellant could not, with
reasonable diligence, have discovered during
the preliminary investigation and which,
if produced and admitted, would probably
change the resolution.
The Office of the Secretary or the Office of
the Regional Prosecutor, as the case may be,
shall then issue a resolution directing the
reinvestigation of the case and dismissal of
the petition.
Section 11.16. Relevant Jurisprudence. –
11.16.1 Section 79 of the Revised Administrative Code defines the
extent of a Department Secretary’s power. xxx The power
of control therein contemplated means (the power of the
Marcelo v. Court of Appeals, G.R. No. 106695, August 4, 1994; Community Rural Bank of
Guimba v. Talavera, A.M. No. RTJ-05-1909, April 6, 2005.
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department head) to alter, modify or nullify or set aside
what a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former for
that of the latter. The power of control implies the right
of the President (and naturally of his/her alter ego) to
interfere in the exercise of such discretion as may be vested
by law in the officers of the national government, as well as
act in lieu of such officers.191
11.16.2 While it is the duty of the prosecutor to prosecute persons
who, according to evidence received from the complainant,
are shown to be guilty of a crime, the Secretary of Justice is
likewise bound by his/her oath of office to protect innocent
persons from groundless, false or serious prosecution.
He/She would be committing a serious dereliction of duty
if he/she orders or sanctions the filing of an Information
based upon a complaint where he/she is not convinced
that the evidence would warrant the filing of the action in
court. As he/she has the power of supervision and control
over prosecuting officers, the Secretary of Justice has the
ultimate power to decide which, as between two conflicting
theories of the complainant and the respondents, should
be believed.192
11.16.3 The DOJ Order allows the filing of an Information in Court
after the consummation of the preliminary investigation
even if the accused can still exercise the right to seek review
of the prosecutor’s recommendation with the Secretary of
Justice.193
11.16.4 There is nothing in Crespo v. Mogul, which bars the DOJ
from taking cognizance of an appeal, by way of a Petition
for Review, by an accused in a criminal case from an
unfavorable ruling of the investigating prosecutor. It
merely advised the DOJ to, “as far as practicable”, refrain
from entertaining a petition for review or appeal from
the action of the prosecutor, when the Complaint or
Information has already been filed in Court.194
Noblejas v. Sales, G.R. Nos. L-31788 and L-31792, September 15, 1975.
Vda. De Jacob v. Puno, G.R. Nos. L-61554-55, July 31, 1984.
193
Solar Entertainment, Inc. v. How, supra.
194
Marcelo v. Court of Appeals, supra, reiterated in the case of Community Rural Bank of Guimba
v. Talavera, A.M. No. RTJ-05-1909, April 6, 2005.
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11.16.5 Petitioners were not barred from appealing from the
resolution holding that only homicide was committed,
considering that their complaint was for murder. By
holding that only homicide was committed, the Provincial
prosecutor’s Office of Pampanga effectively “dismissed”
the complaint for murder. To rule otherwise would be
to forever bar redress of a valid grievance, especially
where the investigating prosecutor demonstrated what
unquestionably appeared to be unmitigated bias in favor
of the accused.195
195
Dimatulac v. Villon, G.R. No. 127107, October 12, 1998.
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CHAPTER XII
PETITION FOR CERTIORARI
Section 12.1. Grounds for Filing Petition for Certiorari.­–
12.1.1 The Court issued an adverse ruling without or in excess of
jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction;
12.1.2 There is no appeal or any plain speedy or adequate
remedy in the ordinary.
Section 12.2. Coverage. – Only Petitions for Certiorari under Rule
65 of the Revised Rules of Court which are to be filed before the Supreme
Court or the Court of Appeals may be acted upon by the Office of the
Prosecutor General.
Section 12.3 Period to File Petition for Certiorari. – The petition
shall be filed with the Supreme Court or the Court of Appeals not later
than sixty (60) days from notice of judgment order/resolution. In
case a motion for reconsideration or new trial is timely filed, whether
such motion is required or not, the sixty (60) day period shall be counted
from notice of the denial of said motions.
Section 12.4. Contents of the Petition for Certiorari. –
a.
A verified statement of the date when notice of the judgment,
order or resolution was received; when a motion for
reconsideration, if any, was filed and; when notice of the denial
was received;
b.
A legible duplicate original or certified true copy of the decision,
judgment or order or resolution subject of the petition,
together with a certification accomplished by the proper clerk
of court or by his/her duly authorized representative or by
the proper officer of the court, tribunal, board, commission or
office involved or by his/her duly authorized representative;
c.
Certification under oath of the requesting prosecutor stating
that he/she has not commenced any other action or proceeding
involving the same issued in the Supreme Court, Court of
Appeals or any other tribunal or agency; and
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d.
As far as practicable, a copy of the transcript of stenographic
notes (TSN), case record, trial brief outlining the proceedings
of the case, documentary evidence; certified copies of decision
to be elevated.
Section 12.5. Action to be Taken by the Trial Prosecutor. –
a.
Draft a petition clearly stating the facts of the case, and the
law and jurisprudence applicable in support thereof.
b.
Forward the draft petition to the Office of the Prosecutor
General for evaluation within fifteen (15) days from receipt of
the assailed decision or order/judgment, with a request that
the same be endorsed to the Office of the Solicitor General.
Section 12.6. Action of the Prosecutor General. –
a.
Denies the request to file a Petition for Certiorari if he/she
finds no merit in the request; or
b.
Approves the request to file a Petition for Certiorari if he/
she finds merit in the request and endorse the draft petition,
together with the attachments within ten (10) days from
receipt of the said draft, to the Office of the Solicitor General.
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REVISED RULES ON SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED
OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE
ON SUMMARY PROCEDURE FOR METROPOLITAN
TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P
Blg. 129) and to achieve an expeditious and inexpensive determination
of the cases referred to herein, the Court Resolved to promulgate the
following Revised Rule on Summary Procedure:
I.
Applicability
Section 1. Scope. — This rule shall govern the summary procedure
in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities,
the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the
following cases falling within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered. Where
attorney’s fees are awarded, the same shall not exceed twenty thousand
pesos (Php20,000.00).
(2) All other civil cases, except probate proceedings, where the total
amount of the plaintiff’s claim does not exceed ten thousand pesos
(Php10,000.00), exclusive of interest and costs.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine
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not exceeding (Php1,000.00), or both, irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising
therefrom: Provided, however, that in offenses involving damage to
property through criminal negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand pesos (Php10,000.00).
This Rule shall not apply to a civil case where the plaintiffs cause of action
is pleaded in the same complaint with another cause of action subject to
the ordinary procedure; nor to a criminal case where the offense charged
is necessarily related to another criminal case subject to the ordinary
procedure.
Sec. 2. Determination of applicability. — Upon the filing of a civil or
criminal action, the court shall issue an order declaring whether or not the
case shall be governed by this Rule A patently erroneous determination
to avoid the application of the Rule on Summary Procedure is a ground
for disciplinary action.
II.
Civil Cases
Sec. 3. Pleadings. —
A. Pleadings allowed. — The only pleadings allowed to be filed are the
complaints, compulsory counterclaims and cross-claims’ pleaded in the
answer, and the answers thereto.
B. Verifications. — All pleadings shall be verified.
Sec. 4. Duty of court. — After the court determines that the case falls
under summary procedure, it may, from an examination of the allegations
therein and such evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for the dismissal of
a civil action. If no ground for dismissal is found it shall forthwith issue
summons which shall state that the summary procedure under this Rule
shall apply.
Sec. 5. Answer. — Within ten (10) days from service of summons,
the defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not asserted
in the answer shall be considered barred. The answer to counterclaims or
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cross-claims shall be filed and served within ten (10) days from service of
the answer in which they are pleaded.
Sec. 6. Effect of failure to answer. — Should the defendant fail
to answer the complaint within the period above provided, the court,
motu proprio, or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint and limited to
what is prayed for therein: Provided, however, that the court may in its
discretion reduce the amount of damages and attorney’s fees claimed for
being excessive or otherwise unconscionable. This is without prejudice
to the applicability of Section 4, Rule 15 of the Rules of Court, if there are
two or more defendants.
Sec. 7. Preliminary conference; appearance of parties. — Not
later than thirty (30) days after the last answer is filed, a preliminary
conference shall be held. The rules on pre-trial in ordinary cases shall
be applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference
shall be a cause for the dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be entitled to judgment on
his counterclaim in accordance with Section 6 hereof.
All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled
to judgment in accordance with Section 6 hereof. This Rule shall not
apply where one of two or more defendants sued under a common
cause of action who had pleaded a common defense shall appear at the
preliminary conference.
Sec. 8. Record of preliminary conference. — Within five (5) days
after the termination of the preliminary conference, the court shall issue
an order stating the matters taken up therein, including but not limited
to:
(a) Whether the parties have arrived at an amicable settlement, and
if so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;.
(c) Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered
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without the need of further proceedings, in which event the
judgment shall be rendered within thirty (30) days from issuance
of the order;
(d) A clear specification of material facts which remain controverted;
and
(e) Such other matters intended to expedite the disposition of the
case.
Sec. 9. Submission of affidavits and position papers. — Within
ten (10) days from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of their witnesses and
other evidence on the factual issues defined in the order, together with
their position papers setting forth the law and the facts relied upon by
them.
Sec. 10. Rendition of judgment. — Within thirty (30) days after
receipt of the last affidavits and position papers, or the expiration of the
period for filing the same, the court shall render judgment.
However should the court find it necessary to clarify certain material
facts, it may, during the said period, issue an order specifying the
matters to be clarified, and require the parties to submit affidavits or
other evidence on the said matters within ten (10) days from receipt of
said order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarificatory affidavits, or the expiration of the period
for filing the same.
The court shall not resort to the clarificatory procedure to gain time for
the rendition of the judgment.
III.
Criminal Cases
Sec. 11. How commenced. — The filing of criminal cases falling within
the scope of this Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in Chartered Cities.
such cases shall be commenced only by information, except when the
offense cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the affidavits of
the compliant and of his witnesses in such number of copies as there are
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accused plus two (2) copies for the court’s files. If this requirement is not
complied with within five (5) days from date of filing, the care may be
dismissed.
Sec. 12. Duty of court. —
(a) If commenced by compliant. — On the basis of the compliant and
the affidavits and other evidence accompanying the same, the court may
dismiss the case outright for being patently without basis or merit and
order the release of the amused if in custody.
(b) If commenced by information. — When the case is commenced
by information, or is not dismissed pursuant to the next preceding
paragraph, the court shall issue an order which, together with copies
of the affidavits and other evidence submitted by the prosecution, shall
require the accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving copies thereof
on the complainant or prosecutor not later than ten (10) days from
receipt of said order. The prosecution may file reply affidavits within ten
(10) days after receipt of the counter-affidavits of the defense.
Sec. 13. Arraignment and trial. — Should the court, upon a consideration
of the complaint or information and the affidavits submitted by both
parties, find no cause or ground to hold the accused for trial, it shall
order the dismissal of the case; otherwise, the court shall set the case for
arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately
arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.
Sec. 14. Preliminary conference. — Before conducting the trial, the
court shall call the parties to a preliminary conference during which a
stipulation of facts may be entered into, or the propriety of allowing the
accused to enter a plea of guilty to a lesser offense may be considered, or
such other matters may be taken up to clarify the issues and to ensure
a speedy disposition of the case. However, no admission by the accused
shall be used against him unless reduced to writing and signed by
the accused and his counsel. A refusal or failure to stipulate shall not
prejudice the accused.
Sec. 15. Procedure of trial. — At the trial, the affidavits submitted
by the parties shall constitute the direct testimonies of the witnesses who
executed the same. Witnesses who testified may be subjected to crossexamination, redirect or re-cross examination. Should the affiant fail to
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testify, his affidavit shall not be considered as competent evidence for the
party presenting the affidavit, but the adverse party may utilize the same
for any admissible purpose.
Except in rebuttal or surrebuttal, no witness shall be allowed to testify
unless his affidavit was previously submitted to the court in accordance
with Section 12 hereof.
However, should a party desire to present additional affidavits or counteraffidavits as part of his direct evidence, he shall so manifest during the
preliminary conference, stating the purpose thereof. If allowed by
the court, the additional affidavits of the prosecution or the counteraffidavits of the defense shall be submitted to the court and served on
the adverse party not later than three (3) days after the termination of
the preliminary conference. If the additional affidavits are presented by
the prosecution, the accused may file his counter-affidavits and serve the
same on the prosecution within three (3) days from such service.
Sec. 16. Arrest of accused. — The court shall not order the arrest
of the accused except for failure to appear whenever required. Release
of the person arrested shall either be on bail or on recognizance by a
responsible citizen acceptable to the court.
Sec. 17. Judgment. — Where a trial has been conducted, the court
shall promulgate the judgment not later than thirty (30) days after the
termination of trial.
IV.
Common Provisions
Sec. 18. Referral to Lupon. — Cases requiring referral to the Lupon
for conciliation under the provisions of Presidential Decree No. 1508
where there is no showing of compliance with such requirement, shall
be dismissed without prejudice and may be revived only after such
requirement shall have been complied with. This provision shall not
apply to criminal cases where the accused was arrested without a warrant.
Sec. 19. Prohibited pleadings and motions. — The following pleadings,
motions or petitions shall not be allowed in the cases covered by this
Rule:
(a)
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Motion to dismiss the complaint or to quash the complaint or
information except on the ground of lack of jurisdiction over
the subject matter, or failure to comply with the preceding
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section;
(b)
Motion for a bill of particulars;
(c)
Motion for new trial, or for reconsideration of a judgment, or
for opening 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;
(h)
Motion to declare the defendant in default;
(i)
Dilatory motions for postponement;
(j)
Reply;
(k)
Third party complaints;
(l)
Interventions.
Sec. 20. Affidavits. — The affidavits required to be submitted under
this Rule shall state only facts of direct personal knowledge of the affiants
which are admissible in evidence, and shall show their competence to
testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who
submits the same to disciplinary action, and shall be cause to expunge
the inadmissible affidavit or portion thereof from the record.
Sec. 21. Appeal. — The judgment or final order shall be appealable
to the appropriate regional trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa Blg. 129. The decision
of the regional trial court in civil cases governed by this Rule, including
forcible entry and unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.
Section 10 of Rule 70 shall be deemed repealed.
Sec. 22. Applicability of the regular rules. — The regular procedure
prescribed in the Rules of Court shall apply to the special cases herein
provided for in a suppletory capacity insofar as they are not inconsistent
herewith
Sec. 23. Effectivity. — This revised Rule on Summary Procedure shall
be effective on November 15, 1991.
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REPUBLIC ACT No. 6036
AN ACT PROVIDING THAT BAIL SHALL NOT, WITH
CERTAIN EXCEPTIONS, BE REQUIRED IN CASES OF
VIOLATIONS OF MUNICIPAL OR CITY ORDINANCES
AND
IN
CRIMINAL
OFFENSES
WHEN
THE
PRESCRIBED PENALTY FOR SUCH OFFENSES IS NOT
HIGHER THAN ARRESTO MAYOR AND/OR A FINE OF
TWO THOUSAND PESOS OR BOTH.
Section 1. Any provision of existing law to the contrary notwithstanding,
bail shall not be required of a person charged with violation of a municipal
or city ordinance, a light felony and/or a criminal offense the prescribed
penalty for which is not higher than six months imprisonment and/or a
fine of two thousand pesos, or both, where said person has established to
the satisfaction of the court or any other appropriate authority hearing
his case that he is unable to post the required cash or bail bond, except
in the following cases:
(a) When he is caught committing the offense in flagranti;
(b) When he confesses to the commission of the offense unless
the confession is later repudiated by him in a sworn statement
or in open court as having been extracted through force or
intimidation;
(c) When he is found to have previously escaped from legal
confinement, evaded sentence, or jumped bail;
(d) When he is found to have previously violated the provisions of
Section 2 hereof;
(e) When he is found to be a recidivist or a habitual delinquent or
has been previously convicted for an offense to which the law
or ordinance attaches an equal or greater penalty or for two or
more offenses to which it attaches a lighter penalty;
(f)
When he commits the offense while on parole or under
conditional pardon; and
(g) When the accused has previously been pardoned by the municipal
or city mayor for violation of municipal or city ordinance for at
least two times.
Section 2. Instead of bail, the person charged with any offense
contemplated by Section 1 hereof shall be required to sign in the
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presence of two witnesses of good standing in the community a sworn
statement binding himself, pending final decision of his case, to report to
the Clerk of the Court hearing his case periodically every two weeks. The
Court may, in its discretion and with the consent of the person charged,
require further that he be placed under the custody and subject to the
authority of a responsible citizen in the community who may be willing
to accept the responsibility. In such a case the affidavit herein mentioned
shall include a statement of the person charged that he binds himself to
accept the authority of the citizen so appointed by the Court. The Clerk
of Court shall immediately report the presence of the accused person
to the Court. Except when his failure to report is for justifiable reasons
including circumstances beyond his control to be determined by the
Court, any violation of this sworn statement shall justify the Court to
order his immediate arrest unless he files bail in the amount forthwith
fixed by the Court.
Section 3. This Act shall apply to all person who, at the time of its
approval, are under temporary detention for inability to post bail for
charges contemplated by Section 1 above.
Section 4. This Act shall take effect upon its approval.
Approved: August 4, 1969
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REPUBLIC ACT No. 4908
AN ACT REQUIRING JUDGES OF COURTS TO SPEEDILY
TRY CRIMINAL CASES WHEREIN THE OFFENDED
PARTY IS A PERSON ABOUT TO DEPART FROM THE
PHILIPPINES WITH NO DEFINITE DATE OF RETURN
Section 1. Any provision of existing laws, executive order, rule or
regulation to the contrary notwithstanding, the trial of criminal cases
wherein the offended party is a person who is about to depart from the
Philippines without a definite date of return, shall take precedence over
all other cases before our courts, except election and habeas corpus
cases. The trial in these cases shall commence within three days from
the date the accused is arraigned and no postponement of the initial
hearing shall be granted except on the ground of illness on the part of
the accused, or other grounds beyond the control of the accused.
Section 2. This Act shall take effect upon its approval.
Approved: June 17, 1967
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RULES AND REGULATIONS ON THE REPORTING AND
INVESTIGATION OF CHILD ABUSE CASES
Pursuant to Section 32 of Republic Act No 7610 (“An Act Providing
For Stronger Deterrence and Special Protection Against Child Abuse,
Exploitation And Discrimination, Providing Penalties For Its Violation
And For Other Purposes”), the following Rules and Regulations are
hereby promulgated concerning the reporting and investigation of child
abuse cases
SECTION 1. Objectives. — These Rules and Regulations seek to
encourage the reporting of cases of physical or psychological injury,
sexual abuse or exploitation, or negligent treatment of children and
to ensure the early and effective investigation of cases of child abuse
towards the prosecution of the offender consistent with the need to
promote the best interest of the child victim.
SECTION 2. Definition of Terms. — As used in these Rules, unless
the context requires otherwise —
a) “Child” shall refer to a person below eighteen (18) years of age
or one over said age and who, upon evaluation of a qualified
physician, psychologist or psychiatrist, is found to be incapable
of taking care of himself fully because of a physical or mental
disability or condition or of protecting himself from abuse;
b) “Child abuse” refers to the infliction of physical or psychological
injury, cruelty to, or neglect, sexual abuse or exploitation of a
child;
c) “Cruelty” refers to any act by word or deed which debases, degrades
or demeans the intrinsic worth and dignity of a child as a human
being. Discipline administered by a parent or legal guardian to
a child does not constitute cruelty provided it is reasonable in
manner and moderate in degree and does not constitute physical
or psychological injury as defined herein;
d) “Physical injury” includes but is not limited to lacerations,
fractured bones, burns, internal injuries, severe injury or serious
bodily harm suffered by a child;
e) “Psychological injury” means harm to a child’s psychological or
intellectual functioning which may be exhibited by severe anxiety,
depression, withdrawal or outward aggressive behavior, or a
combination of said behaviors, which may be demonstrated by a
change in behavior, emotional response or cognition;
f) “Neglect” means failure to provide, for reasons other than poverty,
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adequate food, clothing, shelter, basic education or medical care so
as to seriously endanger the physical, mental, social and emotional
growth and development of the child;
g) “Sexual abuse” includes the employment, use, persuasion,
inducement, enticement or coercion of a child to engage in, or
assist another person to engage in, sexual intercourse or lascivious
conduct or the molestation, prostitution, or incest with children;
h) “Lascivious conduct” means the intentional touching, either
directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of
a person;
i) “Exploitation” means the hiring, employment, persuasion,
inducement, or coercion of a child to perform in obscene exhibitions
and indecent shows, whether live or in video or film, or to pose or
act as a model in obscene publications or pornographic materials,
or to sell or distribute said materials; and
j) “Department” shall refer to a duly authorized officer or social
worker of the Department of Social Welfare and Development or
similar agency of a local government unit.
SECTION 3. Reporting. — A person who learns of facts or
circumstances that give rise to the belief that a child has suffered abuse
may report the same, either orally or in writing, to the Department, to
the police or other law enforcement agency or to a Barangay Council for
the Protection of Children.
SECTION 4. Mandatory Reporting. — The head of any public or private
hospital, medical clinic and similar institution, as well as the attending
physician and nurse, shall report, either orally or in writing, to the
Department the examination and/or treatment of a child who appears
to have suffered abuse within forty-eight (48) hours from knowledge of
the same.
SECTION 5. Duty of Government Workers to Report. — It shall be
the duty of all teachers and administrators in public schools, probation
officers, government lawyers, law enforcement officers, barangay
officials, corrections officers and other government officials and
employees whose work involves dealing with children to report all
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incidents of possible child abuse to the Department.
SECTION 6. Failure to Report. — Failure of the individuals mentioned
in Section 4 above and the administrator or head of the hospital, clinic
or similar institution concerned to report a possible case of child abuse
shall be punishable with a fine of not more than two thousand pesos
(Php2,000.00).
SECTION 7. Immunity for Reporting. — A person who, acting in good
faith, shall report a case of child abuse shall be free from any civil or
administrative liability arising therefrom. There shall be a presumption
that any such person acted in good faith.
SECTION 8. Investigation. — Not later than forty-eight (48) hours
after receipt of a report on a possible incident of child abuse, the
Department shall immediately proceed to the home or establishment
where the alleged child victim is found and interview said child to
determine whether an abuse was committed, the identity of the
perpetrator and the need of removing the child from his home or the
establishment where he may be found or placing him under protective
custody pursuant to Section 9 of these Rules. Whenever practicable, the
Department shall conduct the interview jointly with the police and/or a
barangay official.
To minimize the number of interviews of the child victim, his statement
shall be transcribed or recorded on voice or video tape.
SECTION 9. Protective Custody. — If the investigation discloses
sexual abuse, serious physical injury of life-threatening neglect of the
child, the duly authorized officer or social worker of the Department
shall immediately remove the child from his home or the establishment
where he was found and place him under protective custody to ensure
his safety.
SECTION 10. Immunity of Officer Taking the Child Under Protective
Custody. — The duly authorized officer or social worker of the Department
and the assisting police officer or barangay official, if any, who shall take
a child under protective custody shall be exempt from any civil, criminal
and administrative liability therefor.
SECTION 11. Notification of Police. — The Department shall inform
the police or other law enforcement agency whenever a child victim is
placed under protective custody.
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SECTION 12. Physical Examination; Interview. — The
Department shall refer the child who is placed under protective
custody to a government medical or health officer for a physical/mental
examination and/or medical treatment. Thereafter, the Department
shall determine the rehabilitation or treatment program which the child
may require and to gather data relevant to the filing of criminal charges
against the abuser.
SECTION 13. Involuntary Commitment. — The Department
shall file a petition for the involuntary commitment of the child victim
under the provisions of Presidential Decree No. 603, as amended, if the
investigation confirms the commission of child abuse.
SECTION 14. Suspension or Deprivation of Parental Authority.
— The Department shall ask the Court to suspend the parental authority
of the parent or lawful guardian who abused the child victim, Provided,
that in cases of sexual abuse, the Department shall ask for the permanent
deprivation of parental authority of the offending parent or lawful
guardian.
SECTION 15. Transfer of Parental Authority. — The Department
shall, in case of suspension or deprivation of parental authority and if
the child victim cannot be placed under the care of a next of kin, ask
the proper Court to transfer said authority over the child victim to
the Department or to the head of a duly accredited children’s home,
orphanage or similar institution.
SECTION 16. Who May File a Complaint. — A complaint against a
person who abused a child may be filed by the —
a. offended party;
b. parent or legal guardian;
c. ascendant or collateral relative of the child within the third
degree of consanguinity
d. duly authorized officer or social worker of the Department;
e. officer, social worker or representative of a licensed child caring
institution;
f. Barangay Chairman; or
g. at least three (3) concerned responsible citizens of the
community where the abuse took place who have personal
knowledge of the offense committed.
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SECTION 17. Filing of Criminal Case. — The investigation report
of the Department and/or of the police or other law enforcement agency
on the abuse of a child, together with the results of the physical/mental
examination and/or medical treatment and other relevant evidence, shall
be immediately forwarded to the provincial or city prosecutor concerned
for the preparation and filing of the appropriate criminal charge against
the person who allegedly committed the abuse.
SECTION 18. Closure of Establishments. — The Department
shall immediately close the establishment or enterprise found to have
promoted, facilitated or conducted activities constituting child abuse.
The closure shall be for a period of not less than one (1) year. Upon said
closure, the Department shall post signs with the words “off limits” in
conspicuous places outside the premises of the closed establishment or
enterprise. The unauthorized removal of said sign shall be punishable by
prision correccional.
The Department shall seek the assistance of the local government unit
concerned or the police or other law enforcement agency in the closure
of an offending establishment or enterprise.
The Department shall also file the appropriate criminal complaint
against the owner or manager of the closed establishment or enterprise
under the provisions of R.A. 7610, the Revised Penal Code, as amended,
or special laws. An establishment or enterprise shall be presumed to
promote or facilitate child abuse if the acts constituting the same occur
within its premises. An establishment such as a sauna parlor, travel
agency, or recruitment agency which promotes acts of child sexual abuse
as part of a tour program; exhibits children in a lewd or indecent show;
provides child masseurs or masseuses for adults of the same or opposite
sex and includes any lascivious conduct as part of the services that are
rendered; or solicits children for activities constituting sexual abuse
shall be deemed to have promoted or facilitated child abuse.
SECTION 19. Guardian Ad Litem. — Upon the filing of the criminal
complaint for child abuse, the Department shall ask the appropriate
court to appoint a guardian ad litem to represent the best interests of the
child. The guardian ad litem shall —
a) explain to the child the legal proceedings in which the child will be
involved;
b) advise the judge, when appropriate, and as a friend of the court,
regarding the child’s ability to understand the proceedings and
questions propounded therein;
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c) advise the prosecutor concerning the ability of the child to cooperate
as a witness for the prosecution;
d) attend all investigations, hearings and trial proceedings in which
the child is a participant; and
e) monitor and coordinate concurrent administrative and court
actions.
SECTION 20. Confidentiality of Identity of Victim. — At the
request of the victim or his representative, the name of the child shall
be withheld by the Department until the court has acquired jurisdiction
over his case.
SECTION 21. Speedy Trial of Child Abuse Cases. — The trial of
child abuse cases shall take precedence over all other cases before the
courts, except election and habeas corpus cases. The trial in said cases
shall commence within three (3) days from the date the accused is
arraigned and no postponement of the initial hearing shall be granted
except on account of the illness of the accused or other grounds beyond
his control.
SECTION 22. Protection of Victim from Undue Publicity. — The
prosecutor in a child abuse case shall, taking into consideration the age,
psychological maturity and understanding of the child victim, the nature
of the unlawful acts committed, the desire of the victim and the interests
of the child’s family, take the necessary steps to exclude the public during
the giving of testimony of the child victim; to limit the publication of
information, photographs or artistic renderings that may identify the
victim; and to prevent the undue and sensationalized publicity of the
case.
SECTION 23. Confidentiality of Records. — All records pertaining
to cases of sexual abuse shall be strictly confidential and no information
relating thereto shall be disclosed except in connection with any court or
official proceeding based thereon.
The unauthorized disclosure of the aforementioned records shall be
punishable by a fine of not more than two thousand four hundred pesos
(P2,400.00) or by imprisonment of not more than one (1) year or such
fine and imprisonment.
SECTION 24. Effectivity. — These Rules shall take effect upon
the approval of the Secretary of Justice and fifteen (15) days after its
publication in two (2) national newspapers of general circulation.
Done in the City of Manila: October 1993.
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July 3, 2000
DEPARTMENT CIRCULAR NO. 70
SUBJECT : 2000 NPS RULE ON APPEAL
In the interest of expeditious and efficient administration of justice and
in line with recent jurisprudence, the following Rule governing appeals
from resolutions of prosecutors in the National Prosecution Service, to
be known as the 2000 NPS Rule on Appeal, is hereby adopted.
SECTION 1. Scope. - This Rule shall apply to appeals from resolutions
of the Chief State Prosecutor, Regional State Prosecutors and Provincial/
City Prosecutors in cases subject of preliminary investigation/
reinvestigation.
SECTION 2. Where to appeal. An appeal may be brought to the
Secretary of Justice within the period and in the manner herein provided.
SECTION 3. Period to appeal. The appeal shall be taken within
fifteen (15) days from receipt of the resolution, or of the denial of the
motion for reconsideration/reinvestigation if one has been filed within
fifteen (15) days from receipt of the assailed resolution. Only one motion
for reconsideration shall be allowed.
SECTION 4. How appeal taken. An aggrieved party may appeal
by filing a verified petition for review with the Office of the Secretary,
Department of Justice, and by furnishing copies thereof to the adverse
party and the Prosecution Office issuing the appealed resolution.
SECTION 5. Contents of petition. - The petition shall contain or
state: (a) the names and addresses of the parties; (b) the Investigation
Slip number (I.S. No.) and criminal case number, if any, and title of the
case, including the offense charged in the complaint; (c) the venue of the
preliminary investigation; (d) the specific material dates showing that
it was filed on time; (e) a clear and concise statement of the facts, the
assignment of errors, and the reasons or arguments relied upon for the
allowance of the appeal; and (f) proof of service of a copy of the petition
to the adverse party and the Prosecution Office concerned.
The petition shall be accompanied by legible duplicate original or
certified true copy of the resolution appealed from together with legible
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true copies of the complaint, affidavits/sworn statements and other
evidence submitted by the parties during the preliminary investigation/
reinvestigation. If an information has been filed in court pursuant to the
appealed resolution, a copy of the motion to defer proceedings filed in
court must also accompany the petition. The investigating/reviewing/
approving prosecutor shall not be impleaded as party respondent in the
petition. The party taking the appeal shall be referred to in the petition as
either “Complainant-Appellant” or “Respondent- Appellant”.
SECTION 6. Effect of failure to comply with requirements. The
failure of the petitioner to comply with any of the foregoing requirements
shall constitute sufficient ground for the dismissal of the petition.
SECTION 7. Action on the petition. The Secretary of Justice may
dismiss the petition outright if he finds the same to be patently without
merit or manifestly intended for delay, or when the issues raised therein
are too unsubstantial to require consideration. If an information has
been filed in court pursuant to the appealed resolution, the petition
shall not be given due course if the accused had already been arraigned.
Any arraignment made after the filing of the petition shall not bar the
Secretary of Justice from exercising his power of review.
SECTION 8. Comment. Within a non-extendible period of fifteen
(15) days from receipt of a copy of the petition, the adverse party may
file a verified comment, indicating therein the date of such receipt and
submitting proof of service of his comment to the petitioner and the
Prosecution Office concerned. Except when directed by the Secretary
of Justice, the investigating/reviewing/approving prosecutor need not
submit any comment. If no comment is filed within the prescribed
period, the appeal shall be resolved on the basis of the petition.
SECTION 9. Effect of the appeal. Unless the Secretary of Justice
directs otherwise, the appeal shall not hold the filing of the corresponding
information in court on the basis of the finding of probable cause in the
appealed resolution. The appellant and the trial prosecutor shall see to it
that, pending resolution of the appeal, the proceedings in court are held
in abeyance.
SECTION 10. Withdrawal of appeal. Notwithstanding the perfection
of the appeal, the petitioner may withdraw the same at any time before
it is finally resolved, in which case the appealed resolution shall stand as
though no appeal has been taken.
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SECTION 11. Reinvestigation. If the Secretary of Justice finds it
necessary to reinvestigate the case, the reinvestigation shall be held by
the investigating prosecutor, unless, for compelling reasons, another
prosecutor is designated to conduct the same.
SECTION 12. Disposition of the appeal. The Secretary may reverse,
affirm or modify the appealed resolution. He may, motu proprio or upon
motion, dismiss the petition for review on any of the following grounds:
• That the petition was filed beyond the period prescribed in
Section 3 hereof;
• That the procedure or any of the requirements herein provided
has not been complied with;
• That there is no showing of any reversible error;
• That the appealed resolution is interlocutory in nature, except
when it suspends the proceedings based on the alleged existence
of a prejudicial question;
• That the accused had already been arraigned when the appeal
was taken;
• That the offense has already prescribed; and
• That other legal or factual grounds exist to warrant a dismissal.
SECTION 13. Motion for reconsideration. The aggrieved party
may file a motion for reconsideration within a non-extendible period of
ten (10) days from receipt of the resolution on appeal, furnishing the
adverse party and the Prosecution Office concerned with copies thereof
and submitting proof of such service. No second or further motion for
reconsideration shall be entertained.
SECTION 14. Repealing clause. This Circular supersedes Department
Order No. 223 dated June 30, 1993 and all other Department issuances
inconsistent herewith.
SECTION 15. Effectivity. This Circular shall be published once in two
(2) newspapers of general circulation, after which it shall take effect on
September 1, 2000.
(signed)
ARTEMIO G. TUQUERO
Secretary of Justice
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July 10, 2000
DEPARTMENT CIRCULAR NO. 70-A
SUBJECT: DELEGATION OF AUTHORITY TO REGIONAL
STATE PROSECUTORS TO RESOLVE APPEALS IN CERTAIN
CASES
In order to expedite the disposition of appealed cases governed by
Department Circular No. 70 dated July 3, 2000 (“2000 NPS RULE
ON APPEAL”), all petitions for review of resolutions of Provincial/
City Prosecutors in cases cognizable by Metropolitan Trial Courts,
and Municipal Trial Courts and Municipal Circuit Trial Courts, except
in the National Capital Region, shall be filed with the Regional State
Prosecutor concerned who shall resolve such petitions with finality in
accordance with the pertinent rules prescribed in the said Department
Circular.
The foregoing delegation of authority notwithstanding, the Secretary of
Justice may, pursuant to his power of supervision and control over the
entire National Prosecution Service and inthe interest of justice, review
the resolutions of the Regional State Prosecutors in appealed cases.
This Circular shall be published once in two(2) newspapers of general
circulation, after which it shall take effect on September 1, 2000.
(signed) ARTEMIO G. TUQUERO
Secretary of Justice
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